FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on August 10, 2004, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, this matter was consolidated with Docket #FIC 2004-194, Donald Kreutzer v. Director, FOI Office, State of Connecticut, University of Connecticut Health Center.

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 the University of Connecticut Health Center employs the complainant.

 

3.  It is found that the respondent sent a letter dated March 16, 2004, to the complainant updating the status of records he requested in a letter dated December 24, 2003.

 

The letter states:

 

This is an update on the Health Center’s progress in addressing your FOI request that was clarified in your letter to me dated December 24, 2003 and which I received on January 6, 2004.  I recognize that this response will not fully address your entire FOI request, and I want to assure you that the Health Center continues to work on your request. 

 

In our discussions and previous communications you have made it clear that you do not wish copies of the information but would rather prefer access to such documents and emails.  As I have previously described to you, UCHC does not have central document storage.  Therefore, the documents you request access to are located at many different sites.  I am providing you the name of a contact person for each such site so you can schedule a mutually agreeable date and time for review of these documents.  You can indicate at this time which documents you want copies of and we will charge you 25 cents per page for these copies.

 

Please note that you will be reviewing original records.  The Health Center has an obligation to ensure such records are not inadvertently altered, deleted or simply misfiled to different folders/locations.  In addition, many of the documents represent emails that you will be accessing from a Health Center computer and we must ensure that you use such computers only to view the requested materials and not inadvertently access other information and/or utilize other functions/programs available on these computers.

 

Among the documents you have requested access to, there may be those that in part or in total may contain information protected by HIPAA, attorney-client privilege, or other information protected by the FOI act.  Therefore, as you work through these documents and emails, a staff member will read each document first to ensure it does not contain protected information.  In the eventuality that it does contain such information, we are willing to print out that document and redact such information before then giving you an opportunity to review the document.

 

            The letter listed the documents that were available, including certain documents that were available on a disk.

 

            4.  It is found that, by memorandum dated April 27, 2004, the complainant responded to the letter described in paragraph 3, above, stating in relevant part:

 

In response to your March 16, 2004 letter related to my FOI request:

 

1.      Related to hard copy documents (both redacted and non redacted) I wish to scan those documents, which is allowed by FOI procedures.

 

2.      Related to electronic documents and information I would like to have it confirmed that these electronic documents represent both documents located on computers as well as any other electronic storage media such as removal media, CDs, DVDs, hard drives, etc.

 

3.      I would like to have all electronic documents and information be provided to me on disk.  Which is allowed by the FOI.  I would be happy to provide as many CDs as are required and distribute them to whomever you designate.

 

4.      Related to documents that contain material that you deem as protected by various laws please redact the documents and provide them to me for review and scanning.  For any documents that are completely redacted or not printed out I would request that the documents be identified so that disputes related to these documents can be taken to the FOI commission.

 

5.      Related to Dr. Albertsens calendar photo copies of the pages related to Dr. Ferrer is fine.

 

6.      I wish to know when I can expect the documents and information that I listed as first priority in my 12/24/2003 FOI request.

 

7.      To help speed up of emails or documents in my first priority listing I request that administration should include, but not be limited to, Drs. Deckers, Berlin, Koeppen, Maxwell Robinson (dental dean), Goldberg, Wetstone, all academic Dept. Heads, as well as Dave Gillon, Bob Tryon, all administrative Dept. Heads including facilities, Ken Landorf, Tom Iezzie, Karen Duffy Wallace.  This list of administrators should help to focus [my] requests for information.  I can provide additional names if you feel it will help speed the process.

 

5.  It is also found that the complainant appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with the request described in paragraph 4, above, by complaint dated and filed on May 10, 2004.

 

            6.  It is further found that the respondent replied to the complainant’s letter described in paragraph 4, above, in a letter dated May 10, 2004.  The letter states in pertinent part (errors in the text of the letter are not noted):

 

“This letter is in response to your correspondence to me dated April 27, 2004.  Following your bullets:

 

1.      I agree that the FOI act allows you to scan documents.  Please note the act allows “the use of a hand-held scanner.”  Further “hand held scanner means a battery operated electronic scanning device the use of which (1) leaves no mark or impression on the public record, and (2) does not unreasonably interfere with the operation of the public agency.”

 

2.      The electronic documents you request from each source will include to best of our knowledge all that we have.  With that said, please understand that given the size of your request, the decentralization of our data storage, and the number of people responding to this request, documents might be inadvertently missed.  If and when we learn of additional files we will let you know.

 

3.      We will provide such documents on CDs.

 

4.      Agreed.

 

5.      We will make these copies soon.

 

6.      I am more than confused about your inconsistent sense of urgency related to this extensive request.  You have failed to respond to my communications several times, once for almost 5 months and the last time for 6 weeks.  In addition, you have yet to schedule a time to access hard copy documents that I made you aware were available more than 6 weeks ago.

 

This behavior makes me continue to question whether you are exercising good faith through this information request or if, as you said to me before, this is simply a tool to punish administration for decisions you don’t like.  Nevertheless, we are attempting to provide you the information you requested in due course.

 

7.      Thank you for clarifying this list.

 

As always, please let me know if you have any questions.”

 

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

 

[e]xcept 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…. 

 

8.      Section 1-212, G.S., provides in relevant part that:

 

(a)“[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.  The fee for any copy provided in accordance with the Freedom of Information Act:

 

(1)  By an executive, administrative or legislative office of the state, a state agency or a department, institution, bureau, board, commission, authority or official of the state, including a committee of, or created by, such an office, agency, department, institution, bureau, board, commission, authority or official, and also including any judicial office, official or body or committee thereof but only in respect to its or their administrative functions, shall not exceed twenty-five cents per page…

 

(c) A public agency may require the prepayment of any fee required or permitted under the Freedom of Information Act if such fee is estimated to be ten dollars or more.”

 

9.  It is found that the requested records, to the extent such records exist, are public records within the meaning of §§1-210(a) and 1-212(a), G.S.  It is further found that the requested records number in the thousands, if not tens of thousands, of pages of documents.

 

            10.  It is found that at its regular meeting of June 23, 2004, the Commission adopted its Final Decision in contested case #FIC 2003-243, Donald Kreutzer, v. Director, Health Affairs Policy Planning, State of Connecticut, University of Connecticut Health Center,; and State of Connecticut, University of Connecticut Health Center (hereinafter FIC 2003-243.).

11.  The Commission takes administrative notice of the record and decision in FIC 2003-243, which dealt with essentially the same records requests as the current request.

12.  Paragraphs 9, 10, 11, 12, 13, and 14 of the final decision in FIC 2003-243, state:

9.  It is found that, in the past, the complainant has made similar requests for voluminous records from the respondents and, on at least one such occasion, the complainant did not follow up on such a request after the respondents spent considerable time and resources compiling records for him.   It is also found that the respondents were within their rights to await word from the complainant as to whether he wished copies of the requested records described in paragraph 3, above, since the respondents could have assessed a copying fee before complying with such request, pursuant to §1-212(c), G.S. 

 

10.  It is found that the complainant did not further contact the respondent regarding the request described in paragraph 3, above, and the respondents’ reply, as described in paragraph 4, above, until November 10, 2003. 

 

11.  It is found that, by letter dated November 11, 2003, the respondents informed the complainant that they would be happy to meet with him to develop a schedule and methodology of processing the complainant’s request.  It is further found that such meeting took place on November 13, 2003.

 

12.  It is found that, by letter dated November 14, 2003, the respondents set forth their understanding of status of the complainant’s request after the meeting described in paragraph 11, above.  It is further found that the complainant responded to such letter on December 24, 2003.  

 

13.  It is found that at all times pertinent to this matter the respondents have been ready and willing to comply with the request described in paragraph 3, above, and that any delay in compliance has resulted from the complainant’s failure to communicate with the respondents in a timely manner.  It is found that, at the time of the hearing in this matter, the respondents had provided access to many requested records to the complainant and were continuing to assemble records for his inspection in a timely manner. 

 

14.  Based on the facts and circumstances of this case, it is found that the respondents did not fail to comply with the request described in paragraph 3, above, as alleged in the complaint.  It is concluded that the respondents did not violate §§1-210(a) and 1-212(a), G.S., in this matter.

 

13.  It is found that the complainant failed to make any effort to obtain many of the voluminous documents that were made available to him after the he received the letter of March 16, 2004, described in paragraph 3, above.

 

14.  It is found that the complainant did not further contact the respondent regarding the request described in paragraph 4, above, until April 27, 2004.  It is further found that the complainant changed his request for many of the documents in an electronic format.

 

15.  It is found that at all times pertinent to this matter the respondent has been ready and willing to comply with the request described in paragraph 4, above, and that any delay in compliance has resulted from the complainant’s failure to communicate with the respondent in a timely manner.  It is found that, at the time of the hearing in this matter, the respondent had provided access to thousands of pages of documents requested by complainant, including electronic documents, and was continuing to assemble records for his inspection in a timely manner. 

 

16.  Based on the facts and circumstances of this case, it is found that the respondent did not fail to comply with the request described in paragraph 4, above, as alleged in the complaint.  It is concluded that the respondent did not violate §§1-210(a) and 1-212(a), G.S., in this matter.

 

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.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 9, 2005.

 

________________________________

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:

 

Donald Kreutzer, Director,

Center for Molecular Tissue Engineering,

University of Connecticut School of Medicine

263 Farmington Avenue

Farmington, CT 06032-3105

 

Director, FOI Office, State of Connecticut,

University of Connecticut Health Center

c/o William N. Kleinman, Esq.

Assistant Attorney General

University of Connecticut Health Center

263 Farmington Avenue

Farmington, CT 06030-3803 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-221FD/paj/3/10/2005