FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Robin Elliott,       
  Complainant  
  against   Docket # FIC 2008-601
Jeffrey McGill, Warden, State of Connecticut,
Department of Correction, Northern
Correctional Institution; and State of
Connecticut, Department of Correction,
 
  Respondents July 1, 2009
       

 

            The above-captioned matter was heard as a contested case on March 6, 2009, at which time the complainant and respondents 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 2008-608; Robin Elliott v. Antonio Martins, Claims/Property Liaison Officer, State of Connecticut, Department of Correction;  and State of Connecticut, Department of Correction; Docket # FIC 2008-625; Robin Elliott v. Peter Murphy, Warden, State of Connecticut, Department of Correction, MacDougall-Walker Correctional Institution; and State of Connecticut, Department of Correction; Docket # FIC 2008-628; Robin Elliott v. Peter Murphy, Warden, State of Connecticut, Department of Correction, MacDougall-Walker Correctional Institution; and State of Connecticut, Department of Correction; and Docket # FIC 2008-696; Robin Elliott v. Antonio Martins, Claims/Property Liaison Officer, State of Connecticut, Department of Correction; and State of Connecticut; Department of Correction.  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.      It is found that, by letter dated August 21, 2008, the complainant requested the following from the respondents:

[a] What is the reason prisoners are not allowed to were [sic] boot[s] at [Northern Correctional Institution].

 

[b] Does this edict include all boots, even if they are medically proscribed [sic].

 

[c] a copy of the directive, policy or rule that governs this practice and its authority.

 

[d] any documents, memo’s[sic], letters, e-mails or any communications, medical records of any nature that relate[] to the taking of my boots upon my return to Northern [Correctional Institution] from Maryland on 5-20-07.

                                                                                                                                               

3.      It is further found that, by letter dated September 2, 2008, the complainant sent a follow-up to his August 21st request, described in paragraph 2, above, to the respondents.

 

4.      By letter dated September 10, 2008, and filed on September 15, 2008, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide him with copies of the records, described in paragraph 2, above.  The complainant also requested the imposition of civil penalties against the respondents. 

 

5.      Section 1-200(5), G.S., defines “public records or files” as:

 

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 1-210(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 (1) inspect such records promptly during regular office or business hours . . . (3) receive a copy of such records in accordance with section 1-212.

 

7.      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.”

 

8.      It is found that the records requested by the complainant, to the extent that they exist, are public records and must be disclosed in accordance with 1-200(5), 1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure.

 

9.      It is found that the requests described in paragraph 2.a and 2.b, above, are requests for answers to questions, not requests for records. It is concluded as a matter of law that because the FOI Act does not require a public agency to either provide answers to questions or to create records in response to a request, those portions of the complainant's requests that seek answers to questions or that would require the respondents to create records for the complainant do not allege a violation of the Act.

 

10.  It is found that, by letter dated September 24, 2008, the respondents acknowledged the request, described in paragraph 2, above, and informed the complainant that:  “Unfortunately, this office never received your previous request for information regarding boots.  We are in the process of reviewing your request; someone from this department will be in contact with you in the near future.”

 

11.  It is found that, by letter dated January 5, 2009, the respondents provided the complainant with records responsive to the request in paragraph 2.c and 2.d, above.

 

12.  It is found that the respondents’ provision of the requested records, described in paragraphs 2.c, 2.d and 11, above, four months after they were requested, was not prompt within the meaning of 1-210(a) and 1-212(a), G.S.

 

13.   It is concluded, therefore, that the respondents violated 1-210(a) and 1-212(a), G.S., by failing to promptly provide to the complainant a copy of the requested records, described in paragraph 2.c and 2.d, above.

 

14.  Notwithstanding the conclusion in paragraph 13, above, and due to the facts and circumstances of this case, the Commission declines to consider the imposition of a civil penalty in this matter.

 

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

                                                                       

1.      Henceforth, the respondents shall strictly comply with the promptness provisions of 1-210(a) and 1-212(a), G.S.

 

 

Approved by Order of the Freedom of Information Commission at its special meeting of July 1, 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:

 

 

Robin Elliott, #24941

Northern Correctional Institution

287 Bilton Road

PO Box 665

Somers, CT 06071

 

Jeffrey McGill, Warden, State of Connecticut,

Department of Correction, Northern Correctional Institution; and State of Connecticut, Department of Correction

c/o Sandra A. Sharr, Esq.

Legal Director

Department of Correction

24 Wolcott Hill Road

Wethersfield, CT 06109

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2008-601FD/paj/7/2/2009