FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Luis Fernandez,  
  Complainant  
  against   Docket #FIC 2009-028

Director, State of Connecticut,

Department of Public Safety,

Division of Scientific Services; and

State of Connecticut,

Department of Public Safety,

 
  Respondents December 16, 2009
       

           

The above-captioned matter was heard as a contested case on May 4, 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.  By letter of complaint filed January 13, 2009, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying his request for public records.

 

            3.  It is found that the complainant made a written request on November 23, 2008 to the respondents for copies of certain records relating to him and to: (a) evidence handling generally, (b) certain personnel records, job descriptions, and complaints against certain individual employees, and (c) certain specified laboratory drug-testing procedures.  In all, the complainant requested 37 categories of documents.  The complainant excluded from his request (a) any documents not associated with him, (b) any notes, memoranda or other calculations.  The complainant also requested certified copies of the records provided, using “Form 2866 (Certification of Official Record”); and, as to records that didn’t exist, a certification to that effect using “Form 3050 (Certification of lack of records).”  Finally, the complainant requested a fee waiver because disclosure of the information would be in the public interest, and also because he was indigent.

 

4.  It is found that the respondents acknowledged the request by letter dated December 5, 2008, and asked for more specific information with regard to certain portions of the request. 

 

5.  It is found that, following the filing of the complaint in this matter, the respondents, by letter dated January 14, 2009, wrote to the complainant saying that the request had not been denied, asking again for clarification, and enclosing an affidavit of indigence for the complainant to complete.  The respondents directed the complainant to include a copy of his inmate trust account statement for the past six months, and to notarize all documents submitted.

 

6.  It is found that, by letter dated January 23, 2009, the complainant responded by enclosing an affidavit of indigence together with a copy of his inmate trust account statement.  The affidavit indicated a “PLRA” indebtedness in the original amount of $650, an obligation to repay that indebtedness monthly at a rate of 20% of any income received, and an unknown balance on that indebtedness.[1]  With respect to the respondents’ request for clarification, the complainant clarified some portions of the request, but for the most part simply reiterated his original request.

 

7.  It is found that, by letter dated January 30, 2009, the respondents informed the complainant that they required a notarized copy of his DOC inmate account, and that the complainant had omitted from his affidavit of indigence any and all income he had received, despite the fact that his trust account statement reflected the receipt of income. 

 

8.  It is found that the complainant submitted a second affidavit in support of indigence dated February 6, 2009, in which he essentially denied that certain gifts he had received were income, and “submit[ted] under oath” his trust account information.

 

9.  It is found that, by letter dated April 15, 2009, the respondents informed the complainant that they had completed their search and review in response to his request, and had found 135 pages responsive to his request.  The respondents indicated that they had determined that four pages of these records were exempt from disclosure under 1-210(b)(3)(D), G.S., as records whose disclosure would reveal investigatory techniques not otherwise known to the public.  The respondents submitted these four pages to the Commission for an in camera inspection.  The respondents did not expressly deny the complainant’s request for a fee waiver, but did demand payment in the amount of $32.75, after receipt of which the respondents would release the records to him.

 

10.  It is found that the records located were standard operating procedures, employment applications and resumes, and job descriptions. 

 

11.  It is found that the 135 pages are responsive to the complainant’s request, and that the respondents conducted a diligent search for those records.  However, the Commission makes no finding whether the 135 pages are all of the records responsive to the complainant’s request, as the complainant has had no opportunity to inspect them and challenge their completeness.

 

12.  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.

 

13.  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.

 

14. 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.”

 

15.  It is found that the 135 pages of records located by the respondents are public records within the meaning of 1-200(5), 1-210(a) and 1-212(a), G.S.

 

16.  The respondents contend that the four pages submitted for an in camera inspection are exempt from disclosure pursuant to 1-210(b)(3)(D), G.S., because they reveal investigatory techniques not generally known. 

 

17.  Section 1-210(b)(3)(D), G.S., provides that disclosure is not required of:

Records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of … investigatory techniques not otherwise known to the general public ….

 

18.  It is found, however, that the four pages merely describe the steps taken to enter data into a computer system in order to open new computer files for certain kinds of evidence recording.  It is found that, while the file creation steps are specific to the respondents’ computer system, they are in general entirely familiar to anyone who has ever created a computer file.  The four pages do not describe in any way the manner in which the evidence itself is actually tested.  Indeed, the four pages reveal significantly less in terms of investigatory techniques than the records offered to the complainant.

 

19.  It is concluded that the four pages do not reveal investigatory techniques of any kind, do not reveal computer use techniques that are unfamiliar to the computer-using public, and therefore are not exempt to disclosure pursuant to 1-210(b)(3)(D), G.S. 

 

20.  It is therefore concluded that the respondents violated 1-210(a) and 1-212(a), G.S., by failing to offer the four pages of in camera documents to the complainant.

 

21.  With respect to the respondents’ denial of the complainant’s claim of indigence, 1-212(d)(1), G.S., provides that “The public agency shall waive any fee provided for in this section when … [t]he person requesting the records is an indigent individual…..”

 

22.  It is found that the respondents offered no evidence of the method or standard by which it determined the complainant’s indigence, other than to generally assert that he had funds in his inmate trust account. 

 

            23.  The Commission makes no finding as to the asserted indigence of the complainant.  However, the respondents have failed to meet their burden of proving that they have a standard of indigence, or that they applied it fairly to the complainant.    

 

24.  It is therefore concluded that the respondents violated 1-212(d)(1), G.S., by denying the complainant’s request for a fee waiver without fairly applying an objective and reasonable standard.       

 

25.  With respect to the respondents’ requirement, in connection with an inmate’s request for a fee waiver, that the inmate provide a “notarized” copy of his inmate trust account, Webster’s Third New International Dictionary Unabridged 1543 (1993) defines “notarize” as “1: to acknowledge or attest as a notary public … 2: to cause (a document) to be acknowledged or attested before or authenticated by a notary public.  The American Heritage Dictionary, Second College Edition 849 (1982), similarly defines “notarize” as “to authenticate or attest to as a notary public.”    

 

26.  The Commission takes administrative notice of the fact that inmate trust account statements are given to the inmates by the Department of Correction.  Neither the inmate nor the notary has any way of knowing whether the copy given to him is authentic, and the respondents offered no credible suggestions as to what the notary was to acknowledge or attest.

 

            27.  It is found that the only effect of requiring a “notarized” trust account statement in this case was only to delay disclosure and inconvenience the complainant.

 

28.  It is therefore concluded that the respondents’ requirement that an inmate provide a “notarized” copy of his inmate trust account statement is an obstacle without a legally meaningful purpose. 

 

29.  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.   

 

30.  It is found that the respondent’s policy of requiring inmates to have their trust account statements “notarized” is an agency rule that curtails the rights granted by 1-210(a), G.S. 

 

31.  It is therefore concluded that the respondent’s policy  of requiring inmates to submit “notarized” copies of their trust account statements is void, pursuant to 1-210(a), G.S.

 

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

 

1.  The respondents shall provide to the complainant all of the records described in paragraph 9 above, including the four in camera pages, free of charge.

 

2.  The respondents shall henceforth strictly comply with the requirements contained in 1-210(a), 1-212(a), and 1-212(d)(1), G.S.

 

3.  The respondents shall cease and desist from requiring inmates to submit “notarized” copies of their inmate trust account statements.

 

4.  The Commission notes that the respondents are free in the future to apply a fair, objective and reasonable standard to determining any inmate’s indigence, including the complainant’s.

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 16, 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:

 

Luis Fernandez, #279900   

Cheshire Correctional Institution

900 Highland Avenue

Cheshire, CT 06410

 

Director, State of Connecticut,

Department of Public Safety,

Division of Scientific Services; and

State of Connecticut,

Department of Public Safety

C/o Terrence O’Neill, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-028FD/sw/12/17/2009

 



[1] The Prison Litigation Reform Act of 1996 (“PLRA”) requires all prisoners to pay federal court filing fees in full.  A complex statutory formula requires an indigent prisoner to pay an initial fee of 20% of the greater of the prisoner’s average balance or the average deposits to the account for the preceding six months.  After the initial payment, the prisoner is to pay monthly installments of 20% of the income credited to the account in the previous month until the fee has been paid.  28 U.S.C. 1915(b).  If this was the complainant’s claimed PLRA indebtedness, then presumably he was indigent for the purposes of the PLRA, although not entitled to a fee waiver under federal law.