FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Brian Niblack,  
  Complainant  
  against   Docket #FIC 2006-627

Theresa Lantz, Commissioner,

State of Connecticut

Department of Correction,

 
  Respondent October 24, 2007
       

           

The above-captioned matter was heard as a contested case on May 16, 2007, 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 November 27, 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.  The complainant requested the imposition of civil penalties against the respondent.

 

            3.  It is found that the complainant made a written request on October 4, 2006 to the respondent for a copy of pages 3 and 4 of the March 14, 2005 “Incident Report – Supplemental,” and for a copy of Incident Report #039605.  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 (“DOC”) provided 23 pages of records responsive to the complainant’s request, and on or about October 24, 2006, deducted $1.34 from the complainant’s trust account (which represented the total balance in his account on that day), effectively denying the complainant’s request for a waiver of fees.

 

5.  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.

 

6.  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 ….

 

7.  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 ….”

 

8.  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.

 

9.  The complainant contends that he was indigent, and that the respondent improperly debited his trust account. 

 

10.  The respondent contends, 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.

11.  The lawfulness of so much of the respondent’s amended Administrative Directives 6.10 and 3.10 as relates to indigence was the subject matter of the Commission’s Final Decision in docket #FIC 2006-683, Quint v. Department of Correction.  The Commission takes administrative notice of that decision, which declared null and void the DOC’s policy of requiring reimbursement for copying fees paid by indigent inmates, and of denying fee waivers to all inmates.  The Commission in that decision ordered the DOC to implement a different standard of indigence. That order is the subject matter of a pending administrative appeal, and the Superior Court has not yet ruled on the DOC’s motion for a stay of that order.

 

12.  It is concluded that the respondent violated 1-212(d)(1), G.S., by refusing to apply an objective, fair and reasonable standard of indigence, and by refusing to waive copying fees for any inmate.

 

13.  With respect to the complainant’s request for the imposition of civil penalties against the respondent, 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.

 

14.  The Commission declines to consider the imposition of civil penalties against the respondent, given that the propriety of the DOC’s standard of indigence is the subject of a pending administrative appeal, and the Superior Court has not yet issued a decision on the DOC’s motion to stay the Commission’s order in that appeal.

 

 

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 refund $1.34 to the complainant’s trust account, and any other funds subsequently deducted for the records provided to him, and shall not establish any further obligation against the complainant’s trust account for the records provided to him.

 

 

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 24, 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:

 

Brian Niblack, #102280

Cheshire Correctional Institution

900 Highland Avenue

Cheshire, CT 06410

           

Theresa Lantz, Commissioner,

State of Connecticut

Department of Correction

c/o Nicole Anker, Esq.

Department of Correction

24 Wolcott Hill Road

Wethersfield, CT 06109

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2006-627FD/paj/10/29/2007