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Final Decision FIC2011-673
In the Matter of a Complaint by
FINAL DECISION
Thomas Holmes,
     Complainant
     against
Docket #FIC 2011-673
Commissioner, State of Connecticut,
Department of Correction; and State of
Connecticut, Department of Correction,
     Respondents
September 27, 2012

     The above-captioned matter was heard as a contested case on July 19, 2012, 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 November 16, 2011, the complainant made a written request for a copy of all records relating to a search of his cell the day before, on November 15, 2011.
     3.  It is found that the complainant directed his request to his liaison counselor supervisor and sent a copy to the warden.
     4.  It is found that the warden acknowledged receipt of the complainant’s request on November 18, 2011.  It is found that the warden sent a copy of the acknowledgement to the deputy warden and to the complainant’s counselor supervisor.
     5.  By letter filed December 13, 2011, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act, by failing to provide him with a copy of the records he requested.
     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, to the extent that they exist, 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.
     10.  It is found that on December 3, 2011, the complainant pled guilty to the disciplinary charges against him.
     11.  It is found that upon the complainant’s guilty plea and the resolution of the disciplinary matter, all paperwork except for the disciplinary report and the process summary was destroyed via paper shredder. 
     12.  It is found that the particular records that the complainant sought – an anonymous note and a statement of support by another inmate – are no longer maintained by the respondents.
     13.  It is found, however, that at least the inmate’s statement of support did exist and was maintained by the respondents at the time of the complainant’s request just one day after the incident.  It is found that such record or records did exist and were maintained at the time that the warden acknowledged the complainant’s request and forwarded the acknowledgement to the deputy warden and the complainant’s liaison counselor supervisor on November 18, 2011.
     14.  It is found that the respondents had notice of the complainant’s request, and it is found that the respondents did not inform the complainant that by pleading guilty to the disciplinary charge, he would effectively forfeit his access rights under the FOI Act with respect to the records he requested.
     15.  It is found that the respondents failed to ensure the preservation of the records requested by the complainant.
     16.  Notwithstanding the finding in paragraph 12, above, it is concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., by failing to promptly provide the complainant with the copies of records he requested, described in paragraph 2, above.
     The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint.
     1.  Henceforth, the respondents shall strictly comply with the provision of §§1-210(a) and 1-212(a), G.S.
     2.  The Commission wishes to advise the respondents that Records Retention Schedule #12-3-1 for the Department of Correction states that no records may be destroyed if there are pending or active Freedom of Information Act requests for such records.
Approved by Order of the Freedom of Information Commission at its regular meeting of September 27, 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:
Thomas Holmes # 291343
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.
Department of Correction
24 Wolcott Hill Road
Wethersfield, CT  06109
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2011-673/FD/cac/9/27/2012