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Fee Fight

Daniel D'Ambrosio

October 14, 2009

The city of Hartford is tilting at the Freedom of Information windmill again, this time over a copying fee of $27.50.

The latest flap began more than a year ago in September 2008 when Prison Legal News, a national monthly publication focusing on prisoners' rights, submitted an FOI request to the city for electronic records from the case of Brian Thomes. In 2004, the 25-year-old Thomes was found passed out on the street from a drug overdose and taken to the hospital, where he was placed on suicide watch.

In the hospital, Thomes became physically violent, and Hartford police intervened, handing him over to judicial marshals to be locked up. Thomes hung himself from the bars of his cell that day, and the city ended up paying his estate $403,000 when a Superior Court judge found Hartford police had failed to inform the marshals that Thomes was suicidal.

Two months after PLN's request for documents, in December 2008, the city informed the publication that it would cost $27.50 to get the documents they requested, which is allowed under state statute; copying 54 pages at 50 cents per page. Prison Legal News requested a fee waiver, also allowed under statutes when the information being requested is for the public benefit — an easy argument to make for a nonprofit journal covering abuses of prisoners.

Hartford's Corporation Counsel, John Rose, was unmoved, however, and the request for the fee waiver was denied, along with the request for the documents in electronic form. Prison Legal News filed a complaint with the FOI Commission, which ruled in the publication's favor on Sept. 23 of this year, ordering the city to turn over the documents free of charge, either in printed or electronic form.

Editor Paul Wright, who was at the hearing, assumed that Attorney Nathalie Feola-Guerrieri from the Corporation Counsel's office, would turn over the documents, either then and there or shortly thereafter. He was wrong.

"She said she had to confer with Mr. Rose, who would probably appeal the decision," said Wright. "All I could think was, 'I'm glad I don't pay taxes in Hartford.'"

Assistant Corporation Counsel Melinda Kaufmann did not respond to e-mails and phone calls asking whether or not her office would appeal the decision, but she did invite the Advocate to review the documents in question. A copy would cost us $27.50. Kaufmann could not say how much had been spent in staff time already responding to PLN's complaint, and she didn't know how much an appeal would likely cost.

In fact the city has spent tens of thousands of dollars in unsuccessful appeals of FOI rulings over the past several years, blowing in excess of $50,000 recently in an attempt to reverse $400 worth of fines against Deputy Corporation Counsel Carl Nasto after he refused to release documents related to the criminal grand jury probe of Mayor Eddie Perez.

Wright said it was important for his publication not to simply pay the $27.50 fee because they don't want to set a precedent for the hundreds of FOI requests they make around the country every year.

"We have limited resources," said Wright. "It would bankrupt us if every time we asked for documents people said, 'Oh you have to pay a dollar a page.'"

City Councilman Matt Ritter, an attorney himself, has been critical of the Perez administration in the past for spending money on FOI dust-ups.

"It's very costly to appeal these decisions and very rare to have a Superior Court judge overrule a decision [of the FOI Commission]," he said.

Ritter acknowledges there are good arguments to be made either way in this latest FOI controversy, but he said the bottom line is that the city should not spend thousands of dollars defending a $27.50 fee.

"Generally speaking there has to be a cost/benefit analysis and there's no question we've appealed decisions in the past the majority of the council would not have appealed," said Ritter. "It's not worth it."