FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Richard R. Quint,  
  Complainants  
  against   Docket #FIC 2006-683

Food Services Division,

State of Connecticut,

Department of Correction; and

Joan Ellis, State of Connecticut,

Department of Correction,

Freedom of Information Administrator,

 
  Respondents  June 13, 2007
       

            

The above-captioned matter was heard as a contested case on May 4, 2007, 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 2006-684, Richard R. Quint v. Fiscal Services Division, State of Connecticut, Department of Correction; and Joan Ellis, State of Connecticut, Department of Correction, Freedom of Information Administrator.  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 of complaint filed December 27, 2006, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his November 22, 2006 request for records, and denying his request for a waiver of copying fees by reason of the complainant’s alleged indigence.  The complainant requested the imposition of civil penalties against the respondents.

 

            3.  It is found that the complainant made a written request on November 22, 2006 to the respondent Food Services Division for numerous records pertaining to food services invoices, inventories, menus, budgets and distributors.   The content, completeness and disclosure of those records is not at issue.  The complainant also requested a waiver of fees pursuant to 1-212(d)(1), G.S., asserting that he was unable to pay the copying fees because he was indigent.

 

4.  It is found that the Department of Correction (the “Department”)  acknowledged receipt of the complainant’s request on December 7, 2006.  The respondent Ellis coordinated the Department’s response to the request.

 

5.  It is found that the Department provided 549 pages of records responsive to the complainant’s request on or about January 12, 2007, and some time between January 12, 2007 and January 25, 2007, established an obligation of $137.25 against the complainant’s trust account, effectively denying the complainant’s request for a waiver of fees.[1]

 

6.  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.

 

7.  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:

 

    (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 ….

 

8.  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 ….”

 

9.  The parties stipulated that the requested records are public records within the meaning of 1-200(5) and 1-210(a), G.S., and that those records were provided to the complainant.

 

            10.  The complainant contends that the records were not provided promptly.

 

11.  The meaning of the word “promptly” is a particularly fact-based question that has been previously addressed by the FOI Commission.  In Advisory Opinion #51, In the Matter of a Request for Declaratory Ruling, Third Taxing District of the City of Norwalk, Applicant (Notice of Final Decision dated January 11, 1982) the Commission advised that the word “promptly” as used in 1-210(a), G.S., means quickly and without undue delay, taking into consideration all of the factors presented by a particular request.  The Commission also gave the following guidance:

 

The Commission believes that timely access to public records by persons seeking them is a fundamental right conferred by the Freedom of Information Act.  Providing such access is therefore as much a part of their mission as their other major functions.  Although each agency must determine its own set of priorities in dealing with its responsibilities within its limited resources, providing access to public records should be considered as one such priority.  Thus, it should take precedence over routine work that has no immediate or pressing deadline.

 

12.  The advisory opinion goes on to describe some of the factors that should be considered in weighing a request for records against other priorities:  the volume of records requested; the time and personnel required to comply with a request; the time by which the person requesting records needs them; the time constraints under which the agency must complete its other work; the importance of the records to the requester, if ascertainable; and the importance to the public of completing the other agency business without the loss of the personnel time involved in complying with the request.        

 

13.  It is found that a large volume of records were requested; that the records were collected from at least three different sources, requiring substantial time and personnel;  and that the records were provided approximately eight weeks after the request.

 

14.  It is concluded that the records were provided promptly within the meaning of 1-212(a), G.S.

 

15.  The complainant contends that he was indigent under the Department’s standard, and pursuant to the Commission’s decision in docket #FIC 2004-370, Kiewhon Canady v. Department of Correction.  That standard, as reflected in its Administrative Directive 6.10 paragraph 3.C, effective March 5, 2003, was previously met if an inmate’s account contained less than $5.00 for more than a ninety-day period. 

 

16.  It is found that the complainant had a balance of less than $5.00 in his Department of Correction trust account, or in any other account known to the respondents, from March 7, 2006 through January 12, 2007, the date on which he received the requested records.  Under the standard described in paragraph 15, above, the complainant was indigent at all times relevant to this complaint.

 

17.  The respondents contend, however, that the complainant was not indigent under the Department’s new standard of indigence, as reflected in its amended Administrative Directives 6.10 and 3.10.

 

18.  As a preliminary matter, the respondents essentially moved to dismiss so much of the complaint as concerns the issue of indigence, contending that the issue of the legality of the Department’s new standard of indigence has already been decided in docket #FIC 2006-174, Niblack v. Department of Correction

 

19.  In Niblack the Commission dismissed the complaint for lack of jurisdiction, on the grounds that, although the complainant was found not to be indigent under the Department’s new Administrative Directives, the Department chose not to establish a debt against the complainant’s account for the copies he received.  The Commission concluded that the complainant had not alleged a violation of the FOI Act, but rather was attempting to compel the Department to change its policy under the new Administrative Directives, absent any claim that he had been denied a waiver of fees or any other right under the FOI Act.

 

20.  It is concluded that Niblack did not address the legality of the Department’s standard of indigence, or the application of that standard to any inmate.

 

21.  The respondents’ motion to dismiss is therefore denied.

 

22.  With respect to the respondents’ claim that the complainant was not indigent under the Department’s new standard of indigence, it is found that the Department amended its rules concerning indigence in late 2005 and again in late 2006. 

 

23.  In late 2005, the Department promulgated Administrative Directive 3.10.  Paragraph 8 of that directive, effective December 15, 2005[2], establishing the Department’s rules concerning photocopying to provide as follows:

Photocopying Expense.  Fees for photocopying shall be received by the Department prior to documents being provided to the requestor.

 

A.     General Public.  The charge for duplicating material for the general public shall be twenty-five cents for each page copied.

B.     Inmates.  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.

 

24.  A year later, in late 2006, the Department promulgated Administrative Directive 6.10, effective December 14, 2006, amending the respondent’s definition of “indigent inmate” to create two standards, one for property and one for services, and establishing a more generous schedule at which the inmate’s account would be debited until the obligation for copying fees was satisfied:

 

In matters related to property an inmate shall be considered indigent when: (1) the inmate’s account balance has not exceed five dollars ($5.00) for the previous 90 days and (2) the inmate has less than five dollars ($5.00) in another known source.  In matters related to services, including but not limited to copying fees and filing fees, the service shall be provided to the inmate and the inmate’s account shall be encumbered for payment of the fees associated with the specific service provided.  Twenty percent (20%) of all subsequent funds received by the inmate shall be credited against the obligation until the obligation is satisfied.

 

25.  Also in late 2006, the Department amended Administrative Directive 3.10, effective December 14, 2006, to correspondingly provide, with respect to the schedule of reimbursement for photocopies:

 

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, the documents shall be provided to the inmate and an obligation to pay shall be established on the inmate’s trust fund.  Twenty percent (20%) of all subsequent funds received by the inmate shall be credited against the obligation until the obligation is satisfied.

 

26.  It is clear that the Department’s December 2005 Administrative Directive 3.10, requiring the accounts of otherwise indigent inmates to be encumbered for photocopies of records, was in effect when the complainant made his November 22, 2006 request.  It is not clear that the versions of Administrative Directives 3.10 and 6.10 that were effective December 14, 2006, differentiating between indigence with respect to property and services, and establishing a schedule of repayment, should also have been applied to the complainant’s request in this matter, since the request was made on November 22, 2006, the records were provided on January 12, 2007, and the obligation was established on the complainant’s trust account sometime between January 12 and January 25, 2007.

 

27.  However, it is found, by the stipulation of the parties, that the respondents in fact applied the provisions of the most recent version of Administrative Directive 3.10, imposing a debt for copies where an inmate is unable to pay.   Moreover, it is the respondents’ position that its most recent policy should apply in this case, including its distinction between indigence with respect to property and indigence with respect to services. 

 

28.  It is concluded that the Commission should address the indigence standard actually applied by the respondents and put at issue in this case, rather than second-guess the respondents as to which portions of the standard were technically in effect and should have been applied at the time.

 

29.  The Department maintains that its new standard for indigence with respect to waiver of FOI Act copying fees is in compliance with the Commission’s decision in Canady v. Department of Correction, above, because the new indigence standard is the same as the standard with respect to the provision of other services to inmates, such as medical visits, dental visits, eyeglass prescriptions, educational and vocational programs, and extended family visits, pursuant to Administrative Directive 3.12, effective December 15, 2005.

 

30.  Administrative Directive 3.12  provides in relevant part that, as a matter of policy, the Department of Correction “shall hold sentenced inmates accountable for costs associated with their incarceration,” but that “no inmate shall be denied essential services based on an inability to pay.” Medical services, dental services, and eyeglass prescriptions are charged at a rate of $3.00 per visit or prescription, although inmates are not charged for emergency care, appointments initiated by Department personnel, follow-up treatments for chronic diseases, or treatments for mental health reasons.  

 

31.  Administrative Directive 3.12 also provides in relevant part that sentenced inmates shall be charged for, and responsible to pay, $3.00 fees for elective educational programs and vocational-educational programs, a $10.00 fee for an extended family visit, and the cost of laboratory tests taken to detect illegal use of drugs when the test is positive.

 

32.  As Administrative Directive 3.10 does with respect to copying fees, Administrative Directive 3.12(5)(E) similarly provides with respect to the services described in paragraphs 30 and 31, above:

 

In the event that an inmate does not have sufficient funds on account to pay for a … fee … at the time of service, an obligation to pay shall be established on the inmate’s trust account.  Subsequent funds shall be credited against the obligation until satisfied.

 

33.  As additional authority for its requirement that inmates be required to repay FOI Act copying fees, the Department cites the Prison Litigation Reform Act of 1995 (the “PLRA”), which amended and supplemented the U.S. Code in a number of ways to restrict and discourage litigation by prisoners.  Specifically, under the PLRA prisoners proceeding in forma pauperis are now required to pay filing fees in installments according to a statutory formula.  28 U.S.C. 1915(b)(1-2).

 

34.  Based upon the provisions of the Administrative Directives cited above, and the PLRA, the Department maintains that it has established an objective, fair and reasonable standard for waiving copying fees for indigent individuals, and that the Commission is bound to defer to that standard, based upon the Commission’s past decisions.

 

35.  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, Docket No. HHB CV 06-4011456, Superior Court, J.D. of New Britain, Memorandum of Decision dated May 2, 2007 (Schuman, J.); see also docket #FIC 91-356, Kulick v. West Hartford Town Manager.

 

36.  The American Heritage Dictionary (2nd College Ed. 1982) defines “standard” in relevant part to mean: “2.a. An acknowledged measure of comparison for quantitative or qualitative value; criterion ….”  Webster’s Third International Dictionary Unabridged (1993) defines “standard” in relevant part to mean: “3.a: something that is established by authority, custom, or general consent as a model or example to be followed : criterion, test ….”

 

37.  In every case in which the Commission has approved a standard of indigence, agencies have compared, or sought to compare, economic information about the individual against objective criteria, and no standard has precluded the possibility of finding an individual to be indigent.  See, e.g., docket #FIC 2005-219, Rossi v. West Haven (test for determining indigence based on the definition set forth in Black’s Law Dictionary and 17a-495, G.S., is on its face objective, fair and reasonable); docket #2005-134, Fuller v. Department of Correction (standard is met if an inmate’s account contains less than $5.00 and no more than $5.00 for a period of ninety days); docket #2002-297, Connecticut Civil Liberties Union Foundation v. Connecticut Housing Finance Authority (not unfair or unreasonable to require documentation of income statement of client, and proof that such client has no means to pay Freedom of Information Act fees); docket #FIC 1999-094, Levine v. Norwich (approves application of Black’s Law Dictionary definition of indigence and the poverty level criteria utilized by the NDSS); docket #FIC 1996-431, Legal Aid Society of Hartford County v. West Hartford Housing Authority (inappropriate for the Commission to overturn the respondent’s determination to deny a fee waiver to individuals who never submitted income information); docket #FIC 1993-354, Libby v. Middletown (approving criteria based on the definition of indigent in Black's Law Dictionary, information received from the Welfare and Tax Assessor's Departments and the agency’s knowledge regarding the complainant's lifestyle); docket #FIC 1991-356, Kulick v. West Hartford (reliance upon the federal government's established poverty levels for guidance in establishing a working definition of indigence not shown to be subjective, unfair or unreasonable); docket #FIC 1987-264, Cooper v. East Hartford Police Department (evidence that requestor has received donations of approximately $2,000 from former co-workers to assist in the payment of legal fees connected with the suspension of his employment, that requestor also owns a car, maintains an apartment and has approximately $8,000 in a savings account, sufficient for agency to establish lack of indigence);  compare: docket #FIC 1995-105, Dietzko v. Plainville (failure by agency to show that it used objective criteria, guidelines or standards to determine indigence, or that such an indigence standard was in fact applied to the complainant); docket #FIC 1995-426, Presutti v. Department of Housing (no reasonable standard or application of standard when the agency relies on tax returns indicating only that requestor was married but filing separately as opposed to filing a joint income tax return, that requestor lived in a home and that he had a certain dress and appearance that did not comport with the agency’s conception of indigence status, and that the requestor was generally known to have worked as a real estate developer who had undertaken projects that required financial backing); docket #FIC 2005-304, Nappi v. New Haven Police Department (concludes fee must be waived when agency failed to establish that it had  a documented criteria for determining indigence and that the complainant did not meet that criteria).

 

38.  It is concluded that any reasonable and fair standard for establishing indigence must contain, at a minimum, objective criteria for determining whether an individual is in fact indigent.  The application of such a standard must permit economic facts about the individual requesting indigent status to be measured against those criteria, and the application of such a standard must not preclude any possibility of finding the individual to be indigent.

 

39.  Unlike the cases described in paragraph 37, above, it is found that the respondent’s amended Administrative Directives 6.10 and 3.10 cannot establish anyone’s eligibility for a waiver of fees under 1-212(d)(1), G.S.  Indeed, those Administrative Directives contain no standards or criteria for establishing indigence.    While the respondent’s standard for indigence with respect to property does so, its so-called “standard” for indigence with respect to services (including FOI Act copying fees) fails to contain any criteria, objective or otherwise.  Rather, it rests on the irrebuttable presumption, albeit unstated, that no inmate will be considered indigent under 1-212(d)(1), G.S.

 

40.  The unreasonableness of the respondent’s so-called “standard” for the waiver of fees under 1-212(d)(1), G.S., is demonstrated by the fact that it results in no fees ever being waived under Administrative Directives 6.10 and 3.10, both of which, rather than establishing standards under which fees may be waived, instead establish indebtedness for fees that cannot be paid at the time the copies are provided to the inmate.  A directive imposing a future obligation to pay is not a “standard” for establishing indigence. 

 

41.  The Department contends, however, that it does waive fees, because the word “waive” has multiple definitions, including “to defer or postpone,” citing multiple sources.  The Department therefore argues that, because it defers or postpones collection of copying fees until the inmate receives funds into his trust count, and then collects only 20% of each deposit of funds until the debt is satisfied, it is therefore “waiving” payment for copies.

 

42.  Certainly the word “waive” has multiple definitions, some of which apply to a waiver of fees, and some of which do not.  For example, Webster’s Third New International Dictionary Unabridged (1993) (“Webster’s”) contains the following definition: “8 : to dismiss (as a person or thought) with or as if with a wave of the hand <evils … are not magically waived out of existence –John Dewey> ….”

 

43.  However, a close examination of Webster’s entry for “waive” illustrates the actual context in which the word means “to defer or postpone”:

 

7: to put off from immediate consideration; defer, postpone <waiving this theory for the present, let us resume the inquiry –John Marshall> 

 

44.  In the context of waiving rights, claims, rules, and taxes (as opposed to putting off consideration of an argument), Webster’s entry contains the following:

 

6a: to relinquish voluntarily (as a legal right < waive a jury trial> < waive fulfillment of certain onerous provisions of a contract> b: to refrain from pressing or enforcing (as a claim or rule) : to dispense with : forego < waive a portion of the tax due> < waives his opposition to the bill> < waive the customary formalities> <waived the club rules to admit him>.

 

45.  In Webster’s, the context closest to that of waiving a copying fee is that of waiving a portion of a tax due.  In that context, Webster’s defines “waive” to mean “to dispense with : forego.”

 

46.  In addition, the Commission is unaware of any statute, regulation or case law that treats the word “waive,” in the context of fees, to mean anything other than “to dispense with” or “forego.”   The Department has not brought to the Commission’s attention any statute, regulation or case law that treats the word “waive,” in the context of fees, to mean “postponed until the individual receives sufficient funds to pay the obligation.”

 

47.  Further, the Commission takes administrative notice of the fact that, within the Commission's specialized knowledge, the generally recognized technical definition of “waive any fee” within the meaning of 1-212(d)(1), G.S.,  is “to provide free of charge.”  The Commission also takes administrative notice of its decisions and orders in other Commission cases, which indicate that the remedy for an improper denial of a fee waiver under 1-212(d)(1), G.S., is to require that the records be provided free of charge, not that the records be provided on credit.  See, e.g., Presutti v. Department of Housing (paragraph 37 above), Nappi v. New Haven Police Department (paragraph 37 above).

 

48.  It is concluded that the phrase “waive any fee” in 1-212(d)(1), G.S., means “provide free of charge.”

 

49.  It is found that, under the Department’s policy, no inmate is indigent for purposes of copying fees under the FOI Act, and no inmate’s copying fees are ever waived.[3] Although now stated in different language, this is precisely the policy asserted by the respondent in Canady v. Department of Correction, above, and rejected by this Commission.  Simply put, the statute requires a waiver of fees.  If an inmate, regardless of his circumstances, must always either pay or be indebted for the payment of copying fees, there has been no waiver. 

 

50.  The Department nonetheless maintains that its so-called “standard” for indigence is fair because other services also are required to be reimbursed by the inmate.

 

51.  However, no statute has been brought to the Commission’s attention that, like 1-212(d)(1), G.S., requires that the fees for those other services be waived.  The Department is  therefore presumably free to require reimbursement for services other than copying fees under the FOI Act, since it has no obligation to waive those other fees.

 

52.  The Department also maintains that its policy provides greater access to records than its previous policy, because individuals who were not indigent under the old standard but who also were unable to pay the fees for copying would receive no records.  Under the current system, those inmates, as well as inmates who would have been found indigent under the previous policy, now receive the records, on the condition that an obligation is established against their trust accounts.

 

53.  The Department is to be commended for establishing the possibility of a reimbursement schedule for inmates who have very limited means, but are not indigent, to assure that those non-indigent inmates may receive public records, essentially, on credit.  But the statute nonetheless requires that the fee be waived for indigent individuals, and the fee has not been waived when the Department requires, and exacts, repayment.

 

54.  With respect to the Department’s argument concerning the federal PLRA, it is concluded that this federal law does not “otherwise provide” for the non-waiver of copying fees for inmates pursuant to 1-212(d)(1), G.S.  The Commission additionally observes, taking administrative notice of its decision and order in Canady v. Department of Correction, above, that no state statute addresses the non-waiver of FOI Act copying fees for inmates, and that the Department clearly sought in 2000, 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.”

 

55.  Moreover, the Commission notes that the Department’s Administrative Directives 6.10 and 3.10 apply by their express terms only to inmates, and not to members of the general public.  Consequently, it is found that the Department’s refusal to grant fee waivers applies only to inmates, not to any other persons requesting copies of records from the Department. 

 

56.  It is therefore concluded that the Department’s Administrative Directives 6.10 and 3.10 regarding indigence also discriminate between inmates and all other persons, and are therefore not permissible under 1-212(d)(1), G.S.

 

57.  Finally, the Department contends that its “standard” of indigence complies with the Commission’s decision in Canady v. Department of Correction, above, because that case ordered the Department to “apply the same standard of indigence to all FOI Act requests by inmates that it applies to other inmate matters generally.”  The Department maintains that it has done so, by requiring reimbursement for copies in the same manner that it requires reimbursement for other services.

 

58.  However, it is apparent that the Department no longer has a single standard of indigence “that it applies to other inmate matters generally,” but rather a standard for indigence with respect to property, and a policy of requiring reimbursement for copies provided under the FOI Act and for medical, dental, eyeglass prescription, education, and family visit services.  To the extent that the Department has any standard of indigence that applies to inmates, it is the standard that it applies with respect to property. 

59.  The Commission sees no reason at present to deviate from its policy of deferring to agency standards of indigence that are objective, fair and reasonable, and applied in a nondiscriminatory manner.  But a “standard” of indigence that, like the Department's, contains no standards and precludes any possibility of a finding of indigence is neither objective, fair nor reasonable.  Nor is a standard applied in a nondiscriminatory manner when it is applied only to one class of persons requesting records.

 

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

 

61.  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.   

 

62.  It is found that the Department’s policy using a “standard” that contains no standards, does not permit a finding of indigence, discriminates against inmates, and  establishes an indebtedness for copying fees, regardless of the financial circumstances of prisoners who are not currently able to pay for copies, curtails the rights granted by 1-210(a) and 1-212(d)(1), G.S.  Moreover, it is found that the Department’s policy of using a so-called “standard” of indigence that implicitly denies indigence, for FOI Act purposes, 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 Department’s denial of fee waivers for any inmates seriously offends the spirit of the January 2004 memorandum of understanding between the FOI Commission and the Department of Correction.

 

63.  It is concluded that the Department’s policy of denial of fee waivers to all inmates, and so much of its Administrative Directives that implement such a policy, is void, pursuant to 1-210(a), G.S.

 

64.  As to the question of additional remedies, 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. 

 

65.  Previously, the Commission in its final decision in Canady v. DOC, above,  concluded that the Department had denied all inmates the right to a waiver of fees for indigent individuals under 1-212(d)(1), G.S., and ordered the Commissioner of the Department to “apply the same standard of indigence to all FOI Act requests by inmates that it applies to other inmate matters generally.”  As found in paragraph 58, above, no such generally applied standard now exists.

 

66.  In apparent response to Canady, which was not appealed by the Department, the Department created a bifurcated system of indigence for “property” and “services,” and amended Administrative Directives 6.10 and 3.10 with the effect of, once again, denying all inmates the right to a waiver of fees for indigent individuals under 1-212(d)(1), G.S.

 

67.  Because the issue was not raised by any party, the Commission did not previously in Canady v. DOC, above, or in any other case, take into consideration that the Department’s policy with respect to indigence treats inmates differently from all other individuals requesting fee waivers.  The Department has previously argued that,  because it supplies inmates with their basic needs (and at a substantial cost), no inmate should be considered indigent for FOI Act purposes.  See Canady, above.  That position was clearly rejected by the Commission in Canady

 

68.   The Commission takes administrative notice of the fact that a member of the general public might, like an inmate, have most of his or her basic needs supplied through public assistance.  Since the Department’s reimbursement policy applies only to inmates, an impoverished member of the general public supported by public assistance would still, unlike an inmate, be eligible for a fee waiver for copies of records obtained from the Department, notwithstanding his receipt of public assistance. 

 

69.  It is concluded that the Department’s indigence policy with respect to copies provided under the FOI Act discriminates against inmates because of their status as inmates.

 

70.  It is further concluded that, consistent with the requirement that any permissible standard of indigence be applied in a nondiscriminatory manner, the Department must apply the same standard of indigence to inmates as it does to the general public.

 

71.  In light of Department’s failure to establish an objective, fair, consistent and reasonable standard for inmates after being ordered to do so, the Commission believes that the relief appropriate to rectify the denial of the complainant’s rights consists of two parts, one addressed to the charge presently imposed on the complainant’s trust account, and one addressed prospectively to the complainant’s right—and all inmates’ rights—to  have claims of indigence fairly evaluated by the Department: (1) to vacate the obligation placed on the complainant’s account, and (2)  to require the Department to apply a uniform standard of indigence to all requests for public records, whether those requests come from inmates or from the general public.

72.  With respect to the complainant’s request for the imposition of civil penalties against the two respondents, 1-206(b)(2), G.S., provides in relevant part:

 

… 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.

 

73.  It is found that the Department’s failure to establish an objective, fair, consistent and reasonable standard of indigence for inmates after being ordered to do so was without reasonable grounds.

 

74.  However, no evidence was presented at the hearing tending to show that either of the respondents was directly responsible for the Department’s policy of denying any fee waivers for inmates.

 

75.  Additionally, the Commission declines to consider the imposition of civil penalties against any other individuals, given the lack of notice to them, and given that the director of the Department’s Legal Affairs Office (who also represented the respondents in this matter) approved the changes to Administrative Directives 3.10 and 6.10.

 

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

 

            1.  The respondents shall forthwith remove the obligation of $137.25 from the complainant’s trust account.

 

2.  The Department’s policy of requiring reimbursement for copying fees paid by indigent inmates, and of denying fee waivers to all inmates, and so much of its Administrative Directives that implements such a policy, is declared void, pursuant to 1-210(a), G.S.

 

3.  Henceforth the Department shall, in determining whether inmates are eligible for fee waivers under 1-212(d)(1), G.S., apply the same standard of indigence as it currently applies to requests from the general public for fee waivers under the FOI Act.  If, for example, the Department uses the poverty guidelines updated periodically in the Federal Register by the U.S. Department of Health and Human Services under the authority of 42 U.S.C. 9902(2) to determine whether a member of the general public is indigent, the Department shall use the same guidelines to determine if an inmate is indigent.  If an inmate is found to be indigent, the inmate shall be provided copies free of charge, with no obligation of any kind established against any account of the inmate.  The Department shall not modify its standard of indigence with the effect of excluding inmates from the standard.  Under no circumstances shall the Department establish or apply a policy for determining indigence that precludes a finding that an inmate may be indigent.

                                                                                   

            4.  The Commission takes administrative notice of the fact that the Department has previously argued in Canady v. Department of Correction, above, that inmates should not receive fee waivers because the cost of incarceration exceeds federal poverty guidelines.  If the Department were to count the cost of incarceration as an asset of the inmate using the federal poverty guidelines as a standard of indigence, for example, the effect would be to deny fee waivers to all inmates, since in all cases the cost of incarceration would exceed the federal poverty guidelines.  That argument was rejected by the Commission in Canady.  Consequently, in complying with paragraph 3 of the order, above, the Department shall not, in determining an inmate’s indigence, count the cost of incarceration as an asset of the inmate.

 

 

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

 

Richard R. Quint, #123433

Garner Correctional Institution

50 Nunnawauk Road

PO Box 5500

Newtown, CT 06470-5500

 

Food Services Division,

State of Connecticut,

Department of Correction; and

Joan Ellis, State of Connecticut,

Department of Correction,

Freedom of Information Administrator

c/o Sandra Sharr, Esq.

Department of Correction

24 Wolcott Hill Road

Wethersfield, CT 06109

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2006-683FD/paj/6/14/2007

 

 

 

 



[1] But see 41-48, below, in which the Department argues that it did in fact waive the fee by virtue of deferring collection to a future date.

[2] While the proposed amendment to Administrative Directive 3.10 was announced in a November 4, 2005 memorandum from the Commissioner of the Department to district administrators, wardens and unit heads, its effective date nonetheless appears on its face to be December 15, 2005.  The difference in dates has no bearing on the applicability of the directive to the complainant’s later 2006 request.

[3] If the inmate never receives funds into his trust account, the debt may never be satisfied during the inmate’s incarceration, but no evidence was presented as to status of the obligation if that occurred.  In any event, even if the obligation were never satisfied, it does not follow that the fee was therefore waived.