Final Decision FIC2015-586
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In the Matter of a Complaint by |
FINAL DECISION | |
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Zackery Franklin,
Complainant |
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against
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Docket #FIC 2015-586 | |
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Scott Semple, Commissioner, State of
Connecticut, Department of Correction; and State of Connecticut, Department of Correction, Respondents |
June 8, 2016 |
The above-captioned matter was heard as a contested case on March 31, 2016, 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 September 8, 2015, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide him with a copy of the record he requested on August 14, 2015. The complainant requested the imposition of a civil penalty.
3. It is found that the complainant made an August 14, 2015 request to the respondents for the Catholic services roster from February 1, 2012 to April 9, 2012.
4. It is found that the complainant seeks to discredit testimony against him in his criminal trial by proving that he did not attend Catholic services from February 1, 2012 to April 9, 2012.
5. It is found that the complainant was not provided with a copy of the requested record.
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 requested record, if it exists, is a public record within the
meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
9. It is concluded that the requested record, if it exists, is a public record within the
meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
10. However, the respondents asserted that the requested record, which was more than three years old when requested, falls beyond the required records retention period.
11. The Commission takes administrative notice of State Records Retention Schedule S1: Administrative Records (Revised: 05/2014), page 8 of 22. Section S1-190, “Facilities Use Records,” provides that records that document the use of agency facilities for activities, programs and community events, such as religious services, are required to be retained for the current year plus one year, and may be destroyed after receipt of signed Form RC-108.
12. The complainant provided some evidence, in the form of hearsay, that the rosters are in fact retained for four years.
13. Although asked to do so by the hearing officer, the respondents did not produce a signed Form RC-108, which would have authorized the destruction of the records.
14. The respondents also offered no evidence of a search for the requested record.
15. At the hearing, the respondents represented that they would be willing to provide the complainant with a copy of the requested roster, with the names of all other inmates redacted, if they were able to locate it. The respondents made no claim of exemption for the record so redacted, and the complainant would be satisfied with the record so redacted.
16. It is concluded that the respondents violated §1-210(a), G.S., by failing to look for the requested record.
17. The Commission in its discretion declines to consider the imposition of civil penalties against the respondents.
12. The complainant provided some evidence, in the form of hearsay, that the rosters are in fact retained for four years.
13. Although asked to do so by the hearing officer, the respondents did not produce a signed Form RC-108, which would have authorized the destruction of the records.
14. The respondents also offered no evidence of a search for the requested record.
15. At the hearing, the respondents represented that they would be willing to provide the complainant with a copy of the requested roster, with the names of all other inmates redacted, if they were able to locate it. The respondents made no claim of exemption for the record so redacted, and the complainant would be satisfied with the record so redacted.
16. It is concluded that the respondents violated §1-210(a), G.S., by failing to look for the requested record.
17. The Commission in its discretion declines to consider the imposition of civil penalties against the respondents.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondents shall forthwith conduct a diligent search for the requested record, and, if located, provide a copy free of charge to the complainant. The respondent may redact from the record all inmate names other than the complainant’s.
1. The respondents shall forthwith conduct a diligent search for the requested record, and, if located, provide a copy free of charge to the complainant. The respondent may redact from the record all inmate names other than the complainant’s.
Approved by Order of the Freedom of Information Commission at its regular meeting of June 8, 2016.
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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:
Zackery Franklin #342427
Cheshire Correctional Institution
900 Highland Street
Cheshire, CT 06410
Cheshire Correctional Institution
900 Highland Street
Cheshire, CT 06410
Scott Semple, Commissioner, State of Connecticut,
Department of Correction; and State of Connecticut,
Department of Correction
c/o James Neil, Esq.
24 Wolcott Hill Road
Wethersfield, CT 06109
Department of Correction; and State of Connecticut,
Department of Correction
c/o James Neil, Esq.
24 Wolcott Hill Road
Wethersfield, CT 06109
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2015-586/FD/cac/6/8/2016