FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Michael Glen Smith,  
  Complainant  
  against   Docket #FIC 2010-681
Andrea Baker, Counselor Supervisor, State
of Connecticut, Department of Correction,
MacDougall-Walker Correctional
Institution; and State of Connecticut,
Department of Correction,
 
  Respondents September 14, 2011
       

 

The above-captioned matter was heard as a contested case on July 14, 2011, at which time the complainant and respondents 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 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 on August 23, 2010, the complainant requested copies of a report about an incident that occurred in “January 2010 in O-pod unit which Captain Butler was present for.” 

 

3.      It is found that the respondent Baker replied in writing to the complainant’s request during the first week of September, and told the complainant to expect a response within 12 to 15 business days.

 

4.      It is found that, with his request outstanding, the complainant on September 23, 2010 again requested a copy of the incident report described in paragraph 2, above.

 

5.      By letter of complaint filed October 25, 2010, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide him with the copies of records he requested, described in paragraph 2, above.  The complainant requested the imposition of a civil penalty against the respondent Baker.

 

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

 

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, …whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

7.      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.

 

8.      Section 1-212(a), 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.”

 

9.       It is concluded that the records described in paragraph 2, above, are public records within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

 

10.   It is found that the respondent Baker replied to the complainant on November 28, 2010, and informed him that she had found a report “close” to what he was requesting, that she needed to redact some information from the report, and that in recognition of the time he had been waiting for the report she would waive copying fees.

 

11.   It is found that the complainant received some pages of the report on December 21, 2010.  It is found that the respondents redacted names of inmates and first names of employees from the report.

 

12.   It is found that the complainant does not challenge the redactions. 

 

13.   The respondents presented an after-filed exhibit on July 18, 2011, which exhibit is herein marked Respondent’s Exhibit 2.  It is found that on July 16, 2011, the respondents provided pages one and two of the ten-page report to the complainant, because the complainant testified at the hearing in this matter that he did not receive pages one and two.

 

14.   It is found that the respondents initially withheld pages seven through ten of the report in their entirety.

 

15.   The respondents presented a second after-filed exhibit on July 19, 2011, which exhibit is herein marked Respondent’s Exhibit 3.  It is found that on July 19, 2011, the respondents provided pages seven through ten of the report to the complainant.  It is found that the respondents redacted names of inmates and first names of DOC employees from the records.

 

16.   The complainant contends that the respondents failed to comply promptly with his request and that the respondents’ delay was not in good faith.

 

17.   It is found that the respondents’ compliance was delayed in part because they were searching for an incident report by the complainant’s name, when it was actually referenced in the respondents’ data base by the another inmate’s name. 

 

18.   It is found that upon an unsuccessful search by the complainant’s name, the respondent Baker communicated with Captain Butler, who supplied the name of the other inmate.

 

19.   It is found that after the respondents discovered the record requested by the complainant, the respondent Baker explained to the complainant in person why it had taken so long to retrieve the report, explained that she would need to do some redactions before he could have the copies, and informed him that she would waive the copying fees in recognition of the delay.

 

20.   While the Commission commends the respondents for providing the requested records to the complainant even after the hearing in this matter, it is found, nevertheless, that the respondents failed to prove that the delay in providing pages seven through ten of the report was reasonable under the circumstances.  It is found, therefore, that the respondents failed to provide such records promptly.  There is no credible evidence, however, that the respondents acted in bad faith.

 

21.   It is concluded that the respondents violated the promptness requirements of 1-210(a), and 1-212(a), G.S. 

 

22.    After consideration of the entire record in this case, the Commission declines to consider the imposition of civil penalties against the respondent Baker.

 

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 requirements of 1-210(a) and 1-212(a), G.S.

 

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 14, 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:

 

Michael Glen Smith #220339

Corrigan-Radgowski Correctional Center

986 Norwich-New London Tpke.

Uncasville, CT  06382

 

Andrea Baker, Counselor Supervisor, State of Connecticut,

Department of Correction, MacDougall-Walker Correctional

Institution; and State of Connecticut, Department of Correction

c/o James E. Neil, Esq.

State of Connecticut, Department of Correction

24 Wolcott Hill Road

Wethersfield, CT  06109

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-681/FD/cac/9/14/2011