FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Kiewhon Canady,  
  Complainant  
  against   Docket #FIC 2004-366

Commissioner,

State of Connecticut,

Department of Correction,

 
  Respondent July 13, 2005
       

           

The above-captioned matter was heard as a contested case on April 4, 2005, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.   The complaint was consolidated for hearing with Docket #FIC 2004-370, Kiewhon Canady v. Commissioner, State of Connecticut, Department of Correction.  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 denying his request for a waiver of copying fees by reason of the complainant’s alleged indigence. 

 

            3.  It is found that the complainant made a written request for records to the respondent sometime prior to May 17, 2004.   The content and disclosability of those records is not at issue.

 

4.  It is found that the respondent acknowledged receipt of the complainant’s request on May 17, 2004.

 

5.  It is found that the respondent by letter dated June 4, 2004 informed the complainant that “no incarcerated inmate will be considered indigent for the purpose of calculating the fees associated with the production of documents requested under the Freedom of information Act.”

 

6.  It is found that the respondent by letter dated July 14, 2004 informed the complainant that she had the documents he had requested, and would forward them to him once the respondent received a check for $15.25 (61 pages at 25 cents per page).

 

7.  It is found that the complainant, by memorandum dated July 26, 2004, asked the respondent to grant him a waiver of the copying fee because he was an incarcerated indigent “in regards to A[dministrative] D[irective] 6.10.”

 

8.  It is found that the respondent denied the complainant’s request for a waiver of fees sometime between July 26, 2004 and August 10, 2004.

 

9.  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.

 

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

 

… The fee for any copy provided in accordance with the Freedom of Information Act:

 

(1)  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 ….

 

11.  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 ….”

 

12.  The parties stipulated that the requested records are public records within the meaning of 1-200(5) and 1-210(a), G.S.

 

            13.  It is found that the complainant had a balance of five cents or less in his Department of Correction trust account from October 21, 2003 through at least July 26, 2004, the date on which he requested the fee waiver. 

 

14.  It is found that the complainant does not regularly receive funds into his account, although he did receive $130 on October 26, 2004, and $100 on December 17, 2004.

 

15.  The respondent maintains that the complainant could have paid the copying fees after he received funds into his account.

 

16.  It is found, however, that the complainant did not, at the time of his request for records or for a waiver of fees, anticipate later receiving funds in October and December, 2004, and that the respondent did not deny the complainant’s fee waiver because the respondent expected the complainant to receive funds, but because it is the respondent’s policy to deny all requests for fee waivers from incarcerated individuals.  It is concluded, therefore, that the respondent’s 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 respondent’s denial of the fee waiver.

 

17.  It is found that the respondent’s general standard for indigence, as reflected in its own Administrative Directives, is met if an inmate’s account contains less than $5.00 for more than a nine-day period.  Under this standard, the complainant was indigent at all times relevant to this complaint.

 

18.  However, the respondent maintains that no inmate is indigent for purposes of the FOI Act, because the respondent supplies the inmate with food, housing, and clothing, and that therefore inmates cannot be considered indigent if their basic needs are met by the state.    The respondent further argues that the federal poverty level is $13,000 per year, and that the respondent expends approximately $27,000 per inmate for inmate care.  Therefore, the respondent maintains, no inmate can be considered indigent for purposes of a waiver of fees for copies of public records.

 

19.  Although the respondent concededly expends substantial funds on each inmate, that fact does not permit the respondent to establish one standard of indigence for all purposes other than the FOI Act, and at the same time declare that no inmate is indigent for purposes of FOI Act fee waivers, even when inmates meet the respondent’s own general standard for indigence.  Setting a general standard for inmate indigence, and then refusing to apply that standard to requests for public records,  arbitrarily discriminates against inmates who seek to enforce their rights pursuant to the FOI Act.

 

20.  Moreover, the respondent acknowledges that the State of Connecticut regards the cost of incarceration as a loan, albeit one that is infrequently recovered.   If the state determines that a previously incarcerated individual subsequently comes into money, it will attempt, through the Department of Administrative Services, to recover the cost of incarceration. 

 

21.  Finally, it is found that the respondent’s policy of declaring that no inmate is indigent for purposes of the FOI Act, even when inmates have no funds in their trust accounts, effectively negates rights of those inmates to any copies of public records during the period of their indigence. 

 

22.  The respondent also maintains that inmates could intentionally deplete their accounts before making requests for public records, in order to fraudulently obtain a waiver of fees.

 

23.  It is found, however, that the complainant did not intentionally deplete his account before making his request, as his account had a balance of less than five cents for at least six months before he made his request for records.

 

24.  At the hearing, a witness for the respondent testified that the respondent nonetheless had authority to establish a policy of denying indigence status to incarcerated individuals.  The hearing officer ordered that the respondent provide any records to substantiate this testimony, and further ordered such records to be made after-filed exhibits, pursuant to 1-21j-38, Regulations of Connecticut State Agencies.  Section 1-21j-38 provides:

 

After the close of evidence at the hearing, and before the submission of any proposed final decision by the presiding officer to the commission, the presiding officer may permit any party or intervenor to file added exhibits or written testimony, subject to the provision of such comment, reply and contest as due process shall require.

 

25.  After the close of the hearing, the respondent filed five exhibits, which are made full exhibits and designed as Exhibits K, L, M, N and O.

 

26.  It is found, based on the after-filed exhibits, that the respondent clearly sought, and equally clearly did not obtain, a recommendation from the Secretary of the State to the Government Administration and Elections Committee (“GAE”) of the General Assembly that no incarcerated person be eligible for a waiver of copying fees based on indigence.  Indeed, the Secretary of the State specifically stated in her February 9, 2000 recommendation to GAE: “We do not believe that there is any basis for creating a special schedule of fees for copies of public records that applies specifically to inmates.”

 

27.  It is concluded that the respondent violated 1-212(d)(1), G.S., by failing to waive the fees for copying records for the complainant.

 

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

 

Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void.   

 

29.  It is found that the respondent’s policy of using a double standard of indigence for FOI requests is an agency rule that curtails the rights granted by 1-210(a), G.S.  Moreover, it is found that the respondent’s policy of using an FOI standard of indigence different from its general standard—an FOI standard that explicitly denies indigence to any incarcerated individual—is directly contrary to the recommendation of the Secretary of the State, and seriously offends the public policy of the State of Connecticut as expressed in its FOI Act.  Moreover, the respondent’s use of a double standard seriously offends the spirit of the January 2004 memorandum of understanding between the FOI Commission and the Department of Correction.

 

30.  It is concluded that the respondent’s policy of using a standard of indigence different from its general standard is void, pursuant to 1-210(a), G.S.

 

 

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

 

            1.  The respondent shall forthwith provide the requested 61 pages to the complainant at no charge.

 

2.  Henceforth the respondent shall apply the same standard of indigence to all FOI Act requests by inmates that it applies to other inmate matters generally.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of July 13, 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:

 

Kiewhon Canady, #269238

Northern Correctional Institution

287 Bilton Road

PO Box 665

Somers, CT 06071

 

Commissioner, State of Connecticut,

Department of Correction

c/o Henri Alexandre, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-366FD/paj/7/14/2005