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Final Decision FIC2014-303
In the Matter of a Complaint by
FINAL DECISION
David Taylor,
     Complainant
     against
Docket #FIC 2014-303
Chairperson, State of Connecticut,
Board of Pardons and Paroles; and
State of Connecticut, Board of
Pardons and Paroles,
     Respondents
February 25, 2015

     The above-captioned matter was heard as a contested case on December 5, 2014, at which time the complainant and the 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, 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, by letter dated April 21, 2014, the complainant made a request to the respondents for records containing the following information: 
a. the number of aliens declared, stipulated or determined parole eligible at 50% of imposed sentence under CGS sec 54-125d; and
b. the number of intake interviews and or hearings held under the statute for each individual year since its enactment.
     3.  By letter of complaint dated May 12, 2014, and filed May 14, 2014, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with the request described in paragraph 2, above.
     4.  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.
     5.  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.
     6.  Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record.”
     7.  It is found that upon becoming aware of the request, described in paragraph 2, above, the respondents conducted a thorough search for such records.  It is further found that the respondents maintain no records responsive to such request. 
     8.  At the hearing in this matter, the respondents argued that a civil penalty should be imposed against the complainant, pursuant to §1-206(b)(2), G.S., for filing the instant appeal frivolously and for the purpose of harassment. 
     9.  Section 1-206(b)(2), G.S., provides, in relevant part that:
[i]f the commission finds that a person has taken an appeal under this subsection frivolously, without reasonable grounds and solely for the purpose of harassing the agency from which the appeal has been taken, after such person has been given an opportunity to be heard at a hearing… the commission may, in its discretion, impose…a civil penalty of not less than twenty dollars nor more than one thousand dollars.
     10. It is found that the complainant previously requested records pertaining to deportations under §54-125d, G.S., from the respondents, which request was the subject of Docket #FIC 2013-718, David Taylor v. Chairperson, State of Connecticut, Board of Pardons and Paroles; and State of Connecticut, Board of Pardons and Paroles (August 13, 2014) (“Taylor I”).  The Commission takes administrative notice of the record and final decision in that case. 
     11. In Taylor I, the Commission found that the respondents did not maintain any records responsive to the complainant’s request for records of “the number of aliens deported under §54-125d since its enactment;” “the number of parole hearings held at 50% parole eligibility under the statute;” and “the number of parole hearings held at any other percentage pardon eligibility under the statute.”  (Emphasis added).  It is further found that the record in that case shows that the respondents explained to the complainant that the reason there are no records pertaining to deportations, or hearings on deportations, is because §54-125d, G.S., had, as of the date of the request in that case, never been used to deport anyone.   According to the respondents, the complainant therefore knew that there would be no records responsive to the request at issue in this case, and that therefore he filed this complaint frivolously.
     12. The complainant argued that the request in the instant case is different from the request in Taylor I, in that it seeks the number of aliens determined to be deportable, as opposed to the number actually deported.  According to the complainant, the appeal in this case was not frivolous and he had no intent to harass the respondents.
     13. It is found that the request in this case is slightly different from the request in Taylor I, and that it is possible that during the intervening time between the two requests, aliens might have been deported under §54-125d, G.S., resulting in responsive records.  Accordingly, it is found that the appeal was not taken frivolously and solely for the purpose of harassing the respondents.
     14. Accordingly, the request for the imposition of a civil penalty against the complainant is denied.
     15. Based upon the above findings of fact, it is concluded that the respondents did not violate the FOI Act as alleged in the complaint.
     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 February 25, 2015.

__________________________
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:
David Taylor # 272912
Osborn Correctional Institution
P.O. Box 100
Somers, CT  06071
Chairperson, State of Connecticut, Board of Pardons and Paroles;
and State of Connecticut, Board of Pardons and Paroles
c/o Steven R. 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/2014-303/FD/cac/2/25/2015