The above-captioned matter was heard as a contested case on May 30, 2014 and July 7, 2014, at which times 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 dated July 26, 2013 and filed with the Commission on August 7, 2013, the complainant alleged that the respondents violated the Freedom of Information (hereinafter “FOI”) Act by failing to provide him with copies of all of the records described in paragraph 3, below.

     3.  It is found that, by letter dated June 28, 2013, the complainant requested copies of five categories of records from Northern Correctional Institution (hereinafter “NCI”) Officers (hereinafter “C.O.”) and FOI coordinators, Chris Blais and Todd Sokolowski, which included the FOI request at issue herein, records regarding ventilation, Direct TV, food services, and the commissary at NCI (hereinafter the “requested records”).

     4.  It is found that, by letter dated July 1, 2013, C.O. Blais acknowledged the complainant’s June 28, 2013 request described in paragraph 3, above, and stated that, while his office is not “the keeper” of the requested records, they would assist the complainant by providing him with the appropriate contact information best suited to address each specific area of the complainant’s request.

     5.  It is found that on July 16, 2013, C.O. Sokolowski met with the complainant at NCI regarding the requested records, at which time, C.O. Sokolowski provided the complainant with eight (8) pages of food services records responsive to the complainant’s request described in paragraph 3, above.  It is also found that, during such July 16, 2013 meeting, C.O. Sokolowski requested prepayment of $200.00 from the complainant for copies of the remaining records compiled in response to the complainant’s request described in paragraph 3, above.

     6.  It is found that the complainant maintained that he was indigent, and declined to make payment.

     7.  Section 1-200(5), G.S., provides:

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

     9.  Section 1-212(a), G.S., provides in relevant part that:

     10. Additionally, §1-212(d)(1), G.S., provides:  “The public agency shall waive any fee provided for in this section when: (1) The person requesting the records is an indigent individual….”

     11. It is found that to the extent the respondents maintain the requested records, such records are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.

     12. At the hearing in this matter and in his post-hearing brief, the complainant contended that, from the time of his June 28, 2013 request described in paragraph 3, above, and during the 90-day look back and look forward periods set forth in the respondents’ directives, he was indigent, and that the respondents improperly denied his request for fee waiver.  The complainant also contended that the respondent Department of Correction’s (“DOC”) indigence standard for waiving copying fees for indigent inmates is objectionable, unfair and unreasonable.  The complainant specifically contended that the respondents’ standard of indigence is “discriminatory” against inmates.

     13. At the hearing and in their pre-hearing brief, the respondents claimed, however, that the complainant was not indigent under the respondent DOC’s indigence standard, as reflected in its Administrative Directive 3.10.  The respondents also maintained that they have established an objective, fair and reasonable standard for waiving copying fees for indigent inmates.

     14. At the hearing, the respondents testified that in evaluating whether the complainant was indigent at the time of the records request, they looked at the Department of Correction’s Administrative Directives 3.10 and 6.10, the complainant’s inmate trust account, and the Superior Court’s decisions in May v. Freedom of Information Commission, Superior Court, J.D. of New Britain, Docket No. HHB CV 06 4011456 (April 30, 2007, Schuman, J.); and Food Services Division Department of Correction, et. al. v. Freedom of Information Commission, Superior Court, J.D. of New Britain, Docket No. HHB CV-07-4014939 (April 29, 2008, Schuman, J.).

     15. Administrative Directive 3.10 (Fees, Reimbursements and Donations), in effect when the complainant made his June 28, 2013 request, provides, in relevant part:

     16. Administrative Directive 6.10 (Inmate Property) provides, in relevant part, that “[a]n inmate shall be considered indigent when he or she has less than five dollars ($5.00) on account at admission or when the monetary balance in his or her inmate trust account, or in any other known account, has not equaled or exceeded five dollars ($5.00) at any time during the preceding ninety (90) days.”

     17. It is found that at the time of the records request described in paragraph 3, above, the complainant had a spendable balance of four dollars and ninety-four cents ($4.94) in his inmate trust account.  It is also found that the complainant had approximately two-hundred and thirty-three dollars and fifteen cents ($233.15) in his inmate PLRA escrow account.¹  It is further found, and the complainant concedes, that just prior to submitting his June 28, 2013 request at issue herein, he made various purchases at the commissary reducing his spendable balance below five dollars ($5.00).

     18. It is also found that during the 90 days preceding the complainant’s request, the complainant had a balance in his inmate trust account that exceeded five dollars ($5.00).  Specifically, on May 5, 2013, which was during such 90-day period, the complainant had a starting spendable balance of twenty-two dollars and thirty-nine cents ($22.39) in his inmate trust account.

     19. Since 1992, the Commission has taken the position that it is within the discretion of the custodial public agency to set its own standard of indigence, as long as the standard is “objective, fair and reasonable, and applied in a nondiscriminatory manner.”  May v. Freedom of Information Commission, Superior Court, J.D. of New Britain, Docket No. HHB CV 06 4011456 (April 30, 2007, Schuman, J.).

     20. In Food Services Division Department of Correction, et. al. v. Freedom of Information Commission, supra, the Court stated, in part, that “the department [respondent DOC] can devise a definition of indigence for purposes of copying fees that looks backward over a period of time, and possibly even looks forward, to screen out cases in which an inmate might manufacture temporary indigence in order to obtain copies of department records at no charge.”  Significantly, the Court recognized that even “[s]uch a definition would not…screen out truly indigent inmates who are entitled by law to copies of records with no financial consequences.”

     21. The Commission also takes administrative notice of its decisions in Docket #FIC 2010-030; Bryant Rollins v. Freedom of Information Officer, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction; Docket #FIC 2009-137; Bryant Rollins v. Administrator, State of Connecticut, Department of Correction, Freedom of Information Office; and State of Connecticut, Department of Correction; and Docket #FIC 2009-483; Bryant K. Rollins v. Executive Director, State of Connecticut, University of Connecticut Health Center, Correctional Managed Health Care; and State of Connecticut, University of Connecticut Health Center, Correctional Managed Care, in which this Commission approved the DOC standard of indigence insofar as it looks at the inmate’s trust account balance as of the date of the request, and looks back in time on the inmate’s trust account history.

     22. It is concluded that the respondents did not violate §1-212(d)(1), G.S., by refusing to waive copying fees for the complainant at the time of his request in this matter.

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

     1.  The complaint is hereby dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of July 23, 2014.

__________________________
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:

Derrick Taylor #179983
Northern Correctional Institution
287 Bilton Road
P.O. Box 665
Somers, CT  06071

Commissioner, State of Connecticut, Department of Correction;
and State of Connecticut Department of Correction
c/o James Neil, Esq.
State of Connecticut,
Department of Correction
24 Wolcott Hill Road
Wethersfield, CT  06109

and

Steven Strom, Esq.
Assistant Attorney General
State of Connecticut,
Office of the Attorney General
110 Sherman Street
Hartford, CT  06105

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2013-482/FD/cac/7/23/2014