FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on October 25, 2004, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.   The complainant, who is incarcerated, appeared via teleconference, pursuant to the January 2004 memorandum of understanding between the Commission and the Department of Correction.  See  Docket No. CV 03-0826293, Anthony Sinchak v. FOIC et al, Superior Court, J.D. of Hartford at Hartford,  Corrected Order dated January 27, 2004 (Sheldon, J.). 

 

            After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

1.  The respondent is a public agency within the meaning of §1-200(1), G.S.

 

2.  By letter of complaint filed March 2, 2004, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to respond to his request for records.     

 

            3.  It is found that by letter dated February 10, 2004 to Trooper Fox of the respondent’s Troop E Barracks, the complainant requested copies of:

 

[a]ll investigative reports, statements and any documents produced from [the] call you [Fox] responded to at Corrigan Correctional Institution on July 7, 2002 regarding inmate Andrew W. Cook #103713.  That includes minutes or notes made by Lt. Gagnon’s calling C.S.P. at 10:30 p.m.

 

4.  It is found that Trooper Fox neither replied to the complainant’s request, nor forwarded a copy of the request to any other office of the respondent.

 

5.  It is found that the respondent maintains records responsive to the complainant’s request.

 

6.  Section 1-200(5), G.S., provides:

 

    “Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

7.  It is concluded that the requested investigative records are public records within the meaning of §1-200(5), G.S.

 

8.  Section 1-210(a), G.S., provides in relevant part:

 

    Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. 

 

9.  Section 1-206(a), G.S., provides in relevant part:

 

     Any denial of the right to inspect or copy records provided for under section 1-210 shall be made to the person requesting such right by the public agency official who has custody or control of the public record, in writing, within four business days of such request, except when the request is determined to be subject to subsections (b) and (c) of section 1-214, in which case such denial shall be made, in writing, within ten business days of such request.  Failure to comply with a request to so inspect or copy such public record within the applicable number of business days shall be deemed to be a denial.

 

10.  It is concluded that the respondent, through Trooper Fox, violated §1-206(a), G.S., by failing to make a denial in writing to the complainant within four business days of his request.

 

11.  It is found that, following the issuance of a notice from the Commission dated May 26, 2004 that the Commission had received a complaint alleging a violation against the respondent,  the respondent replied to the complainant on June 3, 2004, indicating that the Department had no record of having received the February 10, 2004 request to Trooper Fox, but that it would conduct a search for the requested records upon receipt of the complainant’s date of birth and a check for $8.00, pursuant to §29-10b, G.S.           

 

12.  Section 29-10b, G.S., provides:

       The Commissioner of Public Safety shall charge the following fees for the item or service indicated:

      (1) Each search of the record files made pursuant to a request for a copy of an accident or investigative report which results in no document being produced, six dollars, and on and after July 1, 1993, eight dollars.

      (2) Each copy of an accident or investigative report, six dollars, and on and after July 1, 1993, eight dollars.

            13.  It is found that the only records maintained by the respondent that are responsive to the complainant’s request are “investigative reports” within the meaning of §29-10b, G.S.        

 

14.  It is found that the complainant declined to pay the eight dollars, and instead asserted his indigence by letter dated September 7, 2004.       

 

            15.  Section 1-225(d)(1)  provides:  “The public agency shall waive any fee provided for in this section [1-225] when: (1)  The person requesting the records is an indigent individual….”

 

16.  Since the fee provided for in section 29-10b, G.S. is not a fee provided for in §1-225, G.S., and §29-10b, G.S., does not itself provide for an indigence waiver, it does not appear that the complainant may avoid the eight dollar fee under §29-10b, G.S., by claiming indigence under §1-225, G.S.  However, since the respondent acknowledged to both the complainant and the Commission that it would waive the fee under §29-10b, G.S., if the complainant demonstrated that he was in fact indigent, the Commission will address the claim.

 

17.  The complainant’s application for a waiver of fees asserted that he was without funds, was unable to pay copy fees, and had 97 cents in his prison account and no assets.  The application was sworn before a notary public.

 

18.  It is found that the respondent by letter dated September 15, 2004 replied that the complainant’s application for a waiver of fees did not meet the standard of proof for indigence, and that the complainant should submit verified notarized proof of his indigence, for example a certified copy of his most recent Department of Correction (“DOC”) account statement for the last six months.

 

            19.  It is found that the complainant did not submit any further proof of his indigence to the respondent or to the Commission.

 

            20.  At the hearing, the respondent sought to introduce copies of the complainant’s DOC account statements, and copies of sales receipts indicating the complainant’s purchases.  The purpose of this offer of evidence was to demonstrate that the complainant had funds in his account, and had expended funds on discretionary items.  Those records were marked at the hearing on this matter for identification only as respondent’s exhibits 1 and 2.

 

            21.  Paragraph 6 of the January 2004 Memorandum of Understanding between the FOIC and DOC, which governs this proceeding, provides:

 

      Documentary evidence may be introduced in a contested case involving an inmate under the jurisdiction of the Commissioner only if a copy of the proposed evidence is provided to, and received by, the FOIC and each party prior to the scheduled hearing in such case.

 

            22.  It is found that the copies of the complainant’s DOC account statements and sales receipts were not provided to or received by either the complainant or the FOIC prior to the scheduled hearing in this case. 

 

            23.  It is therefore concluded that the copies of the account statements and sales receipts may not be introduced into evidence, and the respondent’s motion to do so is denied.

 

            24.  However, it is also found that the complainant offered no affirmative proof of his indigence, had purchased commissary items such as candy bars in total amounts well exceeding $8.00, maintained an average of $60.00 in his account, and conceded at the hearing that he “could have come up with eight dollars.”

 

            25.  It is therefore concluded that the complainant failed to prove that he is indigent within the meaning of §1-225(d)(1), G.S.

 

            26.  It is concluded that the respondent did not violate any provision of the FOI Act by demanding payment of $8.00 from the complainant before conducting a search for the requested records.

 

            27.  At the request of the hearing officer, in the interest of administrative efficiency and in order to avoid additional proceedings on this matter, the respondent conducted a thorough search for records responsive to the complainant’s request, although he had not paid the $8.00 fee pursuant to §29-10b, G.S.

 

            28.  It is found that the respondent maintains a five-page report that is responsive to the complainant’s request, which report was submitted for in camera inspection.

            29.  The respondent maintains that page 5 and lines 1 through 9 of page 3 of the in camera records are exempt from disclosure pursuant to §1-210(b)(3)(B), G.S.

 

            30.  Section 1-210(b)(3)(B), G.S., provides that disclosure is not required of “signed statements of witnesses.”

 

            31.  It is found that page 5 of the in camera records is a signed statement of a witness.

 

            32.  It is also found that lines 1 through 9 of page 3 of the in camera records repeat the statements made in the witness statement, however, it is also found that lines 1 through 9 of page 3 are not a signed witness statement within the meaning of §1-210(b)(3)(B), G.S., and are therefore not exempt from disclosure.

 

            33.  It is concluded that page 5 of the in camera records is exempt from disclosure pursuant to §1-210(b)(3)(B), G.S.

 

 

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

            1.  Henceforth the respondent shall strictly comply with the requirements of §1-206(a), G.S.     

 

2.  With respect to the allegation that the respondent improperly required the payment of an $8.00 fee pursuant to §29-10b, the complaint is dismissed.

 

3.      The Commission thanks the respondent for conducting a thorough search of

its records without the complainant having first paid the $8.00 fee.  Upon receipt of $8.00 by the respondent from the complainant, the respondent shall provide copies of the in camera records except page 5 with exempt information redacted.

 

 

 

 

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 9, 2005.

 

________________________________

Petrea A. Jones

Acting Clerk of the Commission

PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

 

THE PARTIES TO THIS CONTESTED CASE ARE:

 

Andrew Cook, #103713

MacDougall Correctional Institution

1153 East Street, South

Suffield, CT 06080

 

Commissioner, State of Connecticut,

Department of Public Safety,

Division of State Police

c/o Neil Parille, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-109FD/paj/2/15/2005