FOOD SERVICES DIVISON v. FOIC, No. HHB CV 07-4014939 (Apr. 30, 2008)

2008 Ct. Sup. 6919, 45 CLR 543
No. HHB CV 07-4014939Connecticut Superior Court Judicial District of New Britain at New Britain
April 30, 2008

Memorandum of Decision
CARL J. SCHUMAN, JUDGE.

The plaintiff, the food services division of the state department of correction (the department), appeals from the decision of the state freedom of information commission (the commission), invalidating the definition of “indigent individual” used by the department for the purpose of waiving copying fees for records requested by prison inmates under the Freedom of Information Act, General Statutes § 1-200 et seq. (FOIA). The court dismisses the appeal in part and sustains the appeal in part.

I
The commission found, and the record establishes, the following facts. In November 2006, Richard R. Quint, then an inmate within the department’s prison system, requested records under FOIA pertaining to food service invoices, inventories, menus, budgets, and distributors. Quint also requested a waiver of copying fees on the ground of indigence. The department provided Quint 549 pages of records. The department then assessed an obligation of $137.25 against Quint’s inmate trust account.[1]

In December 2006, Quint appealed to the commission, alleging that the department violated FOIA by failing to comply with his request for records and denying his request for a waiver of copying fees. After a hearing, the commission found that the department had provided the requested records in accordance with FOIA. (Return of Record [“ROR”], p. 295.) The commission nonetheless found, in paragraph two of its order, that the department’s policy of requiring reimbursement for copying fees paid by indigent inmates and of denying unconditional fee waivers for all inmate copying requests violated FOIA. (ROR, p. 306.) In paragraph three of its order, the commission ordered that henceforth the department “apply the same standard of indigence as it currently applies to requests from the general public for fee waivers under the FOI Act. CT Page 6920 If, for example, the Department uses the poverty guidelines updated periodically in the Federal Register by the U.S. Department of Health and Human Services under the authority of 42 U.S.C. 9902(2) to determine whether a member of the general public is indigent, the Department shall use the same guidelines to determine if an inmate is indigent. If an inmate is found to be indigent, the inmate shall be provided copies free of charge, with no obligation of any kind established against any account of the inmate. The Department shall not modify its standard of indigence with the effect of excluding inmates from the standard. Under no circumstances shall the Department establish or apply a policy for determining indigence that precludes a finding that an inmate may be indigent.” (ROR, pp. 306-07.)

The department appeals.

II
General Statutes § 4-183(j) governs this court’s review of the merits of an agency’s decision. This section provides that:

The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment.

Stated differently, “[j]udicial review of an administrative agency decision requires a court to determine whether there is substantial CT Page 6921 evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable.” (Internal quotation marks omitted.) Schallenkamp v. DelPonte, 229 Conn. 31, 40, 639 A.2d 1018 (1994).

III A
General Statutes § 1-212(a)(1) provides that the fee for a copy of any public record provided under FOIA by a state agency shall not exceed twenty-five cents per page.[2] Subsection (d) of § 1-212 states that “[t]he public agency shall waive any fee provided for in this section when: (1) [t]he person requesting the records is an indigent individual . . .” The ultimate issue before the commission was whether the department properly applied this subsection.

FOIA does not define the term “indigent individual.” Since 1992, the commission has taken the position that “the standard for establishing one’s eligibility for a waiver or reduction of the fees charged for copies of public records [pursuant to General Statutes § 1-212(d)(1)] is wholly within the discretion of the custodial public agency, as long as the standard is objective, fair and reasonable, and applied in a nondiscriminatory manner.” May v. Freedom of Information Commission, Superior Court, judicial district of New Britain, Docket No. HHB CV 06 4011456 (April 30, 2007, Schuman, J.) [43 Conn. L. Rptr. 319]. The court approved this interpretation in May v. Freedom of Information Commission, supra, Superior Court, Docket No. HHB CV 06 4011456, and neither party challenges it further here.

B
The department first argues that the commission lacked jurisdiction to address the department’s definition of indigence because of the effect of General Statutes § 1-212(f). This provision provides: “The Secretary of the State, after consulting with the chairperson of the Freedom of Information Commission, the Commissioner of Correction and a representative of the Judicial Department, shall propose a fee structure for copies of public records provided to an inmate, as defined in section 18-84, in accordance with subsection (a) of this section. The Secretary of the State shall submit such proposed fee structure to the joint standing committee of the General Assembly having cognizance of matters relating to government administration, not later than January 15, 2000.” The department’s theory is that, under § 1-212(f), the commission has only a consultative role in the process of formulating a CT Page 6922 policy on providing copies of public records to inmates and that it therefore lacks authority to invalidate the department’s policy.

The department concedes that it did not raise this argument before the commission. Ordinarily, the failure of a party to raise a contemporaneous objection before an administrative agency authorizes the superior court to deny review of that issue. See Burnham v. Administrator, 184 Conn. 317, 321-23, 439 A.2d 1008 (1981). Exceptions to this rule may exist for claims of constitutional or jurisdictional error. Id., 322. Although it is perhaps arguable that this matter qualifies as a claim of jurisdictional error; see Southern New England Telephone Co. v. Department of Public Utility Control, 261 Conn. 1, 21, 803 A.2d 879 (2002) (“Administrative agencies . . . are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves . . .”) (internal quotation marks omitted); it is unnecessary to categorize the department’s claim precisely because, however categorized, it is of no merit.

Section 1-212(f) by its own terms creates a procedure that must take place, if at all, by January 10, 2000. It does not prohibit the commission from acting after that date. It thus does not negate the effect of the commission’s general review and remedial authority, especially when, as here, it is exercised in 2006. That authority resides in General Statutes § 1-206(b)(2), which provides in part: “In any appeal to the Freedom of Information Commission under subdivision (1) of this subsection or subsection [c] of the this section, the commission may confirm the action of the agency or order the agency to provide relief that the commission, in its discretion, believes appropriate to rectify the denial of any right conferred by the Freedom of Information Act.” There is nothing in § 1-212(f) that bars the commission from exercising this authority in this case to determine that the department’s definition of indigence violates FOIA.[3]

C
In imposing an obligation of $137.25 on Quint’s inmate trust account in this case, the department applied a version of Administrative Directive 3.10 that became effective on December 14, 2006. (ROR, p. 298.) This directive provides: “An inmate shall be charged twenty-five cents for each page copied. The funds shall be deducted from the inmate’s trust account prior to providing the inmate with the documents. In the event that an inmate does not have sufficient funds in his/her account to pay for the fees associated with the production of documents requested, the documents shall be provided to the inmate and an CT Page 6923 obligation to pay shall be established on the inmate’s trust fund. Twenty percent (20%) of all subsequent funds received by the inmate shall be credited against the obligation until the obligation is satisfied.”

The commission found that, under this policy, “no inmate is indigent for purposes of copying fees under the FOI Act, and no inmate’s copying fees are ever waived.” (ROR, p. 302.) The commission’s position recognizes that, for indigent inmates, the payment of fees is simply deferred.

The department’s response is that the commission’s decision unfairly requires it to freeze the inmate’s financial status at the time of his request. The department maintains that it will now have to provide free copies of records to inmates who are careful enough to ensure that they are indigent at the one moment that the department considers their request.

The commission’s position is reasonable. Its approach recognizes that every agency, including the department, has discretion to craft its own definition of indigence, but that even this discretion has limits. Thus, the department does not have discretion to define indigence in a way that makes it impossible to obtain a complete fee waiver. As it stands now, however, even an inmate with no assets at all will have an encumbrance placed on his inmate trust account.

The department can address its concerns about abuse of the system without denying fee waivers to truly indigent prisoners. Indeed, the department already does so in other areas. Administrative Directive 6.10, which addresses the standard of indigence for property items, provides: “In matters related to property an inmate shall be considered indigent when: (1) the inmate’s account balance has not exceeded five dollars ($5.00) for the previous 90 days and (2) the inmate has less than five dollars ($5.00) in another known source.”[4] Thus, the department can devise a definition of indigence for purposes of copying fees that looks backward over a period of time, and possibly even looks forward, to screen out cases in which an inmate might manufacture temporary indigence in order to obtain copies of department records at no charge. Such a definition would not, however, screen out truly indigent inmates who are entitled by law to copies of records with no financial consequences. Because the department failed to avoid this consequence in its existing definition of indigence, the commission acted reasonably in invalidating the department’s definition Schallenkamp v. DelPonte, supra, 229 Conn. 40.

CT Page 6924 D
The commission noted that the department in prior cases had argued that “because it supplies inmates with their basic needs (and at a substantial cost), no inmate should be considered indigent for FOI Act purposes.” (ROR, p. 305.) The commission concluded that “the Department’s indigence policy with respect to copies provided under the FOI Act discriminates against inmates because of their status as inmates.” (ROR, p. 305.) Accordingly, in paragraph three of its order, the commission ordered that the department “apply the same standard of indigence as it currently applies to requests from the general public for fee waivers under the FOI Act.” (ROR, p. 306.)

The department challenges this conclusion and order. Its challenge has merit. The commission cited no evidence in the record to support its findings. Instead, the commission merely took “administrative notice of the fact that a member of the general public might, like an inmate, have most of his or her basic needs supplied through public assistance.” (ROR, p. 305.) There is no evidence, however, as to whether any substantial segment of the public is situated similarly to involuntarily institutionalized prison inmates. Prison inmates may well present unique management or financial concerns that could justify a different policy with regard to copying fees. There is also no finding concerning the department’s standard of indigence for members of the general public and how it differs from the one in question.

Until there is evidence on these matters, there is no basis to conclude that the department’s adoption of a different standard of indigence for prison inmates results in unfair discrimination or, for that matter, any discrimination at all. Thus, the commission went too far in prohibiting the department from creating a separate standard of indigence for inmates. In this regard, there is insufficient evidence in the record to support the commission’s findings of fact and its conclusion is unreasonable. See Schallenkamp v. DelPonte supra, 229 Conn. 40. It would have been sufficient for the commission to invalidate the department’s current standard of indigence, leaving the contours and validity of a new policy to the next case.

IV
In sum, the court dismisses the appeal in part. The court approves the commission’s decision to invalidate the department’s standard of indigence. If the department intends to charge Quint for the copies it provided him, it must do so under a new standard that conforms to this decision. The court sustains the appeal as to that part of paragraph CT Page 6925 three of the commission’s order that, based on the record in this case, prohibits the department from adopting a different standard of indigence for inmates. The court expresses no opinion on whether the department may rely on such a distinction in the future.

It is so ordered.

CT Page 6927