FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
FINAL DECISION
Docket #FIC 1996-354
June 25, 1997
In the Matter of a Complaint by Taconic Data Corporation,
Complainant
against
Town Clerk, Town of Ledyard, Respondent
The above-captioned matter was heard as a contested case on May 6 and 12, 1997, at which times the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. Docket #s FIC1996-330, Taconic Data Corporation v. Town Clerk, Town of Groton, FIC 1996-341, Taconic Data Corporation v. Town Clerk, Town of Suffield, FIC1996-558, Taconic Data Corporation v. Town Clerk, Town of Bozrah, FIC1996-561, Taconic Data Corporation v. Town Clerk, Town of Griswold, FIC1996-563, Taconic Data Corporation v. Town Clerk, Town of Stonington, and FIC1996-564, Taconic Data Corporation v. Town Clerk, Town of Lisbon, were 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. It is found that by letter dated June 6, 1996, the complainant requested that the respondent provide it with an electronic copy of the grantor/grantee index for the period 1985 through May 1996, inclusive, preferably on 3.5 inch diskette or 9 track tape in ASCII fixed length format ("requested record").
3. It is found that the respondent agreed to provide the complainant with the requested record at a fee of $1.00 per page pursuant to § 7-34a(a), G.S.
4. The complainant appealed to the Commission by letter dated July 3, 1996 and filed on July 9, 1996, alleging that the respondent violated the Freedom of Information ("FOI") Act by denying it a copy of the requested records. The complainant also requested that the Commission impose civil penalties against the respondent.
5. It is found that by letter dated March 14, 1997, the complainant requested that the respondent "not send us any new data at this time". It is found that such request was
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not a retraction by the complainant of its record request now at issue in this appeal, and as described in paragraph 2 of the findings, above.
6. It is found that COTT Systems ("COTT"), an Ohio based company, contracts with many Connecticut towns, and provides land records computer indexing services to the town clerks of such towns, including the respondent.
7. It is found that COTT Systems ("COTT"), an Ohio based company, contracts with many Connecticut towns, and provides land records computer indexing services to the town clerks of such towns, including the respondent.
8. Section 1-19a(b), G.S., provides:
Except as otherwise provided by state statute, no public agency shall enter into a contract with, or otherwise obligate itself to, any person if such contract or obligation impairs the right of the public under this chapter to inspect or copy the agency's nonexempt public records existing on-line in, or stored on a device or medium used in connection with, a computer system owned, leased or otherwise used by the agency in the course of its governmental functions.
9. At the hearing on this matter, and notwithstanding the respondent’s offer to provide the complainant with the requested record upon payment of the fee provided under § 7-34a(a), G.S., the respondent contended that a portion of the requested record was exempt from disclosure under § 1-19(b)(1), G.S., as a preliminary draft, because such portion had not yet been corrected by COTT or audited.
10. It is found that in light of the respondent’s offer to provide the complainant with the requested records, the respondent has waived this claim of exemption and, in any event, the respondent failed to prove the applicability of such exemption in this case.
11. It is found that the requested record constitutes nonexempt public records of the respondent within the meaning of § 1-19a(b), G.S.
12. It is found that the information contained in the requested record is maintained in paper format by the respondent and in electronic format by COTT.
13. It is concluded that the requested record is a public record within the meaning of § § 1-18a(d), 1-19(a) and 1-19a, G.S., and that no contract between the respondent and COTT can impair the complainant’s right to copy the respondent’s non-exempt public records
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existing on-line in, or stored on a device or medium used by the respondent in the course of its governmental functions.
14. The respondent also contends that the requested record is not subject to the copying fee set forth in § 1-15(b), G.S., by virtue of § 1-19a(a), G.S., but rather it is subject to the copying fee set forth in § 7-34a(a), G.S.
15. Section 1-19a(a), G.S., provides in relevant part that:
Except as otherwise provided by state statute, the cost for providing a copy of such [non-exempt] data [maintained in a computer storage system] shall be in accordance with the provisions of section 1-15.
16. Section 7-34a(a), G.S., in turn, provides in relevant part that:
Town clerks shall receive, for making a copy of any document either recorded or filed in their offices, one dollar for each page or fractional part thereof, as the case may be.
17. It is found that the requested record is an electronic copy of documents recorded or filed in the respondent’s office within the meaning of § 7-34a(a), G.S.
18. It is therefore, concluded that § 7-34a(a), G.S., by virtue of § 1-19a(a), G.S., is a state statute that supersedes the copying fee provisions set forth at § 1-15, G.S., and accordingly the respondent may charge a per page copying fee for the requested record.
19. It is further concluded that the respondent did not violate § § 1-15, 1-19(a) and 1-19a(a), G.S., when she failed to provide the complainant with a copy of the requested record at the copying fee set forth at § 1-15(b), G.S.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The complaint is hereby dismissed.
2. Nothing in this opinion shall be construed as suggesting that the Commission believes that the copying fee provided at § 7-34a(a), G.S., is an appropriate fee for a copy of land records in an electronic form. Given the nature of the requested record,
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and the circumstances surrounding this case, the Commission believes that this question is one that the legislature might want to consider.
Approved by Order of the Freedom of Information Commission at its regular meeting of June 25, 1997.
__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
Docket #FIC 1996-354 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:
Taconic Data Corporation
c/o Stuart Bear, Esq.
Zeldes, Needle & Cooper
1000 Lafayette Boulevard
PO Box 1740
Bridgeport, CT 06601-1740
Town Clerk, Town of Ledyard
c/o Thomas B. Wilson, Esq.
Raymond L. Baribeault, Jr., Esq.
Suisman, Shapiro, Wool, Brennan & Gray, PC
2 Union Plaza
PO Box 1591
New London, CT 06320
__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
FIC 1996-354/FD/eal/06301997