FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Garry Klinger,  
  Complainant  
  against   Docket #FIC 2004-367

David Strange, Warden,

State of Connecticut,

Department of Correction,

Osborn Correctional Institution,

 
  Respondent May 25, 2005
       

           

The above-captioned matter was heard as a contested case on April 25, 2005, 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 August 11, 2004, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with his request for records, and requesting that a civil penalty of $1,000.00 be imposed against the respondent.     

 

            3.  It is found that the complainant made a July 29, 2004 written request to “Cherylee Wright or her successor, Records Supervisor” at Osborn Correctional Institution (“Osborn”) for certain records concerning him, including a 1983 mittimus, a 1983 pre-sentence investigation, a 2003 mittimus, and all classification records concerning him; and also for “DOC Administrative Directive 9.2.”

 

4.  It is found that the Department of Correction’s FOI Administrator forwarded the complainant’s request to Corrections Officer Michael Phillips at Osborn on September 2, 2004.    

 

5.  It is found that the respondent acknowledged the complainant’s July 29, 2004 request on September 9, 2004.

 

6.  It is found that the respondent, through Officer Phillips, provided some of the documents to the complainant on December 28, 2004, and the remainder of the documents on February 7, 2005.  A total of thirty pages were provided to the complainant, including some documents representing responses to requests the complainant made after July 29, 2004.

 

7.  It is found that all of the records, with the exception of Administrative Directive 9.2, were contained in the complainant’s “master file” at Osborn.

 

8.  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.

 

9.  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. 

 

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

 

            11.  It is found that some small portion of the delay between the complainant’s July 29, 2004 request and the respondent’s September 9, 2004 acknowledgement of that request may have been caused by the replacement of Cherylee Wright by another records supervisor at Osborn.

            12.  It is also found that the respondent offered no explanation for the remainder of the delay between the complainant’s July 29, 2004 request and the respondent’s September 9, 2004 acknowledgement of that request.

 

13.  It is additionally found that the respondent offered no satisfactory explanation for the extended delay between the September 9, 2004 acknowledgement of the complainant’s request, and the first provision of records on December 28, 2004, and the final provision of records on February 7, 2005.

 

14.  It is concluded that the respondent violated 1-210(a), G.S., by failing to provide prompt access to public records.

 

15.  Section 1-206(b)(2), G.S. provides in relevant part:

 

In addition, upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars. 

 

16.  It is found that respondent failed to offer any reasonable grounds for the denial of prompt access.  While both Officer Phillips and FOI Administrator Ellis are undoubtedly busy, and while conditions in corrections institutions present unusual challenges, a six-month delay in providing 30 pages of documents largely contained in a single file is not, under the circumstances, reasonable compliance with the FOI Act.

 

17.  However, the Commission in its discretion declines to impose a civil penalty in this case, and trusts that the respondent will, through the efforts of its corrections officers and the supervision of FOI Administrator Ellis, significantly improve its efforts to promptly provide public records to incarcerated individuals. 

 

 

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 promptness requirements of 1-210(a), G.S.           

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 25, 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:

 

Garry Klinger

Osborn Correctional Institution

100 Bilton Road

PO Box 100

Somers, CT 06071

 

David Strange, Warden,

State of Connecticut,

Department of Correction,

Osborn Correctional Institution

c/o Lynn D. Wittenbrink, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-367FD/paj/5/26/2005