FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on October 1, 2009, at which time the complainant and respondents 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 respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.      By letter dated March 12, 2009, and filed on March 16, 2009, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his February 27, 2009 request for records, and denying his request for a waiver of copying fees by reason of the complainant’s alleged indigence.  The complainant further alleged that the respondents’ standard of indigence for waiving copying fees for indigent inmates is “unreasonable, unfair, unobjectionable [sic] and discriminatory.”

 

3.      It is found that the complainant made a written request on February 27, 2009 to the respondents for numerous records.[1]  The complainant also requested a waiver of fees, asserting that he was unable to pay the copying fees in the amount of $150.00 because he was indigent.

 

4.      It is found that, by letter dated March 4, 2009, the respondents requested prepayment for the records requested and denied the complainant’s request for a waiver of fees, effectively denying the complainant’s request for records.

 

5.      It is found that the content, completeness and disclosure of the records described in paragraph 3, above, are not at issue in this matter.  Rather, at issue is the respondents’ indigence standard for waiving copying fees for indigent inmates and whether such standard is objective, fair and reasonable.[2]

 

6.      Section 1-200(5), G.S., defines “public records or files” as: 

 

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

 

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 . . . (3) receive a copy of such records in accordance with section 1-212.

 

8.      Section 1-212(a)(1), G.S., provides in relevant part:

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.  The fee for any copy provided in accordance with the Freedom of Information Act:

 

By an executive, administrative or legislative office of the state, a state agency or a department, institution, bureau, board, commission, authority or official of the state, including a committee of, or created by, such an office, agency, department, institution, bureau, board, commission, authority or official, and also including any judicial office, official or body or committee thereof but only in respect to its or their administrative functions, shall not exceed twenty-five cents per page….

 

9.      Additionally, §1-212(d)(1), G.S., provides:  “The public agency shall waive any fee provided for in this section when: (1) The person requesting the records is an indigent individual….” 

 

10.  It is found that the requested records are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

 

11.  The complainant contends that, at the time of the request described in paragraph 3, above, he was indigent, and that the respondent improperly denied him the requested records.  The complainant further contends that the respondents’ indigence standard for waiving copying fees for indigent inmates is objectionable, unfair and unreasonable.

 

12.  The respondents claim, however, that the complainant was not indigent under the Department of Correction’s indigence standard, as reflected in its Administrative Directive 3.10.  The respondents further maintain that they have established an objective, fair and reasonable standard for waiving copying fees for indigent inmates. 

 

13.  At the hearing, the respondents testified that in evaluating whether the complainant was indigent at the time of the records request, they looked at the Department of Correction’s Administrative Directives 3.10 and 6.10, the complainant’s inmate trust account and the Court’s decision in Food Services Division Department of Correction, et. al. v. Freedom of Information Commission, Superior Court, J.D. of New Britain, Docket No. HHB CV-07-4014939 (April 29, 2008, Schuman, J.).

 

14.  Administrative Directive 3.10 (Fees, Reimbursements and Donations), in effect when the complainant made his February 27^th request, provides, in relevant part:

 

An inmate shall be charged twenty-five cents for each page copied.  The fee shall be waived if an inmate is indigent.  For copies of records pursuant to the [FOI] Act, an inmate shall be considered indigent if the monetary balance in his or her inmate trust account, or any other known account, has not equaled or exceeded five dollars ($5.00) at any time (1) during the ninety (90) days preceding the receipt by the Department of the request for records and (2) during the days preceding the date on which the request for records is fulfilled (up to a maximum of ninety (90) days after the date of the request).

 

15.  Administrative Directive 6.10 (Inmate Property) provides, in relevant part, that “[a]n inmate shall be considered indigent when he or she has less than five dollars ($5.00) on account at admission or when the monetary balance in his or her inmate trust account, or in any other known account, has not equaled or exceeded five dollars ($5.00) at any time during the preceding ninety (90) days.”

 

16.  It is found that at the time of the records request described in paragraph 3, above, the complainant had a balance of four dollars and nineteen cents ($4.19) in his inmate trust account.

 

17.  It is found that at the time the respondents requested prepayment for the records and denied the complainant’s request for a fee waiver, as described in paragraph 4, above, the complainant had a balance of fifty-six cents ($0.56) in his inmate trust account.

 

18.  It is also found that during the 90 days preceding the receipt of the records request by the respondents, the complainant had a balance in his inmate trust account that exceeded five dollars ($5.00).  The complainant had as much as $200.19 in his trust account during such 90 day period.

    

19.  Since 1992, the Commission has taken the position that it is within the discretion of the custodial public agency to set its own standard of indigence, as long as the standard is “objective, fair and reasonable, and applied in a nondiscriminatory manner.”  May v. Freedom of Information Commission, Superior Court, J.D. of New Britain, Docket No. HHB CV 06 4011456 (April 30, 2007, Schuman, J.). 

 

20.  In Food Services Division Department of Correction, et. al. v. Freedom of Information Commission, supra, the Court stated, in part, that “the department [respondent DOC] can devise a definition of indigence for purposes of copying fees that looks backward over a period of time, and possibly even looks forward, to screen out cases in which an inmate might manufacture temporary indigence in order to obtain copies of department records at no charge.”  Significantly, the Court recognized that even “[s]uch a definition would not…screen out truly indigent inmates who are entitled by law to copies of records with no financial consequences.”

 

21.  It is found that the respondents’ denial of the complainant’s request for a fee waiver must be judged from the facts and circumstances that existed on the date of the respondents’ denial of the fee waiver.  See Docket # FIC 2004-366; Kiewhon Canady v. Commissioner, State of Connecticut, Department of Correction and Docket # FIC 2004-370; Kiewhon Canady v. Commissioner, State of Connecticut, Department of Correction. 

 

22.  It is found that the portion of the respondents’ indigence standard requiring that an inmate have less than five dollars ($5.00) in his inmate account at all times during the 90 days preceding the receipt of a records request is objective, fair and reasonable.  It is found that, under such standard, the complainant was not indigent at the time of his request.

 

23.  It is concluded that the respondents did not violate §1-212(d)(1), G.S., by refusing to waive copying fees for the complainant at the time of his request in this matter.

 

24.  The Commission is somewhat concerned that the respondents have built into their indigence standard a 90 day time period in which to respond to FOI requests.  However, promptness is necessarily determined on a case-by-case basis.  Since the respondents acted promptly in this case, the Commission will not address that portion of the standard at this time.

 

 

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

           

1.       The complaint is hereby dismissed.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 24, 2010.

 

 

____________________________

S. Wilson

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:

 

Bryant Rollins #14096

Corrigan-Radgowski C I

982 Norwich-New London Turnpike

Uncasville, CT 06382

 

Administrator, State of Connecticut,

Department of Correction,

Freedom of Information Office; and

State of Connecticut,

Department of Correction

C/o Steven R. Strom, Esq. and

Terrence M. O’Neill, Esq.

Assistant Attorneys General

110 Sherman Street

Hartford, CT 06105

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-137FD/sw/3/1/2010