FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Thomas J. May,  
  Complainant  
  against   Docket #FIC 2006-275

Theresa Lantz, Commissioner,

State of Connecticut,

Department of Correction,

 
  Respondent May 23, 2007
       

 

The above-captioned matter was heard as a contested case on January 9, 2007, at which time the complainant and the respondent appeared 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, Superior Court, J.D. of Hartford at Hartford, Corrected Order dated January 27, 2004 (Sheldon, J.).  The hearing officer issued a Report of Hearing Officer on April 19, 2007, but withdrew such report prior to any Commission deliberations thereon. 

 

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.  The Commission takes administrative notice of the record and final decision in Docket #FIC 2005-519; Thomas J. May v. Theresa Lantz, Commissioner, State of Connecticut, Department of Correction (June 28, 2006) (hereinafter “Docket #FIC 2005-519”).  Docket #FIC 2005-519 has been remanded to the Commission by the Superior Court, for further proceedings.  Thomas J. May v. Freedom of Information Commission, Superior Court, Docket No. CV 06 4011456, Judicial District of New Britain, Memorandum of Decision dated April 30, 2007 (Schuman, J.). 

 

3.      It is found that, by letter dated May 15, 2006, the complainant requested that the

respondent provide him with copies of the following, which shall hereinafter be referenced as “the requested records:”

 

1.      financial records of the Department of Correction (“DOC”) Commissary Division, including expenses, purchases, payroll, as well as job descriptions for the employees of such division, and paperwork that keeps track of theft and waste, for the previous five years;

 

2.      all quick/chill recipes, the nutritional values and calorie count of each meal on the master menu, as well as the itemized cost of each meal and serving size;

 

3.      statistics on disciplinary tickets for the previous five years;

 

4.      yearly reports for the previous five years on the grievance system;

 

5.      lawsuits filed by the Town of Somers in the previous five years against the state or DOC pertaining to prison operations;

 

6.      reports from the previous five years concerning toilets and shower drains backing up at Osborn Correctional;

 

7.      plumbing and maintenance reports concerning toilets and showers backing up at Osborn for the previous five years;

 

8.      complaints and grievances filed over the previous five years concerning plumbing and sanitation problems at Osborn Correctional;

 

9.      statistics on employee misconduct for the previous five years, including the charge and disciplinary action, excluding employee name. 

 

The complainant requested that all copying fees be waived, based on his contention that he is indigent. 

 

4.  It is found that, by letter dated May 19, 2006, the respondent acknowledged receipt of the request described in paragraph 3, above, and informed the complainant that various departments within the Department of Correction (DOC) were compiling all responsive records which the DOC maintains, but that, based on the complainant’s sworn testimony at the hearing in Docket #FIC2005-519, that he received one hundred and three dollars ($103.00) disability compensation from the Department of Veterans Affairs on a monthly basis, the respondent did not consider the complainant indigent. 

 

5.  By letter dated May 25, 2006, and filed on May 30, 2006, the complainant appealed to the Commission, alleging that he is indigent under DOC Directive 6.1, that he followed DOC protocol for fee waivers, and that the respondent violated the Freedom of Information (FOI) Act by refusing to waive copying fees for the requested records.  The complainant requested the imposition of a civil penalty against the respondent. 

 

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

 

7.  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…

 

(c) A public agency may require the prepayment of any fee required or permitted under the Freedom of Information Act if such fee is estimated to be ten dollars or more.  The sales tax provided in chapter 219 shall not be imposed upon any transaction for which a fee is required or permissible under this section or section 1-227.

 

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

 

(1) The person requesting the records is an indigent individual….

 

            8.  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.

 

9.  At the hearing in this matter, the complainant acknowledged that the respondent is willing to provide him with the requested records upon payment of the copying fees, and the parties agreed that the disclosability of the requested records is not at issue in this matter. 

 

10.  At the hearing in this matter, the complainant conceded that he receives an outside monthly income of approximately one hundred twelve dollars ($112.00) from the Department of Veteran’s Affairs, but that he chooses not to deposit such funds into his inmate account at DOC, and maintains such funds in an outside bank account. 

 

11.  It is found that the DOC Directive 6.1, which the complainant cites in his complaint, was not in effect on May 15, 2006, the date of the complainant’s request.  Rather, the DOC Directive 3.10.8.B, was in effect at such time. 

 

12.  DOC Directive 3.10, effective December 15, 2005, provides:

 

An inmate shall be charged twenty-five cents for each page copied.  The funds shall be deducted from the inmate’s trust account prior to providing the inmate with the documents.  In the event that an inmate does not have sufficient funds in his/her trust account to pay for the fees associated with the production of documents requested, an obligation to pay shall be established on the inmate’s trust fund.  Subsequent funds shall be fully credited against the obligation until satisfied.

 

13.  It is found that the respondent did not apply DOC Directive 3.10 with respect to the complainant’s request, as described in paragraph 3, above.  Rather, the respondent merely informed the complainant that he was not indigent because of the outside income described in paragraph 10, above.

 

14.  Since 1992, the Commission has taken the position that the term “indigent individual” in 1-212(d)(1), G.S., allows each public agency “to set its own standard of indigence, provided the standard is objective, fair and reasonable, and applied in a nondiscriminatory manner.” Thomas May v. FOIC, above.

 

15.  However, based on the failure of the respondent to apply DOC Administrative Directive 3.10 to the complainant’s request, the issue of whether it was applied in a nondiscriminatory manner is not before the Commission.

 

16.  At the hearing in this matter, the complainant contended that the respondent has not promulgated appropriate indigence standards, that other state agencies have not promulgated appropriate indigence standards, that 1-212(d), G.S., is unclear and ambiguous, and that the respondent’s policy of encumbering the accounts of indigent individuals is in violation of the FOI Act.  However, none of these allegations was fairly raised in the complaint.

 

17.  Based on the facts and circumstances of this case, the Commission lacks jurisdiction in this case to consider either whether Administrative Directive 3.10 was applied in a nondiscriminatory manner, or whether the DOC has established a standard of indigence that is objective, fair and reasonable.

 

18.  It is concluded, however, that the respondent violated 1-210(d)(1), G.S., by simply informing the complainant that he was not indigent because of outside income, rather than applying any standard of indigence.

 

19.  As to the question of an appropriate remedy, 1-206(b)(2), G.S., provides in relevant part:

 

In any appeal to the Freedom of Information Commission under subdivision (1) of this subsection or subsection (c) of this section, the commission may confirm the action of the agency or order the agency to provide relief that the commission, in its discretion, believes appropriate to rectify the denial of any right conferred by the Freedom of Information Act. 

 

            20.  It is concluded that 1-212(d)(1), G.S., confers the right to have an application for a fee waiver evaluated, without discrimination, under an objective, fair and reasonable standard.  The Commission believes the relief appropriate to rectify the denial of this right is for the respondent to waive the copying fees associated with the complainant’s request in this case.

 

21.  The Commission declines to consider the imposition of a civil penalty in this matter.

 

 

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

 

            1.  Forthwith, the respondent shall provide the complainant with copies of the requested records described in paragraph 3, above, free of charge. 

 

            2.  The respondent shall not encumber the trust account of the complainant as a result of the provision of the copies described in paragraph 1 of the order. 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 23, 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:

 

Thomas J. May, #96118

Maine State Prison

807 Cushing Road

Warren, ME 04864-4600

 

Theresa Lantz, Commissioner,

State of Connecticut,

Department of Correction

24 Wolcott Hill Road

Wethersfield, CT 06109

and

c/o Sandra Sharr, Esq.

Department of Correction

24 Wolcott Hill Road

Wethersfield, CT 06109

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2006-275FD/paj/5/24/2007