FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by			FINAL DECISION
Robert Fromer,
		Complainants
	against		Docket #FIC 2002-091
Lee Treadway, Zoning/Wetlands Officer, Town of Ledyard,
		Respondents	November 13, 2002

                                                                                               

            The above-captioned matter was heard as a contested case on September 26, 2002, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint. As a result of the complainant’s withdrawal of the portion of his complaint concerning personnel files, the Mayor, Town of Ledyard has been deleted as a respondent and the caption above has been amended and restated.

 

            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 §1-200(1)(A), G.S.

 

2.  By letters dated January 14 and February 4, 2002, the complainant requested that the respondent provide him with “a colored copy of the following colored maps: 1) flood hazard areas; 2) inland wetlands; 3) public watershed and aquifer protection areas” (hereinafter “the requested maps”, which term does not alone indicate black and white or colored). 

 

3.  By letter dated January 17, 2002, the respondent stated that the town “does not have the technical capability to reproduce, in color, the copies of the specific maps that you requested”. He offered, instead, black and white copies that “contain the same information as the colored originals because the shaded areas of each map are depicted with distinct and separate symbols as noted on the index of each map.” By letter dated February 8, 2002, the respondent also acknowledged the complainant’s willingness to pay the cost of copying the requested maps in color, stated that the complainant had received the black and white copies of the requested maps, and offered the original colored copies of the requested maps for inspection at town offices during business hours.  

 

4.  By letter dated and filed with the Freedom of Information Commission (“Commission”) on March 6, 2002, the complainant appealed to the Commission, alleging that the failure to provide colored copies of the requested maps violated the Freedom of Information Act (“FOIA”). The complainant also made a request, in effect, for civil penalties to be imposed on the respondent. At the hearing, the complainant additionally requested that he be furnished colored copies of the requested maps free of charge, and that the respondent be ordered to post a notice in his office stating that colored copies of colored maps are available for a stated fee.

 

5.  The complainant’s main contention is that, because the visual impact of colored copies is different and superior to the visual impact of black and white copies, the respondent violated the FOIA by failing to retain an independent contractor to make colored copies of the requested maps at the complainant’s expense.     

 

 6.  The respondent’s main contention is that black and white copies of the requested maps containing the same information were provided to the complainant, that the colored maps were available for inspection, and that the right to receive copies does not include the right to receive colored copies.

 

7.  The question of law presented by this contested case is whether the §1-212, G.S., right to receive copies of public records includes the right to receive copies colored in the same manner as the originals on file with the public agency? Or more simply, what is the meaning of the word “copy”?

 

8.  The respondent correctly points out that the plain language of §1-212, G.S., does not require copies to have the same coloring as the originals on file with the public agency. Moreover, neither party nor the Commission has identified a previous Commission decision requiring copies to have the same coloring as originals. Accordingly, the present case would appear to be a case of first impression, and the respondent is also correct that he has not violated any specific order of the Commission.

 

9.  However, it is also the case that §1-211 and 212, G.S., together require the furnishing of computer records “if the agency can reasonably make such copy or have such copy made”, with the fee “not to exceed the cost thereof to the public agency.”

And §1-212(a)(2), G.S., requires the furnishing of a transcription of a public record when requested, again with the cost not to exceed “the cost thereof to the public agency.”  Thus, the FOIA does, in at least some instances, require the furnishing of copies of records other than traditionally sized, black and white paper records, based upon a fee equal to the cost to the agency of copying the non-traditional record.

 

10.  It is found that the Town of Ledyard discarded the specialized machinery for making the requested maps in color during 2001, and that the paper that could be accommodated in regular office computer systems, with scanners and color printers, was too small to make suitable colored copies of the requested maps.

 

11.  It is further found that at least one independent contractor in the New London metropolitan area would make colored copies of the requested maps for $180, which the complainant agreed to pay. The independent contractor was located about twenty minutes by car from the respondent’s offices, and the copying time at the contractors’ facility would, as a practical matter, necessitate both drop-off and pick-up trips.

 

 12.  It is concluded that the requested maps in color have a greater visual impact than the same maps in black and white. If the complainant wished to present his views in a public forum using the requested maps, his presentation would be disadvantaged if he had to rely on black and white copies. Conversely, if town officials, taking a view different from that of the complainant on some issue of land use, were able to make a presentation with the colored maps, the complainant again would be disadvantaged if he had to rely on black and white copies.   

 

13.  It is concluded that, because the means was reasonably available to put the complainant “on a level playing field” and the complainant was willing to pay the cost of producing the color copies, the intent of the FOIA required that the complainant receive copies which were not visually inferior or “second class”. 

 

14.  It is, therefore, concluded, limited to the facts of this case, that the respondents violated §1-212, G.S., by failing to provide the complainant with colored copies of the requested maps.

 

15.  However, it is also concluded that, because this case presents a legal question of first impression, no civil penalty or order requiring a posting in the respondent’s office is warranted.

 

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

 

            1. The respondent shall furnish the complainant with colored copies of the requested maps at a reasonable cost to be paid by the complainant.  

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of November 13, 2002.

 

_______________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

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:

 

Robert Fromer

117 Great Neck Road

Waterford, CT 06385

 

Lee Treadway, Zoning/Wetlands Officer,

Town of Ledyard

c/o Susan M. Phillips, Esq.

Two Union Plaza, Suite 200

PO Box 1591

New London, CT 06320

 

 

________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2002-091/FD/paj/11/18/2002