FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

George Cuartero,

Complainant

against Docket #FIC 87-192

Town Clerk of the Town of New Milford,

Respondent June 8, 1988

The Commission adopted the proposed findings and order of the Hearing Officer in the above-captioned case at its special meeting of December 9, 1987. At its regular meeting of January 13, 1988, the Commission granted the respondent's motion to reopen the above-captioned case solely to determine whether compliance with its order would infringe upon the software licensing company's copyright. The matter was heard as a contested case on March 22, 1988, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint.

After consideration of the entire record, the following facts are found:

1. Paragraphs 1-9 and 12-20 of the findings of the final decision adopted by the Commission in the above-captioned case at its December 9, 1987 special meeting are incorporated herein.

2. Paragraph 1 of the Commission's order states: "The respondent shall forthwith provide the complainant with a copy of the requested land record index on a computer diskette for which the complainant shall bear the actual cost."

3. Paragraph 3 of the Commission's order states: "In complying with paragraph one of the order, the respondent may need not disclose any copyrighted software."

4. The respondent claims that to comply with paragraph 1 of the Commission's order would violate paragraph 3 of that order by disclosing copyrighted software, and in turn, subject the Town of New Milford to liability for copyright infringement and breach of contract.

5. The respondent also claims that the requested land record index no longer is maintained in her office, and is stored permanently with the licensing company in Ohio.

Docket #FIC 87-192 Page 2

6. The respondent further claims that she can retrieve the requested land record index the following ways:

a. Copy the requested land record index onto another flexible diskette. To do so would require changing the operating software, which would cost approximately $100.

b. Remove the requested land record index from the master tape and place it on a duplicate tape, which would cost approximately $200, including labor and materials.

c. Make a duplicate of the back-up copy of the requested land record index, after purging the operating software from the back-up copy. To do so would require extensive changes to the operating software.

7. The software license and index system agreement between the licensing company and the Town of New Milford states that the computer programs are the property of the company and cannot be divulged or disseminated.

8. The respondent maintains the land record index on a micro-computer indexing system. Each day, the respondent enters land record data onto the computer and prints a merged month-to-date index. The computer software simultaneously generates a daily back-up copy of the data to prevent loss of information due to damage or destruction to the computer system's equipment. The current day data is merged with prior day data and is printed into one alphabetical listing. The computer also prints a proof list of all index data. The proof list is checked against the actual documents and any errors found that are clearly marked are corrected if required.

9. Each week, the finished land record data is transmitted to the licensing company on flexible diskettes for further editing, analysis and processing. Along with the diskettes, the respondent sends to the licensing company a proof list. The licensing company uses the proof list to verify the data on the diskettes and then permanently stores the land record index on the master tape.

Docket #FIC 87-192 Page 3

10. The licensing company prints and delivers to the respondent a merged year-to-date index at the end of each month. This replaces the month-to-date listings printed by the respondent. The respondent then begins a new month-to-date listing and purges the data on the daily back-up copies so that they can be reused for current data. At the end of the year, the licensing company provides the respondent with an annual printout of the land record index along with a directory.

11. It is found that the respondent's computer system is designed specially to allow the respondent to transmit the land record data onto flexible diskettes only one time. If the flexible diskettes are damaged, the respondent can retrieve the data by making a duplicate of the back-up copy or by examining the proof list.

12. It therefore is concluded that to the extent the respondent is able to transmit the requested land record index onto an additional flexible diskette, she would have to create a specially designed program and would require technical assistance to do so. To change the operating software would cost approximately $100.

13. Although the respondent claims that the flexible diskettes and the back-up copies contain the operating software, it is found the operating software is maintained only on a 4.6 megabyte hard disk.

14. It therefore is concluded that the respondent failed to prove that transmitting the requested land record index onto an additional flexible diskette would infringe upon the licensing company's copyright or would constitute a breach of contract with the company.

15. It is found, however, that the requested land record index no longer is maintained on the respondent's computer system and is stored permanently on a master tape with the licensing company in Ohio.

16. It therefore is concluded that at the present time, transmitting the requested data onto an additional diskette is not a viable alternative for the complainant to gain access to the requested data.

17. It is found that the respondent can make a duplicate of a back-up copy, without changing the operating software and would not require technical assistance to do so.

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18. It is found that to the extent the respondent can make a duplicate of a back-up copy, she can provide the complainant with the requested land record index, in the medium requested, and at minimal cost to the complainant.

19. It is found, however, that at the present time, the daily back-up copies contain current land record data and the requested data has been stored permanently on a master tape with the licensing company in Ohio.

20. It is found that the land record data stored on the magnetic tape is the property of the respondent. A copy can be secured by the respondent upon request of the licensing company. The respondent is charged for the computer time to duplicate the magnetic tapes and the cost of the tape reels.

21. It is found that by loading the requested land record index from the master tape back onto the respondent's computer system, the respondent can make a duplicate of the back-up copy and can provide the complainant with access to the data in the medium requested.

22. For the reasons set forth in paragraph 13, above, it is concluded the respondent failed to prove that to make a duplicate of the back-up copy containing the requested data would infringe upon the licensing company's copyright and would constitute a breach of contract with the company.

23. It is found that pursuant to §1-19(a), G.S., the respondent is required to keep and to maintain all public records in her custody at her regular office or place of business in an accessible place.

24. It is found that by virtue of the town's agreement with the licensing company, the respondent has chosen to have the land record data stored with the company in Ohio.

25. It therefore is concluded that the respondent cannot impose on the complainant additional charges for the time spent to remove the requested land record index from the master tape and to reload the data back onto the computer system.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

1. The respondent shall forthwith provide the complainant with a copy of the requested land record index on a computer diskette.

Docket #FIC 87-192 Page 5

2. In complying with paragraph 1 of the order, above, the complainant shall provide the respondent with an appropriate number of suitable diskettes on which to copy the requested land record index.

3. The respondent henceforth shall act in strict compliance with the requirements of §§1-15 and 1-19(a), G.S.

4. The Commission cautions the respondent that the public information stored in her computer system may be subject to state retention statutes and that she should contact the Public Records Administrator for the applicable retention schedule.

Approved by order of the Freedom of Information Commission at its special meeting of June 8, 1988.

Catherine H. Lynch

Acting Clerk of the Commission