FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Scott Palmenta,

 
  Complainant  
  against   Docket #FIC 2006-207

Commissioner, State of Connecticut,

Department of Public Safety,

 
  Respondent March 28, 2007
       

            

The above-captioned matter was heard as a contested case on January 4, 2007, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, the above-captioned matter was consolidated with Docket #FIC 2006-239, Scott Palmenta v. Commissioner, State of Connecticut, Department of Public Safety.  The complainant, who is incarcerated, appeared via teleconference, pursuant to the January 2004 memorandum of understanding between the Commission and the Department of CorrectionDocket 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 dated April 18, 2006, and filed with the Commission on April 21, 2006, 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.  At the hearing in this matter, the complainant requested the imposition of a civil penalty against the respondent.

 

3.  It is found that, by letter dated May 2, 2006, and filed with the Commission on May 8, 2006, the complainant again appealed to the Commission, alleging that the respondent subsequently failed to provide him with the same records, more specifically described, that are at issue in this complaint, with a waiver of fees because of his indigency.  FOI Commission Docket #FIC 2006-239, Scott Palmenta v. Commissioner, State of Connecticut, Department of Public Safety.

 

4.  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 . . . receive a copy of such records in accordance with section 1-212.

 

5.  Section 1-212(a), G.S., provides in relevant part that “any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

6.  Section 1-212(a)(1), G.S., also provides in relevant part that the fee for any copy provided in accordance with the FOI Act by a state agency “. . . shall not exceed twenty-five cents per page . . .” and 1-212(d)(1), G.S., provides in relevant part that

“. . . [t]he public agency shall waive any fee provided for in this section when . . . [t]he person requesting the records is an indigent individual. . . .”

 

7.  It is found that the respondent maintains the requested records and that such records are public records within the meaning of 1-210(a), G.S.

 

8.  It is found that by correspondence dated March 27, 2006, the complainant made a written request to the respondent for records relating to the complainant’s arrest (hereinafter “requested records”).  The request referenced various case numbers.  It is found that the requested records include statements of witnesses, police reports and notes and arrest warrants.  Attached thereto was a copy of the complainant’s Department of Corrections Sales Receipt relating to a purchase of snacks, indicating an “available balance” of  $.03.  The content and disclosability of the requested records are not at issue. 

 

9.  It is found that, by letter dated April 6, 2006, the respondent replied to the complainant, stating in relevant part:

 

“Pursuant to Connecticut General Statutes section 29-10b, the fee for a search/copy of each investigative report is $8.00.  Upon receipt of your check in the amount of $32.00 (4) reports @$8.00 per report) made payable to the Department of Public Safety, we will commence the search.  If you are indigent, please submit notarized proof of your indigency (i.e. notarized copy of your most recent DOC account statement for the past 6 months.)”

 

10.   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.

 

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

 

12.  It is also found that by letter dated April 18, 2006, the complainant informed the respondent that he is indigent and did not own any property.  It is also found that the complainant requested a waiver of all fees for documents he requested in the letter described in paragraph 8, above.  It is further found that the complainant also renewed his request for the records and added that he would also like copies of any related photographs; the letter was sworn before a notary public.

 

13.  It is further found that, by letter dated April 24, 2006, the respondent replied to the complainant stating in relevant part:

 

“…please be advised that in order to be considered indigent, you are required, as indicated in our previous correspondence, to provide notarized proof of your indigency (i.e. notarized copy of your most recent DOC account statement for the past 6 months during which time you have not had sufficient funds to cover (sic) cost of your request).  Upon receipt of this information or a check in the amount of $32.00 made payable to the Department of Public Safety, your request will be processed.”

 

            14.  It is concluded that the specific fee provisions set forth in 29-10b, G.S., supersede the more general fee provisions set forth in 1-212(a), G.S.

 

            15.  It is also concluded, however, that because 29-10b, G.S., is silent as to fee waivers, the fee waiver provision of 1-212(d)(1), G.S., controls in this case.

 

16.  It is found that, by letter dated June 29, 2006, the respondent advised the complainant to provide, in addition to an affidavit of indigency, any documents relevant to reviewing the complainant’s indigency status.  At the hearing in this matter, the respondent advised that this additional requirement was the result of a change in the respondent’s indigency policy standard that occurred on or around the end of May, 2006.

 

17.  It is also found that, by letter dated July 10, 2006, the complainant notified the respondent that the Gates Correctional Institution (hereinafter “Gates”), where the complainant was incarcerated at the time, did not have the computer capability of retrieving the complainant’s DOC account statement for the prior six (6) months.  Accordingly, he enclosed a notarized and completed DOC FOI application form for the requested records, dated July 10, 2006, a notarized affidavit of indigency dated July 10, 2006, and a notarized sales receipt from Gates, dated July 6, 2006, reflecting the complainant’s then inmate account balance.

 

18.  It is found that by letter dated December 5, 2006, the complainant renewed his request for the requested records and attached a notarized DOC account statement for the previous six (6) months.

 

19.  It is also found that, by letter dated December 22, 2006, the respondent notified the complainant that a determination of the complainant’s indigency status could not be made since the complainant’s affidavit of indigency was submitted five months prior to his December 5, 2006 request.  The respondent therefore advised the complainant to resubmit a current affidavit of indigency more contemporaneous with the notarized DOC account statement described in paragraph 9, above.

 

20.  At the hearing in this matter, the complainant maintained that the Gates Correctional Institution, where he resided during the period of April through August 2006, did not have the capability of retrieving his DOC account statement for any prior six (6) month period.  However, it is found that the complainant could have obtained such a statement by directly contacting the “inmate accounts” section of the DOC, and he was advised to do so.

 

21.  It is found that the respondent’s policy for establishing one's eligibility for a fee waiver on the ground of indigency is objective, fair and reasonable, and that there is no evidence in this case that it was applied in a discriminatory manner.

 

22.  It is further found that in this case, the complainant did not provide documentation necessary for the respondent to determine whether the complainant met the respondent’s indigency policy for a fee waiver under 1-212(d)(1), G.S., although he could have done so.

 

23.  Accordingly, it is concluded that the respondent did not violate the provisions of 1-210(a) and 1-212, G.S., as alleged, by failing to provide the complainant with a copy of the requested records without prepayment of the statutory fee, as set forth in 29-10b, G.S.

 

24.  Based on the facts and circumstances of this case, the Commission declines to consider the imposition of a civil penalty.

 

 

            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.

 

            2.  Nothing herein shall be construed to preclude the complainant from again requesting the records at issue and a fee waiver based on indigency by contemporaneously providing the documentation required under the respondent’s current indigency policy standards.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 28, 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:

 

Scott Palmenta

382 Kent Road

New Milford, CT 06776

 

Commissioner, State of Connecticut,

Department of Public Safety

c/o Henri Alexandre, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2006-207FD/paj/4/2/2007