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Extensive article on PLN's public records litigation involving Hartford, CT

Hartford Advocate, Jan. 1, 2010.
Extensive article on PLN's public records litigation involving Hartford, CT - Hartford Advocate 2010

Written by Daniel D’Ambrosio

Tuesday, 04 May 2010 15:00

Hartford files a 35-page brief defending its decision not to waive a $27.50 fee

The city of Hartford filed a 35-page memorandum in Superior Court last week explaining why it should not be forced by the Freedom of Information Commission to waive a $27.50 fee it wants to charge a small nonprofit publication for copies of documents related to a prison suicide.

“They’re trying to charge us $27.50 for something they can fax us free,” says Paul Wright, editor of Prison Legal News.

Wright points out the city has already paid a $300 filing fee to make its appeal, plus the staff time to put together the memorandum and argue in front of the FOI Commission.

“Your city attorney is using a lot of city resources to try to prevent disclosure of documents that belong to the public and can be disclosed at no cost to anyone,” says Wright.

Prison Legal News routinely receives fee waivers from state and federal agencies around the nation, according to Wright, because of the nature of its work to monitor prison systems in the public interest.

The memorandum from Hartford’s Office of Corporation Counsel is the latest round in the city’s long-running war with the FOI Commission, and includes the allegation that the commission is biased against the city. The FOI Commission has repeatedly ruled against Hartford when it has refused to release documents, and the city has repeatedly appealed those rulings and lost.

In an editorial last December the Hartford Courant cited the Prison Legal News case as an example of the city’s “unhealthy animus to open government,” and said the city had spent $100,000 in legal fees since March 2008 defending against secrecy complaints filed with the FOI Commission by the Courant.

The Hartford City Council has become so exasperated with the city’s insistence on battling it out with the FOI Commission that it recently passed a resolution requiring city employees to pay out of pocket their own fines imposed for violating FOI law. (Previously, the city was paying those fines.) Speaking from personal experience, Councilman Ken Kennedy recalled that in 2004, Corporation Counsel John Rose tried to charge him “well over $400” for documents he requested concerning the school building program, even though state statute clearly showed he was entitled to the documents free of charge. Kennedy ended up in front of the FOI Commission, which ruled in his favor. Surprisingly, Rose didn’t appeal.

The recent memorandum is an appeal of the FOI Commission’s September 2009 decision that the city must grant the request of Prison Legal News, a Vermont-based publication and website focusing on prisoners’ rights, to waive a $27.50 copying fee for documents relating to the case of Brian Thomes.

In 2004, Thomes, 25, was found unconscious on a city street from a drug overdose and taken to the hospital, where he was placed on suicide watch. Thomes became violent in the hospital and Hartford Police were called, handing him over to judicial marshals to be jailed after subduing him. Thomes hung himself in his cell that day, and the city paid $403,000 to Thomes’ estate when it was determined in court that Hartford Police failed to inform the marshals that Thomes was suicidal.

There are 55 pages of documents related to the case that PLN wants; at 50 cents per page that comes to a total copying fee of $27.50. PLN asked that the fee be waived, given that it was requesting the information for the general welfare and public benefit.

“If the public doesn’t know what’s going on in its penal institutions it can’t demand reform,” says Wright. “It’s too late for Thomes but it’s arguably not too late for those coming after him.”

But the city refused to waive the fee, or to supply the files in electronic form. As the city explains in its appeal, it reviewed the applicable statutes and case law provided by PLN, took into account “the ease of access by the public” to the documents in question, and the fact that other news media, including the Hartford Courant, had already reported on the case, and determined “it was not in the interest of the general welfare to waive the fees in this situation.”

When PLN objected, the FOI Commissioner assigned to review the case sided with the city. But upon review by the full commission that decision was reversed, and the city was ordered to waive the fee. That violated 23 years of precedence and was a serious case of overreach, according to the city.

“The Commission exceeded its statutory authority and abused its discretion when it ordered Hartford to waive fees despite the fact that Hartford had determined that in its judgment the waiver was not in the interest of the general welfare,” states the memorandum. “The statute is clear and unambiguous that the decision to waive fees is based solely on the judgment of the public agency. Nothing within the Freedom of Information Act provides the Commission the authority to overturn a public agency’s judgment regarding whether the waiver is in the interest of the general welfare.”

Calling the commission’s ruling “arbitrary and capricious,” the city asks the Superior Court to reverse it.

The city’s memorandum also takes the opportunity to denigrate Prison Legal News, sniffing that it has only 55 subscribers in Connecticut and that “approximately sixty-five percent (65%) of the subscribers are currently in prison.”

It’s true, says Wright, that of PLN’s approximately 7,000 subscribers, about 65 percent are in prison. But the publication has a readership of 70,000, according to Wright, and gets about 100,000 hits each month on its website. Inmates don’t have access to the Internet.

“They have a real contempt for the media,” says Wright of the city’s Office of Corporation Counsel. “They have no grasp of the media’s role in a free society. Newsworthiness doesn’t end at Hartford’s city limits. [Prison suicide] is a national issue.”

Kennedy says the city may well have a valid point arguing it has sole discretion to refuse a fee waiver, but wonders whether it’s a point worth making, given the filing fee for the appeal, and the attorney time to write it.

"If all that is at stake is $27.50, I’m not sure it’s a good use of public dollars to appeal this case," says Kennedy.

He says the administration’s request to increase the Corporation Counsel’s litigation budget to $3.4 million in the 2010-2011 budget from $2.8 million in last year’s budget is sure to receive a great deal of scrutiny from the city council, given what seems to be the never-ending brouhaha surrounding the city and FOI requests.



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