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Final Decision FIC2014-030
In the Matter of a Complaint by
FINAL DECISION
Juan Maldonado,
     Complainant
     against
Docket #FIC 2014-030
Commissioner, State of Connecticut,
Department of Correction; and State of
Connecticut, Department of Correction,
     Respondents
October 8, 2014

     The above-captioned matter was heard as a contested case on July 31, 2014, 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 December 16, 2013, the complainant requested copies of all emails sent or received in 2013 concerning “[the complainant] and his incomplete sentence calculation.” The complainant referenced the emails of eight staff members (Mortimer, Manley, Baker, DiGennero, Vazquez, DeVeau, Barrone, and Dezurenda), but stated that his request was not limited to those people.

     3.  By letter of complaint filed January 15, 2014, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide him with copies of the records he requested. 
     4.  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.
     5.  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 … receive a copy of such records in accordance with the provisions of section 1-212.
     6.  Section 1-212(a), G.S., provides in relevant part:  “Any person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record.”
     7.  It is concluded that the records requested by the complainant are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
     8.  It is found that in January 2014, the respondents’ FOI liaison made an inquiry to at least one of the named staff, and received back a letter and three pages of e-mails from one staff member.
     9.  It is found that on June 4, 2014, the liaison sent the complainant’s request to five of the eight named staff members and asked them to search for e-mails.  (It is found that the liaison did not send the request to the acting commissioner or to the two staff members who had since retired.)
     10. It is found that staff member Mortimer replied four minutes later that he did not have any responsive e-mails.  It is found that staff member Barone replied eleven minutes later that she did not have any responsive e-mails.  It is found that staff member Vazquez replied 35 minutes later that she had nothing other than what was provided in January.  It is found that staff member Digennaro replied two days later that she searched and did not have any responsive e-mails. 
     11. It is found that at some point after the retirement of staff members Baker and Manley the respondents switched to Microsoft Outlook.  It is found that Baker’s and Manley’s e-mails are now stored off-site in a database.  It is found that the respondents charge a fee to retrieve any e-mails in such off-site database, and that requests are backed up until December 2014.  It is found that the respondents did not search this database.
     12. The complainant is dissatisfied with the respondents’ search because, he testified, he saw Mortimer and Manley send e-mails to DiGennaro in the spring of 2013 concerning his sentence calculation.
     13. It is found that the respondents failed to prove that they performed a diligent and thorough search for all of the records requested by the complainant. 
     14. It is concluded that the respondents violated §§ 1-210(a) and 1-212(a), G.S., by failing to prove that no other records exist that are responsive to the complainant’s request.
     The following order by the commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
     1.  The respondents shall within four weeks of the date of this Decision perform a diligent and thorough search of the off-site database of e-mails for records responsive to the complainant’s request and provide any records retrieved to the complainant free of charge; with respect to the emails of Commissioner Dzurenda, the respondents shall have six weeks from such date to perform such search and provide such records.
     2.  The respondents shall within four weeks of the date of this Decision perform a diligent and thorough search of the e-mails of the named staff members, including determining that the search encompasses all the e-mails for 2013 and all the staff members’ electronic email files; with respect to the emails of Commissioner Dzurenda, the respondents shall have six weeks from such date to perform such search and provide such records.
     3.  The respondents shall send a letter to the complainant informing him of the results of their search and providing any additional records free of charge.
     4.  Henceforth, the respondents shall strictly comply with §§1-210(a) and 1-212(a), G.S.

Approved by Order of the Freedom of Information Commission at its regular meeting of October 8, 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:
Juan Maldonado #236268
MacDougall-Walker Correctional Institution
1153 East Street South
Suffield, CT  06080
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

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2014-030/FD/cac/10/8/2014