FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by Final Decision

M. Jeffry Spahr,

Complainant

against Docket #FIC 95-71

State of Connecticut, Freedom of Information Commission,

Respondent January 24, 1996

The above-captioned matter was heard as a contested case on November 15, 1995, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. Docket #FIC 95-68, M. Jeffry Spahr v. State of Connecticut, Freedom of Information Commission, was consolidated with the above-captioned matter for purpose of hearing.

After consideration of the entire record, the following facts are found and conclusions of law are reached:

1. The respondent is a public agency within the meaning of 1-18a(a), G.S.

2. By letter of complaint dated and filed (via facsimile) on March 20, 1995, the complainant appealed to the Commission alleging that the respondent violated the Freedom of Information ("FOI") Act by:

a. failing to respond within four days to his March 8, 1995 request for a copy of the hearing tape in docket #FIC 94-127, Lloyd Crossland v. Norwalk Conservation Commission;

b. failing to provide him with a complete copy of the tape, as described in a., above;

c. requiring blank tapes prior to providing him with a copy of the tape, as described in a., above.

3. It is concluded that pursuant to the provisions of 1-21i, G.S., the Commission has jurisdiction to hear this appeal.

Docket #FIC 95-71 Page 2

4. It is found that by letter dated March 8, 1995 the complainant requested that the respondent provide him with a copy of the hearing and meeting tape in docket #FIC 94-127, Lloyd Crossland v. Norwalk Conservation Commission, which hearing and meeting were held on October 25, 1994 and January 25, 1995, respectively. The complainant enclosed two blank tapes with his request and indicated "if additional tapes are necessary please contact me immediately."

5. It is found that the respondent received the March 8, 1995 request on March 13, 1995.

6. It is found that the respondent by letter dated March 14, 1995 provided the complainant with a copy of the portion of the tape which fit on the blank tapes he had provided, and indicated that two additional blank tapes were needed in order to complete the copying: one to complete the copying of the October 25, 1994 hearing, and another to complete the copying of the January 25, 1995 meeting.

7. It is found that the respondent by letter dated March 17, 1995 informed the complainant:

The Commission's practice is to make copies of tapes, free of charge, if the requester sends one blank 90-minute cassette tape for each tape he or she wants copied. If the requester does not provide tapes, the Commission charges $5.00 per tape pursuant to Conn. Gen. Stat. 1-15(b), which amount covers the actual cost to the Commission. The FOI Commission suggests that the requester purchase his or her own cassette tapes because it is generally less expensive.

8. It is found that by letter dated March 20, 1995 the complainant forwarded one blank tape to the respondent to complete "the duplication of the October 25, 1994 hearing", however, he made no mention of copying of the January 25, 1995 meeting tape.

9. In a separate letter, dated March 20, 1995 the complainant filed this appeal, following which the respondent took no further action with respect to providing him with a copy of the January 25, 1995 meeting tape.

10. It is found that the respondent maintains tapes of the January 25, 1995 meeting.

Docket #FIC 95-71 Page 3

11. The Commission takes administrative notice of the record and decisions in Docket #sFIC 95-68, M. Jeffry Spahr v. State of Connecticut, Freedom of Information Commission; FIC 94-127, Lloyd Crossland v. Norwalk Conservation Commission; FIC 94-138, Lloyd Crossland v. Norwalk Conservation Commission; FIC 94-146, Lloyd Crossland v. M. Jeffry Spahr, Norwalk Deputy Corporation Counsel and Lester Bell, Norwalk Conservation Commission; and FIC 94-228, Lloyd Crossland v. Norwalk Conservation Commission and M. Jeffry Spahr, Norwalk Deputy Corporation Counsel.

12. With respect to the allegation, as described in paragraph 2a., above, it is found that the respondent's March 14, 1995 response, as described in paragraph 7, above, was made within four business days of the receipt of the request and therefore, does not violate 1-21i(a), G.S.

13. With respect to the allegations as described in paragraph 2b. and 2c., above, 1-15(a), G.S., provides, "any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record."

14. It is found that the January 25, 1995 meeting tape at issue is a public record within the meaning of 1-18a(d) and 1-19(a), G.S.

15. The respondent contends that it did not communicate further with the complainant upon having received only one blank tape (with the complainant's March 20, 1995 letter, described in paragraph 8, above) believing that since the complainant had already been informed of the respondent's tape copying pactice, and he had chosen to provide but one blank tape, he had therefore abandoned his request for a copy of the January 25, 1995 meeting tape.

16. It is found that the complainant did not abandon his request for a copy of the January 25, 1995 meeting tape and his filing of this appeal is indication of such.

17. It is found that pursuant to the provisions of 1-15, G.S., the respondent was required to provide the complainant with a copy of the January 25, 1995 meeting tape promptly, which it has failed to do.

18. It is therefore concluded that the respondent violated 1-15, G.S., by failing to provide the complainant with a copy of the January 25, 1995 meeting tape.

19. It is found that 1-15(b), G.S., provides for the cost of copying computer stored records and the requested January 25, 1995 meeting tape is not a computer stored record.

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20. Section 1-15(a), G.S., provides in relevant part that:

If any copy provided in accordance with said sections [sections 1-15, 1-18a, 1-19, 1-19b, 1-21, 1-21a, 1-21b, 1-21c to 1-21h, inclusive, 1-21i, 1-21l and 1-21k], requires a transcription,...the fee for such transcription shall not exceed the cost thereof to the public agency.

21. "Transcription" means the act of transcribing, and to transcribe" is to tranfer information from one recording and storing system to another. American Heritage Dictionary, 2nd College Edition (1982).

22. It is found that providing a copy of the January 25, 1995 meeting tape requires a transcription within the meaning of 1-15(a), G.S.

23. It is therefore concluded that the $5.00 per tape charge, which is the cost to the respondent, does not violate 1-15(a), G.S.

24. Both the respondent's and the complainant's requests for the imposition of a civil penalty are denied. It is apparent that a mutual attempt to better communicate, and follow-up by the parties could have avoided this complaint.

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

1. The respondent shall immediately mail a copy of the January 25, 1995 meeting tape to the complainant, without charge.

Approved by Order of the Freedom of Information Commission at its regular meeting of January 24, 1996.

Elizabeth A. Leifert

Acting Clerk of the Commission

Docket #FIC 95-71 Page 5

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:

M. Jeffry Spahr, Esq.

Deputy Corporation Counsel

Norwalk Law Department

P.O. Box 798

Norwalk, CT 06856-0798

State of Connecticut, Freedom of Information Commission

18-20 Trinity Street

Hartford, CT 06105

Elizabeth A. Leifert

Acting Clerk of the Commission