The above-captioned matter was heard as a contested case on January 20, 2012 at which time the complainant and the respondents appeared, stipulated to certain facts 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. By letter dated May 31, 2011, and received on June 2, 2011, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his request for a copy of his master file maintained by the respondent department (hereinafter “file”).

3. 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 section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method. 

4. 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 . . . receive a copy of such records in accordance with section 1-212. 

5. 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.”

6. It is found that the requested file is a public record within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.

7. It is found that the complainant’s first request for a copy of his file was made by letter dated December 21, 2010 to his prison counselor and that he was told that he needed to submit his request to a C.S. Trapasso as a “Freedom of Information” request.

8. It is found, however, that C.S. Trapasso responded to the complainant’s December 21, 2010 request by a letter dated that day informing him that his request had been received and that he would receive a response in the future. 

9. It is found that the complainant submitted three subsequent requests for his file: one on February 3, 2011 to the warden; one on May 17, 2011 to Captain Harlow; and another on May 19, 2011 to the warden. 

10.  It is found that the respondents provided the complainant with a copy of his file on May 27, 2011. 

11.  At the hearing on this matter, the complainant contended that although he has received a copy of his file, compliance with his request was not prompt.  The complainant requested that he be refunded the amount that he paid for the file as a remedy for the delay in compliance.  He also contended that he may not have been provided with his entire file. The complainant explained that he was uncertain because when he asked the counselor who delivered the file to him if he had received the entire file, he did not receive a definitive answer.

12.  At the hearing on this matter, the respondents contended that the complainant had been promptly provided with a copy of the file claiming that the only “FOI” request it received from the complainant was dated May 17, 2011, and that the complainant was provided with a copy of his file on May 27, 2011, just ten days after that request. 

13.  The respondents also contended that had the complainant indicated in his earlier requests that he was requesting the file under the FOI Act, his request would have been processed faster. 

14.  At the hearing on this matter, the respondents explained and it is found that when an inmate indicates in his records request that it is being made pursuant to the FOI Act, that request is forwarded to the respondent department’s FOI liaison, but otherwise, the records requests are handled by the inmate’s counselor.  The respondents explained, and it is found, that the FOI liaison’s compliance with an inmate’s records request is generally more prompt than that of the counselor.

15. Thus, the respondent’s contention is that it is the complainant’s fault that it took five months for him to receive a copy of his file because he failed to indicate in his letters that he was making the request pursuant to the Freedom of Information Act.

16.  It is found that there is no evidence in the record that the complainant knew, or should have known, the preconditions for prompt compliance by the respondents as described in paragraph 13 and 14, above.

17.  Furthermore, it is found that there is nothing in the FOI Act that conditions a public agency’s duty to promptly comply with a request for records upon the requester indicating that the request is being made pursuant to the FOI Act.  It is found that an agency’s duty to comply with the disclosure provisions of §§1-210(a) and 1-212(a), G.S., are triggered by the simple fact that it is a request for records.

18.  It is found that the respondents took almost five months to comply with a request when it could have taken just ten days.   

19.  It is found that, with no reasonable explanation for the delay, the respondents failed to promptly comply with the complainant’s request.

20.  It is concluded, therefore, that the respondents violated the disclosure provisions §§1-210(a) and 1-212(a), G.S., by failing to promptly comply with the complainant’s records request.

21.  Finally, it is found that while the prison counselor who delivered the file to the complainant could have been more reassuring that he was being provided with the entire file, there is no evidence in the record to even suggest that the file was incomplete.  Furthermore, counsel for the respondents represented at the hearing on this matter that all the documents that were in the complainant’s file had been provided.

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 provisions of §§1-210(a) and 1-212(a), G.S., requiring prompt compliance with records requests.

2. The respondents shall forthwith refund the complainant all fees paid for the copy of the file. 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 28, 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:

Scott Shefelbine #351816
c/o David Shefelbine
167 Mountain Spring Road
Tolland, CT  06084

Commissioner, State of Connecticut, Department of Correction; and
State of Connecticut, Department of Correction
c/o Nancy Kase O’Brasky, Esq.
State of Connecticut
Department of Correction
24 Wolcott Hill road
Wethersfield, CT  06109

Copy to:  Scott Shefelbine #351816
                Cheshire Correctional Institution
                 900 Highland Avenue
                 Cheshire, CT  06410

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission