Please refer to the attached Method of Compliance with the Notification Requirements of
Conn. Gen. Stat.
1-210(c), G.S., which supersedes the orders of the Commission herein.

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
John Sylvia,  
  Complainant  
  against   Docket #FIC 2008-584

Commissioner, State of Connecticut,

Department of Environmental

Protection; and State of Connecticut,

Department of Environmental Protection,

 
  Respondents August 12, 2009
       

 

The above-captioned matter was heard as a contested case on March 20, 2009 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.).

 

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 26, 2008, the complainant made a request to the respondents for the following records:

 

a.       any and all documents pertaining to “water reports at Osborn Correctional Institution (supervision of water), annual reports submitted by [the department of correction] from year’s 2003 through 2008;”

 

b.      any and all copies of the “policy and procedure of the septic ventilations at Osborn Correction Institute [including] its volume, capacity and specification.”

 

c.       a complete copy of any and all records pertaining to the volume, capacity and specifications of the sewage treatment at Osborn Correctional Institution, including records regarding the amount it was designed for and what it is accommodating now; and

 

d.      a complete copy of any and all violations of Regulations of Connecticut State Agencies at Osborn Correctional Institution (due to water or air  quality) from 2003 through 2008.

 

3.      By letter dated September 1, 2008 and filed on September 8, 2008, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to promptly comply with his records requests.  The complainant requested the imposition of a civil penalty against the respondent commissioner.

 

4.      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. 

5.      Section 1-210(a), G. S., provides 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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. 

6.      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.”

 

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

 

8.      It is found that the complainant made the same or similar request as described in paragraph 2, above, to the respondents on several earlier dates including February, May, and June of 2008.

 

9.      It is found that on or about November 20, 2008, the complainant was provided with over fifteen hundred records responsive to his request.

 

10.   At the hearing on this matter, the complainant contended that the respondents had not fully complied with his request because he had not been provided with any records for the years between 2006 through 2008 and there were no records regarding septic ventilation.

 

11.   It is found that in response to the complainant’s first request for the records described in paragraph 2, above, the respondents began the process of complying with the complainant’s request by consulting with all staff members who reasonably may have maintained responsive records, and searching multiple locations where responsive records would reasonably be maintained. 

 

12.   It is found that the respondents conducted a thorough search for records responsive to the complainant’s request and have provided the complainant with all non-exempt records responsive to his records request that are maintained by the respondent department.

 

13.   With respect to the timeliness of the respondents’ response, the meaning of the word “promptly” is a 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. 

 

14.    The advisory opinion describes 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.

 

15.   It is found that, after compiling the records, above, the respondents consulted with the Commissioner of the Department of Public Works (hereinafter “DPW”), pursuant to 1-210(b)(19), G.S., because the records pertained to the water supply plans of a prison and the respondents were concerned that there may be a safety risk in disclosing the records.  It is also found that the respondents promptly informed the complainant of its intentions in this regard by letter dated October 10, 2008. 

 

16.   Section 1-210(b)(19), G.S., provides in relevant part that disclosure is not required of:

 Records when there are reasonable grounds to believe disclosure may result in a safety risk, including the risk of harm to any person, any government-owned or leased institution or facility or any fixture or appurtenance and equipment attached to, or contained in, such institution or facility, except that such records shall be disclosed to a law enforcement agency upon the request of the law enforcement agency.  Such reasonable grounds shall be determined (A) with respect to records concerning any executive branch agency of the state or any municipal, district or regional agency, by the Commissioner of Public Works, after consultation with the chief executive officer of the agency ….  Such records include, but are not limited to:

(ix)  With respect to a water company, as defined in section 25-32a, that provides water service: Vulnerability assessments and risk management plans, operational plans, portions of water supply plans submitted pursuant to section 25-32d that contain or reveal information the disclosure of which may result in a security risk to a water company, inspection reports, technical specifications and other materials that depict or specifically describe critical water company operating facilities, collection and distribution systems or sources of supply . . . .

17.   It is found that the respondents’ consultation with the Commissioner of the Department of Public Works was appropriate given that the responsive records included water supply plans of a prison and the respondents’ provision of the responsive records to the complainant was not unduly delayed as a result of such consultation. 

 

18.  It is found that, after consultation with the Commissioner of the Department of Public Works (hereinafter “DPW”), the respondents also submitted the records to the Commissioner of the Department of Correction (hereinafter “DOC”) pursuant to their understanding of 1-210(c), G.S., on October 28, 2008, and relied on the DOC Commissioner to forward any records it deemed appropriate to disclose to the complainant.

 

19.   It is found that by letter dated November 21, 2008, the respondents were informed by the DOC that it did not withhold any of the responsive records from the complainant and that all such records were provided to him on November 20, 2008. 

 

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

 

Whenever a public agency receives a request from any person confined in a correctional institution or facility or a Whiting Forensic Division facility, for disclosure of any public record under the Freedom of Information Act, the public agency shall promptly notify the Commissioner of Correction or the Commissioner of Mental Health and Addiction Services in the case of a person confined in a Whiting Forensic Division facility of such request, in the manner prescribed by the commissioner, before complying with the request as required by the Freedom of Information Act.  If the commissioner believes the requested record is exempt from disclosure pursuant to subdivision (18) of subsection (b) of this section, the commissioner may withhold such record from such person when the record is delivered to the person's correctional institution or facility or Whiting Forensic Division facility.

 

21.   It is concluded that 1-210(c), G.S., requires a public agency to provide all records responsive to an inmate’s records request, for which no exemption is being claimed by that public agency, to that inmate after the public agency has notified the Commissioner of DOC or the Commissioner of Mental Health and Addiction Services of the inmate’s records request.  It is concluded that 1-210(c), G.S., does not require a public agency to consult with or to wait for the Commissioner of DOC to approve the disclosure of the responsive records prior to complying with the inmate’s request. 

 

22.   It is also concluded that, notwithstanding any action taken by the Commissioner of DOC to intercept the complainant’s receipt of the requested records once they were mailed, or otherwise delivered to, the complainant at the correctional institution or facility, the respondents were required to provide the responsive records to the complainant by mailing, or otherwise delivering, the responsive records to the complainant promptly after notifying the Commissioner of DOC of the complainant’s records request.

 

23.   It is found, therefore, that the respondents unduly delayed the provision of the responsive records to the complainant by waiting for, and relying on, the Commissioner of DOC to provide such records to the complainant and therefore, it is also found that the respondents failed to promptly comply with the complainant’s records request.

 

24.   It is concluded, therefore, that the respondents violated the disclosure provisions of 1-210(a) and 1-212(a), G.S., by failing to promptly comply with the complainant’s records request.

 

25.   It is found, however, that the respondents did not act in bad faith by consulting with the Commissioner of DOC but rather believed they were acting in compliance with the law.

 

26.   Consequently, the Commission declines to consider the complainant’s request for 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.

 

2.   The respondents are hereby informed that, in the future, non-exempt records responsive to an inmate’s request must be provided to that inmate by mailing, or otherwise delivering, such records to that inmate at that inmate’s correctional institution or facility promptly after notifying the Commissioner of DOC of such request. 

 

 

           

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 12, 2009.

 

____________________________

S. Wilson

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:

 

John Sylvia #208614 

Corrigan–Radgowski CC

986 Norwich-New London Tpke.

Uncasville, CT 06382

 

Commissioner, State of Connecticut,

Department of Environmental

Protection; and State of Connecticut,

Department of Environmental Protection

C/o Melinda M. Decker, Esq. and

Melisa Chan, Esq.

Department of Environmental Protection

79 Elm Street

Hartford, CT 06108

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-584FD/sw/8/14/2009