FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on March 31, 2005, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, contested cases docket #s FIC 2004-517, William C. Abbatematteo v. Department of Law, City of Meriden, and FIC 2004-545, William C. Abbatematteo v. City Manager, City of Meriden; and Department of Law, City of Meriden, were consolidated with the above-captioned case.

           

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.  By letter of complaint dated and filed on October 28, 2004, the complainant appealed to the Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by charging him a fee of $25.00 for five audiocassette tapes (hereinafter “tapes”).

3.  It is found that sometime during October 2004 prior to the filing of the complaint in this matter, the complainant, through his attorney, requested that the respondent’s corporation counsel provide him with a copy of the city of Meriden Board of Ethics meeting tapes for August 2, 11 and 23, 2004.

4.  It is found that shortly thereafter, the corporation counsel checked with the clerk responsible for preparing the requested tapes (“clerk”) and was notified by such clerk that the fee would be $134.00, which amount was conveyed to the complainant’s attorney.

5.  It is found that upon the objection of the complainant, the corporation counsel once again checked with the clerk, who indicated that the fee for the tapes would be $25.00, i.e. five tapes at ninety nine cents each, and approximately $20.00 for the clerk’s time in preparing the tapes at the clerk’s hourly wage rate of $25.08.

6.  Thereafter, the complainant filed this appeal contending that the respondent does not normally charge a fee for copies when requests are made by department heads, and that he, being a department head, was surprised to learn that he would be required to pay a fee for the requested tapes.  The complainant also contended that the tapes are for “official use” and not his “personal use”.

7.  The issue before the Commission is whether the respondent may charge a fee for the tapes and if so, how much.

8.  It is found that the respondent provided the complainant with a copy of the requested tapes for which the complainant paid the $25.00 fee on October 27, 2004.

9.  Section 1-200(5), G.S., in relevant part, defines public records as:

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.

 

10.  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 … (3) receive a copy of such records in accordance with section 1-212….

 

11.  It is concluded that the requested tapes are public records within the meaning §§1-200(5) and 1-210(a), G.S.

12.  Section 1-212, G.S., does not set forth the fee that a public agency may charge for a copy of a tape.

13.  However, this Commission has addressed the issue previously.  See e.g. contested cases docket # FIC 2002-018, Rick Smolicz and Connecticut Independent Police Union Local #2 v. Chief, Police Department, Town of Naugatuck; and Police Commission, Town of Naugatuck, (June 12, 2002) (hereinafter “FIC 2002-018”), and FIC 1997-416, James J. Smith v. Town Clerk, Town of Union (May 27, 1998) (hereinafter “FIC 1997-416”).  

 

14.  In FIC 2002-018, the Commission noted that:

 

12.  With respect to the respondents’ attempt to charge complainant Smolicz a fee equivalent to time and a half the hourly wage rate of Lieutenant Bozinski to obtain a copy of the audiotapes, it is found that the respondents failed to provide any evidence to support the need to charge an hourly wage rate for making a copy of the audiotapes at issue.  The Commission takes notice of the fact that typically when copying an audiotape an individual simply inserts the original tape in a machine along with a blank tape and hits a button to start the copying.  The machine performs the copying.  At the end of the copying, the individual hits a stop button and removes the tape.  If both sides of the blank tape are being copied, the individual making the copy will flip the tape to the blank side as required.

 

13.  It is found that the fee of time and a half the hourly wage rate of Lieutenant Bozinski to listen to the tapes or to obtain a copy of the tapes is an unreasonable and unnecessary barrier to complainant Smolicz’s right to listen to and to obtain a copy of the audiotapes. 

 15.  In FIC 2002-018, the Commission ordered the respondents to permit complainant Smolicz to obtain a copy of the audiotapes at a fee equivalent to the actual cost of the blank audiotapes, or without charge, if complainant Smolicz provided the respondents with blank audiotapes.

16.   In FIC 1997-416 the Commission found that:

19.  In keeping with the language of §1-15, G.S., [now §1-212, G.S.] and its intent, it is further concluded 

that the cost for a copy of a non-photocopy public record may not exceed the cost thereof to the public agency.

17.  The Commission ordered the respondent in FIC 1997-416 to “ provide the complainant with a copy of the requested audio tape recordings without any charge except for the cost of the audio tape itself”.

18.  In this case, as in FIC 2002-018, the Commission takes administrative notice of the fact that the process of copying a tape is quite simple.  It is also found that the respondent failed to provide any evidence to demonstrate or justify a need to charge an hourly rate for the requested tapes.

19.  It is therefore concluded that the respondent violated the FOI Act by charging the complainant a fee of $25.00 which was not reasonable.

20.  It is further concluded that nothing in the FOI Act supports the complainant’s contention that as a department head he is entitled to obtain copies of the tapes without paying a fee.  

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 refund the complainant an amount of $20.00. 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 28, 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:

 

William C. Abbatematteo

14 Mattabassett Drive

Meriden, CT 06450

 

Department of Law,

City of Meriden 

c/o Kenneth S. Weinstock, Esq.

Pepe & Hazard LLP

Goodwin Square, 225 Asylum Street

Hartford, CT 06103-4302

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-494FD/paj/10/6/2005