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Final Decision FIC2014-532
In the Matter of a Complaint by
FINAL DECISION
Jermaine Little,
     Complainant
     against
Docket #FIC 2014-532
Scott Semple, Commissioner, State of
Connecticut, Department of Correction;
and State of Connecticut, Department of
Correction,
     Respondents
July 22, 2015

     The above-captioned matter was heard as a contested case on June 26, 2015, 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 July 20, 2014, the complainant requested a copy of a form that he signed on July 4, 2014, indicating that he did not fear for his safety while in general population in Osborn Correctional Institution.
     3. It is found that on July 28, 2014, the complainant sent an angry note to his FOI liaison, accusing him of “playing this game” by not responding to his request within four business days.
     4.  It is found that on the same date, the FOI liaison told the complainant in writing that he had been out on vacation and so had not responded to the complainant’s request.  It is found that the liaison also acknowledged the complainant’s request, which he said he received that same day.
     5.  By letter of complaint filed August 12, 2014, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide him with the record he requested.  The complainant requested the imposition of civil penalties.
     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 … receive a copy of such records in accordance with the provisions of 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, facsimile, electronic or certified copy of any public record.”
     9.  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., to the extent such records exist.
     10. It is found that on August 14, 2014, the complainant’s FOI liaison informed the complainant that the correctional institution had been instructed not to use the “Release to Population” form that the complainant had signed and requested, because such forms “are not department recognized … forms.  All have subsequently been destroyed and the form you signed is no longer available.”
     11. It is found that the respondents no longer maintained the record requested by the complainant at the time that the respondents were prepared to comply with his request.
     12. It is found that the respondents failed to prove that the record had been destroyed at the time of the complainant’s request on July 20, 2014, or even at the time of the respondents’ acknowledgment on July 28, 2014, or at any time before August 14, 2014.
     13. It is found the respondents failed to prove that they were unable to comply with the complainant’s request in a prompt manner.
     14. It is concluded that the respondents violated §§1-210(a) and 1-212(a), G.S.
     15. Based on the facts and circumstances of this matter, the Commission declines to order the imposition of a civil penalty.
     The following order by the commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
     1.  Forthwith, the respondents shall inform the complainant as to when they received the order to destroy the “Release to Population” forms, including the form signed by the complainant, and also when such forms were, in fact, destroyed.
     2.  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 July 22, 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:
Jean Gonzalez
116 Ashley Street
2nd Floor
Hartford, CT  06105
Scott Semple, Commissioner, State of Connecticut, Department
of Correction; and State of Connecticut, Department Correction
c/o James Neil, Esq.
24 Wolcott Hill Road
Wethersfield, CT  06109
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2014-532/FD/cac/7/22/2015