FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by FINAL DECISION

David McNichol,

 
 
  Complainant  
  against   Docket #FIC 2008-180

Commissioner, State of Connecticut, Department of Public Safety; and

State of Connecticut, Department of

Public Safety,

 
  Respondents January 14, 2009
       

 

The above-captioned matter was heard as a contested case on August 29, 2008, at which time the complainant and the respondents 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.).

 

1.  The respondents are public agencies within the meaning of 1-200(1), G.S.

 

2.  By letter dated March 18, 2008, and filed with the Freedom of Information (“FOI”) Commission on March 19, 2008, the complainant appealed to the Commission, alleging that the respondents denied him the right to inspect or copy records.  The complainant also alleged that the respondents charged him improper fees for copies that he did not receive.

 

3.  It is found that, by letter dated January 8, 2008, with accompanying “Application For Freedom of Information Act” form dated January 8, 2008, the complainant made a request to the respondents for a copy of the following documents:

 

a.       “All reports including supplementary and narrative reports, statements, transcripts, warrants and affidavits in case number DPS 04 015486.”  (Hereinafter “the requested records”).

 

4.  It is found that, by letter dated January 28, 2008, the respondents acknowledged the complainant’s request.  The respondents also stated that “[p]ursuant to Connecticut General Statutes section 29-10b, the fee for a search/copy of each investigative report is $8.00.”

 

5.  It is found that, by accompanying letter dated February 6, 2008, the complainant sent a check in the amount of eight dollars for copies of the requested records.

 

6.  It is found that, by letter dated March 7, 2008, the respondents informed the complainant that the information the complainant is seeking “is not subject to disclosure pursuant to Connecticut General Statutes sections 17a-101k and 54-142a.”  The respondents further stated that the complainant “may be able to obtain the information [he seeks] from the State’s Attorney’s Office through the discovery process available to [the complainant] in [his] pending habeas appeal.”

 

7.  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.

 

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

 

[e]xcept 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 the provisions of section 1-212.

 

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

 

10.  It is found that, to the extent the requested records exist and are maintained by the respondents, such records are public records within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

 

11.  The respondents contend that the requested records have been erased pursuant to 54-142a, G.S.

 

12.  Section 54-142a(c), G.S., provides in relevant part:

"Whenever any charge in a criminal case has been nolled in the Superior Court…if at least thirteen months have elapsed since such nolle, all police and court records and records of any state’s or prosecuting attorney or the prosecuting grand juror pertaining to such charge shall be erased…" [Emphasis added.]

 

13.  Section 54-142a(e), G.S., further provides in relevant part:

"…any law enforcement agency having information contained in such erased records shall not disclose to anyone, except the subject of the record …information pertaining to any charge erased under any provision of this section…."

 

14.  It is found that the requested records pertain to a criminal case that was nolled at least thirteen months prior to the complainant’s request for such records on January 8, 2008, within the meaning of 54-142a(c), G.S. 

 

15.  It is also found that the respondents are a “law enforcement agency” within the meaning of 54-142a(e), G.S.  Consequently the requested records are “erased” within the meaning of 54-142a, G.S.

 

16.  It is therefore concluded that the respondents did not violate the FOI Act by declining to provide copies of the requested records.

 

17.  The respondents also contended that 17a-101k, G.S., applied to the requested records.  However, it is not necessary to address such exemption.

 

18.  With respect to the complainant’s contention that the respondents charged him improper fees for copies that he did not receive, the respondents claim that a search was conducted for the requested records pursuant to 29-10b, G.S.  The respondents contend that such provision requires that the respondents charge an eight dollar fee for a search and copy of each investigative report, and if no document is produced, then the respondents must charge eight dollars for the search itself.

 

19.  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.

 

20.  It is found that the records maintained by the respondents that are responsive to the complainant’s request described in paragraph 3a., above, are reports within the meaning of 29-10b, G.S.

 

21.  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.  Consequently, the respondents did not violate the fee provisions of the FOI Act by charging the complainant eight dollars for the search of the requested records.

 

 

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.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of January 14, 2009.

 

 

 

________________________________

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:

 

David McNichol, #313199

MacDougall-Walker Correctional Institution

1153 East Street South

Suffield, CT 06080

 

Commissioner, State of Connecticut,

Department of Public Safety; and

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/2008-180/FD/paj/1/22/2009