FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

            The above-captioned matter was heard as a contested case on September 18, 2003, at which time the complainants and the respondent appeared and presented testimony, exhibits and argument on the complaint.  

           

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), G.S.

 

            2.  It is found that by letter dated April 24, 2003, the complainants requested that the respondent provide them with “copies of all e-mails concerning information technology between yourself, LeRoy Hay, Randall Backus and Paul Picard between March 1^st through April 21^st” (hereinafter “requested records”).

 

            3.  It is found that by letter dated April 30, 2003, the respondent denied the request indicating, in relevant part, that “I am denying your request for e-mails at the present time because the specific legal issue of whether e-mail communications are ‘public records’ under the Freedom of Information Act is the subject of a Declaratory Ruling Proceeding announced by the Freedom of Information Commission….The declaratory ruling has not yet been issued.  Accordingly, the legal status of emails under the Freedom of Information Act has not yet been established.  In responding to your request I have not made any determination of whether all of the emails in question otherwise qualify as ‘public records’, i.e. whether they relate to ‘the conduct of the public business.’”

 

            4.  It is concluded that the April 30, 2003 letter was in effect a denial of the complainants’ request.

 

            5.  Thereafter, by letter of complaint, dated May 5, 2003 and filed with the Commission on May 6, 2003, the complainants appealed, alleging that the respondent violated the Freedom of Information Act by denying them copies of the requested records.

 

6.  Section 1-200(5) defines “public records or files” to mean:

 

… any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

            7.  Section 1-210(a), G.S., further provides in relevant part:

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212.  Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. 

 

8.      Section 1-211(a), G.S., further provides:

 

Any public agency which maintains public records in a computer storage system shall provide, to any person making a request pursuant to the Freedom of Information Act, a copy of any nonexempt data contained in such records, properly identified, on paper, disk, tape or any other electronic storage device or medium requested by the person, if the agency can reasonably make such copy or have such copy made.  Except as otherwise provided by state statute, the cost for providing a copy of such data shall be in accordance with the provisions of section 1-212.

 

            9.  It is found that the respondent has e-mails that are responsive to the complainants’ request for “e-mails concerning information technology between yourself, LeRoy Hay, Randall Backus and Paul Picard between March 1^st through April 21”. [1]

 

10.  The respondent does not contend that the requested e-mails are not public records.  The respondent’s sole position is that this Commission has not yet issued a Declaratory Ruling concerning e-mail disclosure to the public.

 

11.  It is found that this Commission issued notice of its intention to issue a Declaratory Ruling concerning e-mail communications.  However, such Ruling has not been issued as of the date of the hearing in this matter, and therefore, in its absence, this Commission must rely on the existing body of law in resolving the issue of whether the e-mails requested and maintained by the respondent are “public records” and are disclosable to the complainants.

 

12.  The issue of whether e-mails are “public records” has been brought before the Commission previously.  See e.g. docket #FIC 1999-557 (August 9, 2000), Connecticut Post Limited Partnership v. Legislative and Administrative Advisor 2, State of Connecticut, Department of Environmental Protection, Office of Legal Counsel; and State of Connecticut, Department of Environmental Protection, Office of Legal Counsel, Findings 5a, 5e, and 9; FIC 2001-498, (September 25, 2002) Antony Dugdale v. Bill O’Brien, Tax Assessor, City of New Haven; David Ambrose, Director of Operations, Office of the Assessor, City of New Haven; and Wallace Inkpen, Office of the Assessor, City of New Haven, Findings 9 and 11; FIC 2002-048, (September 25, 2002) Antony Dugdale v. Bill O’Brien, Tax Assessor, City of New Haven; and Carl Ioveino, Manager of Information Office Technology, Information Technology Department, City of New Haven, Findings 9 and 11;  FIC 2000-427 (December 13, 2000) Mildred  R. Hornblower v. Superintendent of Schools, New Canaan Public Schools, Finding 20, and Paragraph 1 of the Order;  FIC 2000-242, (November 29, 2000) Donal C. Collimore v. Department of Public Works, City Of Bridgeport; and Office of the City Attorney, City of Bridgeport, Findings 8, 9 and 10; FIC 2001-309 (May 22, 2002) Community Health Center, Inc. v. Commissioner, State of Connecticut, Department of Social Services; and State of Connecticut, Department of Social Services, Findings 2 and 7; FIC 2001-527 (March 13, 2002) Robert Fromer v. James Heckman, Legislative Liaison and Freedom of Information Act Coordinator, State of Connecticut, Department of Economic and Community Development; and State of Connecticut, Department of Economic and Community Development, Findings 2 and 11. 

 

            13.  At the hearing in this matter, the respondent did not offer any evidence or legal argument to suggest that the e-mails at issue do not constitute “public records” or that they are exempt from disclosure pursuant to federal law or state statute.

 

14.  It is concluded that the respondent failed to prove that the e-mails at issue are a) not “public records” or b) are “public records”, but are otherwise exempt from public disclosure.

 

            15.  Consequently, it is concluded that the e-mails at issue are “public records” within the definition and meaning of §§1-200(5) and 1-210(a), G.S.

 

16.  It is further concluded that while the respondent was not acting in bad faith in this case, the respondent violated §§1-200(5) and 1-210(a), G.S., by failing to provide the complainants with a copy of the e-mails at issue.

 

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

 

1.  Forthwith, the respondent shall provide the complainants with a copy of the requested e-mails, as described more fully in paragraph 2 of the findings, above.

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 22, 2003.

 

 

___________________________________

Ann B. Gimmartino

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:

 

Evan Goodenow and

The Record Journal

11 Crown Street

Meriden, CT  06450

 

Superintendent,

Wallingford Public Schools

c/o Peter A. Janus, Esq.

Siegel, O’Connor, Zangari,

O’Donnell & Beck, P.C.

150 Trumbull Street

Hartford, CT  06103

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

FIC/2003-170/FD/abg/10/23/2003