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Final Decision FIC2011-220
In the Matter of a Complaint by
FINAL DECISION
Anthony Torres,
     Complainant
     against
Docket #FIC 2011-220
Joan Ellis,
Freedom of Information Liaison,
State of Connecticut,
Department of Correction; and
State of Connecticut,
Department of Correction,
     Respondents
February 22, 2012

The above-captioned matter was heard as a contested case on November 21, 2011, and January 10, 2012, at which times the complainant and respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, the above captioned matter was consolidated with Docket # FIC 2011-104; Joan Ellis, Freedom of Information Liaison, State of Connecticut, Department of Correction.  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 April 1, 2011, the complainant requested records from the respondent liaison related to the following: 
     [a]  Any and all documents/records created and/or generated by NCI Deputy Warden Faucher and/or Capt. Jason Cahill…[and]… any and all other officials in the NCI, in written reply to Faucher’s note to Cahill dated January 13, 2011, that was affix[ed] on Anthony Torres #246027’s memo of December 20, 2010…. 
[This] request for documents/records must cover the period of January 13, 2011 through March 31, 2011…
     [b] Any and all Connecticut State Department of Correction… directives…[including, Administrative Directive 6.10 - Inmate Property]…which [have] coverage of confiscated and/or contraband property subject matters, dating from January 1, 1996 through April 14, 2010…[and]…
     [c]  Any and all Connecticut State Department of Correction – Northern Correctional Institution – Unit Directives, which [have] coverage of inmate property, including any and all unit directives of the NCI, which [have] coverage of confiscated and/or contraband property subject matters, dating from January 1, 1999 through March 31, 2011.  [Emphasis in original omitted].
3. By letter dated April 11, 2011, and filed on April 27, 2011, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide him with copies of the records, described in paragraph 2, above.  The complainant also requested that the Commission impose a civil penalty against the respondent liaison.
4. Section 1-200(5), G.S., defines “public records or files” as:
     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 section 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 section 1-212.
6. Section 1-212(a), G.S., provides in relevant part that “any 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 the records requested by the complainant, to the extent that they exist, are public records and must be disclosed in accordance with §§1-200(5), 1-210(a) and 1-212(a), G.S.
8. At the hearing, the respondents testified that they performed a complete and thorough search for records responsive to the complainant’s April 1st request.  With respect to the request described in paragraph 2[a], above, the respondents testified that they did not locate any responsive documents.  With respect to the requests described in paragraphs 2[b] and 2[c], above, the respondents testified that they located and attempted to provide the complainant with copies of records that were responsive to such requests.  The respondents contended that the complainant refused to accept the records that they had located, and testified that they were willing to provide the complainant with such records.
9. The complainant testified that on August 31, 2011, the respondents attempted to hand-deliver to him certain records that they claimed were responsive to his requests described in paragraphs 2[b] and 2[c], above, but that they refused to provide the complainant with such records unless he acknowledged the receipt of the records and withdrew, in writing, his complaint in this matter.  In addition, with respect to his request described in paragraph 2[a], above, the complainant contended that there should exist records responsive to such request, and that, if there were no responsive records, then the respondents should have notified him in writing that no records exist. 
10. It is found that the respondents performed a thorough search for records responsive to the complainant’s April 1st request.
11. It is found that the respondents have no records responsive to the complainant’s request described in paragraph 2[a], above.  It is also found that the FOI Act does not require a public agency to inform a requester in writing that there are no responsive records.  See Docket #FIC 2007-574; Bradshaw Smith v. Elizabeth E. Feser, Superintendent of Schools, Windsor Public Schools; Milo W. Peck, Paul J. Panos, as Members, Board of Education, Windsor Public Schools; and Board of Education, Windsor Public Schools.
12. It is concluded, therefore, that the respondents did not violate the FOI Act with respect to the request described in paragraph 2[a], above.
13. With respect to the requests described in paragraphs 2[b] and 2[c], above, it is found that the respondents refused to provide the complainant with the records that they located unless the complainant agreed, in writing, to withdraw his complaint in this matter.  It is also found that the conditional proffer of the records almost five months after the request for such records was not prompt, within the meaning of §1-212(a), G.S.
14. Based upon the findings in paragraph 13, above, it is concluded that the respondents violated the provisions of §§1-210(a) and 1-212(a), G.S., when they withheld from the complainant records that were responsive to the requests described in paragraphs 2[b] and 2[c], above.
15. Notwithstanding the conclusion reached in paragraph 14, above, the Commission in its discretion declines to impose a civil penalty in this matter.
 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 provide the complainant with copies of the records responsive to the requests in paragraphs 2[b] and 2[c], above, free of charge.

Approved by Order of the Freedom of Information Commission at its regular meeting of February 22, 2012.
__________________________
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:
Anthony Torres #246027
Northern Correctional Institution
287 Bilton Road
P.O. Box 665
Somers, CT  06071
Joan Ellis, Freedom of Information Liaison, State of Connecticut, Department of
Correction; and State of Connecticut, Department of Correction
c/o James E. Neil, Esq.
State of Connecticut
Department of Correction
24 Wolcott Hill Road
Wethersfield, CT  06109
___________________________
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2011-220/FD/cac/2/22/2012