FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Kacey Lewis,  
  Complainant  
  against   Docket #FIC 2010-350

State of Connecticut, Division of

Public Defender Services,

 
  Respondent May 11, 2011
       

 

The above-captioned matter was heard as a contested case on February 24, 2011 and April 11, 2011, at which times the complainant and the respondent appeared 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, 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.  It is found that, by letter dated March 31, 2010, the complainant made a request to the respondent for copies of:

 

         any and all documentation illustrating the total number of criminal defendants represented by your agency in the year of 2009 in the criminal court in the geographical area of Waterbury and judicial district of Waterbury….

         any and all documentation illustrating docket numbers and charges corresponding with the criminal defendants represented by your agency in the geographical area of Waterbury and the judicial district of Waterbury for the year of 2009…

         the names of the attorneys from your agency corresponding with the docket numbers and criminal defendants represented by your agency in criminal court in the geographical district of Waterbury and the judicial district of Waterbury for the year 2009.

 

2.  It is found that, by letter dated April 27, 2010, the respondent acknowledged receipt of the request, described in paragraph 1, above, and informed the complainant that any responsive, non-exempt records would be provided to him within three weeks.

 

3.  By letter of complaint dated June 2, 2010, and filed on June 4, 2010, the complainant appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with the request described in paragraph 1, above.

 

4.  It is found that, by letter dated June 7, 2010, the respondent provided answers to some of the questions raised by the complainant’s request,[1] described in paragraph 1, above, but denied the complainant copies of the requested records, on the ground that such records are not public records.  Alternatively, the respondent asserted, in the June 7, 2010 letter, that such records are exempt from disclosure pursuant to 1-210(b)(1), 1-210(b)(2), 1-210(b)(3), 1-210(b)(4) and 54-142c, G.S.. 

 

5.  At the February 24, 2011 hearing in this matter, the respondent moved to dismiss the complaint on the ground that the requested records do not relate to its “administrative functions,” citing Clerk of the Superior Court, Geographical Area Number Seven v. FOIC, 278 Conn. 28 (2006) (“Clerk”).  Alternatively, the respondent argued that the records are exempt from disclosure based on Rule 1.6 of the Connecticut Rules of Professional Conduct, the Sixth Amendment to the United States Constitution, and 1-210(b)(18), G.S.   According to the respondent, the information requested by the complainant is contained in the respondent’s client case files, which are attorney-client privileged and confidential. 

 

6.  The complainant objected to the motion to dismiss at the February 24th hearing, claiming he did not have sufficient notice thereof, and, at his request, the hearing was continued in order to provide him with an opportunity to prepare a response to the motion to dismiss, and to permit oral argument on such motion.  Oral argument on the motion to dismiss was heard at the April 11, 2011 hearing.

 

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 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:

 

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 1-212.

 

9.  Section 1-200(1), G.S. defines “public agency,” in relevant part, as “any judicial office, official, or body or committee thereof but only with respect to its or their administrative functions.” 

 

10.  The Commission concluded, in Thomas May v. State of Connecticut, Division of Public Defender Services, Docket #FIC 2009-394 (June 9, 2010), that the respondent is a body of the judicial branch, and is therefore a public agency, within the meaning of 1-200(1), G.S., but only with respect to its “administrative functions.”[2] 

 

11.   In Clerk, the Supreme Court considered the question of which records of the judicial branch are administrative in nature, and therefore subject to disclosure under the FOI Act, and which are adjudicative in nature, and thus are not subject to the Act.  In Clerk, a request was made to the court clerk to inspect the court’s pending book and daybooks[3], as well as any other nonexempt information contained in the court’s computer storage system, that would reflect certain criminal defendants’ names, addresses, dates of birth, docket numbers of the criminal cases; the dates, nature or types of court hearings; whether the defendants were represented by counsel; and whether the defendants were currently incarcerated.  Clerk, 278 Conn. at 745-46.

 

12.  The Supreme Court held in Clerk that “the judicial branch’s administrative functions consist of activities relating to its budget, personnel, facilities and physical operations and that records unrelated to those activities are exempt” from disclosure under the FOI Act.  Id. at 757.  Accordingly, the Court concluded that records containing the information sought in that case, described in paragraph 11, above, were not subject to disclosure under the FOI Act.  Id.

 

13.  It is found that the requested records, described in paragraph 1, above, do not relate to the respondent’s budget, personnel, facilities or physical operations and are therefore not related to the respondent’s administrative functions, as defined by the Supreme Court in Clerk

 

14.  In opposition to the motion to dismiss, the complainant argues that Clerk and Valvo v. FOIC, 294 Conn. 534 (2010), are distinguishable from the present case, in that those cases involved court records, not records of the public defender.  However, as noted in paragraph 10, above, the Commission previously found, in May, that the respondent is a body of the judicial branch.  Accordingly, it is concluded that the Supreme Court’s decision in Clerk controls this matter. 

 

15.  The complainant further argues that the motion to dismiss should not be granted because the respondent did not properly serve him with the motion and supporting memorandum.  Specifically, the complainant asserts that the respondent did not follow the requirements of the Connecticut Practice Book with regard to service of documents.  It is found that the respondent faxed a copy of the motion to dismiss and supporting memorandum, and also mailed a copy of each via the U.S. postal service, to the complainant, on or about February 24, 2011.  In addition, the hearing officer continued the hearing until April 11, 2011, in order to permit the complainant the opportunity to receive and review the respondent’s motion and memorandum, and to respond to it.  It is found that the complainant filed a written objection to the motion to dismiss with the Commission on March 22, 2011.  It is found that, even if the respondent did not follow the applicable rules with regard to service of documents, there was no prejudice to the complainant, and that this is not grounds for denial of the motion to dismiss.

 

16.  Based upon the findings of fact and conclusions of law above, it is further concluded that, for purposes of the request, described in paragraph 1, above, the respondent is not a public agency, and the Commission therefore lacks jurisdiction to adjudicate the complaint.

 

17.  Based upon the conclusion in paragraph 16, above, the Commission need not address the respondent’s other claims of exemption, described in paragraph 5, above.

 

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

 

1.  The complaint is dismissed.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 11, 2011.

 

 

__________________________

Cynthia A. Cannata

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:

 

Kacey Lewis #165480

Northern Correctional Institution

PO Box 665

Somers, CT 06071

 

State of Connecticut, Division of Public Defender Services

c/o Steven R. Strom, Esq. and

Ann E. Lynch, Esq.

Assistant Attorneys General

Office of the Attorney General

110 Sherman Street

Hartford, CT  06105

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-350/FD/cac/5/12/2011

 

                                                                       

 

 

 

 

 

 

 



[1] Although not required to answer questions under the FOI Act, counsel to the respondent stated, in the June 7th letter to the complainant, that the total number of cases in which a public defender was appointed in 2009 for Waterbury JD was 164 and for Waterbury GA was 3756; the names of the attorneys assigned to Waterbury JD and to Waterbury GA were also provided.

[2] May was appealed by the respondent on other grounds, see Division of Public Defender Services v. FOIC and Thomas May, CV 10-6006148 (N.B. Super. Ct.), and the appeal is currently pending.

 

[3] The pending book is a computer printout of all cases pending at a given court location, delivered from the statewide Judicial Informations Systems office once or twice a week.  The daybook is a paper log of all cases received by a given court, created by the clerks of the court and based, for criminal matters, upon the receipt of a uniform arrest report.  Clerk, 278 Conn. at 746 fn. 8 and 9.