FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on May 11, 2007, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint.

 

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)(A), G.S.

 

2.  It is found that by email dated January 9, 2007, addressed to the chief operating officer of the City of Hartford, with copies to eight other email addresses (including the Director of the respondent), the complainant requested disclosure of information in two categories: a) all information concerning the complainant; and b) all complaints filed against Community Solutions, Inc. concerning any of its facilities within the City of Hartford (both items together being the “requested records”). This written request followed a verbal request the previous day (January 8, 2007) to a clerk in the corporation counsel’s office who instructed the complainant to make his request in writing. On January 8, 2007, while making his verbal request, the complainant stated that he was indigent. However, the written request of January 9, 2007 did not include any claim of indigence.

 

3.  By email dated January 18, 2007, an administrative assistant in the respondent Department offered the complainant the records described at paragraph 2b, above, indicating that the fee for eleven pages would be $11.00. In response, by email also dated January 18, 2007, the complainant asserted his indigence to the Director of the respondent.     

    

4.  By email dated and filed with the Freedom of Information Commission (“FOIC” or sometimes the “Commission”) on January 22, 2007, the complainant appealed to the Commission, alleging that the respondent failed to provide the requested records without a copying charge, which, because the complainant was indigent, was in violation of the Freedom of Information Act (“FOIA”). At the hearing, the complainant also alleged a promptness violation.

 

5.  Section 1-210(a), G.S., states 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. 

 

6.  Section 1-212, G.S., states in relevant parts:

 

(a) Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. 

 

….

 

(d) The public agency shall waive any fee provided for in this section when:

 

(1) The person requesting the records is an indigent individual; (emphasis added)

 

7.  It is concluded that the requested records described in paragraph 2, above, are “public records” within the meaning of §§1-200(5) and 1-210(a), G.S.  

 

8.  It is finally found that on February 23, 2007, the complainant paid a $5.00 copying charge and received copies of the eleven pages of records described at paragraph 2b, above. 

 

9.  It is found that the respondent has not provided or otherwise addressed the request for records described at paragraph 2a, above. At the hearing, however, the complainant mentioned his request for records described at paragraph 2a, above, only once in passing.   It is also found that an emotional atmosphere surrounded the complainant’s records request. It is therefore found that the complainant did not press his request for records described at paragraph 2a, above, and that it became lost in the web of conflict that ensued between the complainant and various representatives of the City of Hartford.

 

10.  It is found that neither the respondent, nor the City of Hartford generally, has adopted any standard for determining indigence for purposes of the FOIA.

 

11.  It is found that the complainant also asserted his indigence to the City of Hartford Corporation Counsel, but that no forms for a claim of indigence were forwarded to the complainant. It is also found that, pursuant to the Regulations of Connecticut State Agencies §1-21j-38, the complainant was also afforded the opportunity to file an after- filed exhibit, corroborating his claim that he faxed a claim of indigence to the respondent. However, the complainant did not file any such evidence.

 

12.  It is found that the complainant did not have any substantial funds at the time of his records request; that he had been recently released from a halfway house following incarceration; that he lived with his family; and that a third person gave the $5.00 copying fee to him.

 

13.  It is concluded that the records offered to the complainant on January 18, 2007 were offered promptly, seven business days following the request, albeit with a legally excessive copying fee, even putting aside the question of indigence.

 

14.  It is concluded that the standard for establishing indigence, and therefore waiver of copying fees, is wholly within the discretion of the custodial public agency, as long as the standard is objective, fair and reasonable, and applied in a nondiscriminatory manner. Thomas May v. Freedom of Information Commission, Docket No. HHB CV 06-4011456, Superior Court, J.D. of New Britain, Memorandum of Decision dated May 2, 2007 (Schuman, J.).

 

15.  It is also concluded that the complainant was never given an opportunity to prove his indigence because the respondent does not have any standard for determining indigence for purposes of the FOIA and was not able to provide him with any forms to demonstrate that he met an ascertainable standard.   

 

16.  In the absence of standards set by the respondent or the City of Hartford generally, it is concluded, based on the findings at paragraph 12, above, that the complainant was indigent at the time he made his request on January 9, 2007. See Docket #FIC 2005-304, Nappi v. New Haven Police Department (concludes fee must be waived when agency failed to establish that it had a documented criteria for determining indigence and that the complainant did not meet that criteria).

 

17.  It is therefore concluded that the respondent violated the requirements of §1-212(d)(1), G.S., when it charged the complainant a fee for copies on February 23, 2007 and failed to waive the copying fee for an indigent individual.       

 

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

 

1.  The respondent shall forthwith adopt standards as to who is indigent for purposes of the FOIA. As an aid to the respondent, various FOIC decisions concerning standards of indigence are set forth in Endnote hereto.       

 

            2.  The respondent shall forthwith refund the $5.00 copying fee to the complainant.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of June 27, 2007.

 

________________________________

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:

 

Angel Morales

49 Margarita Drive

Hartford, CT 06106

 

Health and Human Services Department,

City of Hartford

c/o John Rose, Jr., Esq.

Corporation Counsel

City of Hartford

550 Main Street

Hartford, CT 06103

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-049FD/paj/7/2/2007

 

 

                                                                                   

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                                                                ENDNOTE

 

 

Docket #FIC 2005-219, Rossi v. West Haven (test for determining indigence based on the definition set forth in Black’s Law Dictionary and §17a-495, G.S., is on its face objective, fair and reasonable); Docket #2005-134, Fuller v. Department of Correction (standard is met if an inmate’s account contains less than $5.00 and no more than $5.00 for a period of ninety days); Docket #2002-297, Connecticut Civil Liberties Union Foundation v. Connecticut Housing Finance Authority (not unfair or unreasonable to require documentation of income statement of client, and proof that such client has no means to pay FOIA fees); Docket #FIC 1999-094, Levine v. Norwich (approves application of Black’s Law Dictionary definition of indigence and the poverty level criteria utilized by the NDSS); Docket #FIC 1993-354, Libby v. Middletown (approving criteria based on the definition of indigent in Black's Law Dictionary, information received from the Welfare and Tax Assessor's Departments and the agency’s knowledge regarding the complainant's lifestyle); Docket #FIC 1991-356, Kulick v. West Hartford (reliance upon the federal government's established poverty levels for guidance in establishing a working definition of indigence not shown to be subjective, unfair or unreasonable); Docket #FIC 1987-264, Cooper v. East Hartford Police Department (evidence that requestor has received donations of approximately $2,000 from former co-workers to assist in the payment of legal fees connected with the suspension of his employment, that requestor also owns a car, maintains an apartment and has approximately $8,000 in a savings account, sufficient for agency to establish lack of indigence); Docket #FIC 1995-105, Dietzko v. Plainville (failure by agency to show that it used objective criteria, guidelines or standards to determine indigence, or that such an indigence standard was in fact applied to the complainant); Docket #FIC 1995-426, Presutti v. Department of Housing (no reasonable standard or application of standard when the agency relies on tax returns indicating only that requestor was married but filing separately as opposed to filing a joint income tax return, that requestor lived in a home and that he had a certain dress and appearance that did not comport with the agency’s conception of indigence status, and that the requestor was generally known to have worked as a real estate developer who had undertaken projects that required financial backing).