FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on May 24, 2005, at which time the complainant and the respondents appeared, stipulated to certain facts 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 respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.  By letter of complaint filed November 4, 2004, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by (a) denying her request for a copy, in electronic form, of the town budget; and (b) denying her request for copies, in electronic form, of minutes of the meetings of the respondents Board of Selectmen and Board of Finance.   The complainant requested the imposition of civil penalties against the individually named respondents.

 

3.  It is found that in August, 2004, the complainant requested from the respondent Avelis in her capacity as interim Town Manger, “[a]ll documents of the Hebron Town Budget” for the years 2002-2003, 2003-2004 and 2004-2005.  The complainant requested that the records be provided electronically.  Specifically, the complainant sought that the records be provided in Microsoft Word and Excel format, as attachments to emails.

 

4.  It is found that the respondent Avelis replied by email sent August 13, 2004 that the town did not have all documents for the town budgets in electronic form, and referred the complainant to the complete budget documents that are available at the Town Manager’s office and the library.

 

5.  It is found that the complainant nonetheless desired the budget documents in electronic form, and therefore requested “the budget documents that are available electronically for the years specified.”

 

6.  It is found that the respondent Avelis replied by email sent October 4, 2004, that she could not provide an electronic copy of any of the budgets requested because they were not kept “in a static form,” and that the system used to compile the budget “continuously changes the data.”

 

7.  It is found that by email sent on or about October 4, 2004, the complainant requested from the Town of Hebron’s Finance Director “[a]ll documents of the Hebron Town Budget” for the years 2002-2003, 2003-2004 and 2004-2005.  The complainant requested that the records be provided electronically.

 

8.  It is found that by email sent October 5, 2004, the Finance Director responded that the “Budget Document” was not available electronically, and that hard copies were available at the library.

 

9.  It is found that by email sent on October 19, 2004, the complainant again requested that the respondent Avelis provide an electronic version of  “whatever version of the current year’s budget that you presently have stored.  This budget does not have to match the hard copy of the budget that was printed this year.”

 

10.  It is found that the respondents did not provide the requested budget documents in electronic form to the complainant, but rather referred her once again on October 20, 2004 to the printed budget available in the town office building or the town library.

 

11.  Section 1-200(5), G.S., provides:

 

“Public records or files” means 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.

 

12.  Section 1-210(a), G.S., 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 … receive a copy of such records in accordance with section 1-212.  … Each such agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located or of the Secretary of the State, as the case may be. 

 

13.  Section 1-211(a), G.S., provides in relevant part:

 

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. 

 

14.  The respondents maintain that the complainant requested the town budget, and that the budget is the compilation of paper records maintained, among other places, in the town manager’s office and the town library.  The respondents further maintain that this final and complete version of the budget is not stored electronically.

 

15.  It is found, however, that the respondents initially prepare the budget largely, if not entirely, in electronic form, that revisions to drafts of the budget are made electronically, and that the printed budget documents available in the town manager’s office were printed from electronic records.

 

16.  It is also found that the respondents have at various times circulated among themselves electronic copies of budget documents, including documents in Microsoft Excel and Word formats attached to emails, during the preparation of the budget.

 

17.  The respondents do not contend that they lack the capability, or are unwilling, to deliver electronic versions of records by attachments to email.  Rather, they contend that the complainant requested “the budget,” and that “the budget” is, and only is, the printed documents available in the town manager’s office and the library.

 

18.  It is found, however, that the complainant requested “the budget documents that are available electronically for the years specified” and “whatever version of the current year’s budget that you presently have [electronically] stored,” and that such requests are reasonably understood to be for whatever budget documents the respondents maintain in electronic form.

 

19.  It is also found that although the respondents still maintain electronic versions of some of the requested budget documents, they have not maintained their electronic records of the budget in an organized form, and would have difficulty locating and identifying documents pertaining to the 2004-2005 budget.  Some of the original documents have been saved, and others have been overwritten or otherwise altered.

 

20.  The respondents essentially contend that they should not have to provide electronic copies of budget documents, when the entire budget is available in printed form in the town manager’s office and the public library.

 

21.  The respondents also contend that they don’t know which electronic records pertaining to the budget they have saved, which they have overwritten, or where those electronic records are located within their computer system.

 

22.  It is found that although the respondents make the 2005-2006 budget materials, including the town manager’s proposed budget, available on the town’s web site, they have not done so for the 2002-2003, 2003-2004 and 2004-2005 budgets.

 

23.  It is found nonetheless that the respondents maintain in a computer storage system, in however disorganized a fashion, electronic versions of some, if not all, of the budget documents for 2002-2003, 2003-2004 and 2004-2005 that appear in the printed budget available in the Town Manager’s office and library.

 

24.  It is concluded that these electronic versions of budget documents are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

 

25.  It is further found that the electronic versions of the budget documents that are printed and available for public inspection comprise nonexempt data within the meaning of §1-211(a), G.S.

 

26.  It is concluded therefore that the respondents violated §1-211(a), G.S., by failing to provide copies of any electronic versions of budget documents.

 

27.  With respect to the complainant’s allegation that she was not provided minutes in electronic form, it is found that the complainant requested in August 2004 from the respondents all Board of Finance minutes for the months of June and July 2004, and all Board of Selectmen minutes for the same months. 

 

28.  It is found that the complainant and the respondents corresponded with each other by email over this issue, and that the respondents denied the complainant’s request on November 1, 2004, on the grounds that the town does not retain minutes in electronic form.

 

29.  It is found that the minutes for the Board of Finance and Board of Selectmen are generally prepared by two part-time board clerks who record the minutes by hand at the meetings, transcribe their notes at home on personal computers or typewriters, and bring a hard copy to the town clerk and town manager to file.

 

30.  It is found that for a four-month period, from approximately January through April 2004, electronic versions of draft minutes were circulated by email to members of the Board of Finance and Board of Selectmen.  It is also found that this process was discontinued.

 

31.  It is found that the respondents do not maintain in the town’s computer storage system electronic versions of the requested minutes for the months of June and July, 2004. 

 

32.  However, it is also found by reasonable inference from the facts on the record that the part-time board clerks who prepared the requested minutes retain electronic versions of those minutes for the months of June and July, 2004.

 

33.  In Docket #FIC 2004-323, Mark Weeks v. First Selectman, Town of Canterbury, the Commission advised the respondent that “regardless of whether e-mails relating to the conduct of the public’s business are received at town hall or at his home, he should adopt the practice of printing and retaining all town related e-mails.”  The complainant in that case had not requested electronic copies.

 

34.  It is found, however, under the facts and circumstances of this case, that the electronic version of the minutes prepared at home by the two part-time board clerks on their home computers were not prepared, owned, used, received or retained by the respondents and therefore are not public records within the meaning of § 1-200(4), G.S.  See Docket #FIC 1996-518, Jeffrey W. Burkitt and Ansonia Republican Town Committee  against Board of Aldermen, Town of Ansonia; Docket #FIC FIC 92-73, William L. Kuusela v. Daniel W. Teper, Lisbon First Selectman (Tape recordings of public meetings made by recording secretaries on their personal machines and used to prepare minutes held not to be a public records within the meaning of §1-18a(d), G.S. [now §1-200(4), G.S.]

 

35.  It is concluded that the respondents did not violate §1-211(a), G.S., by failing to provide electronic copies of the requested minutes.

 

36.  The Commission in its discretion declines to consider the imposition of civil penalties against the respondents..

 

 

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

 

            1.  The respondents shall forthwith provide the complainant, as email attachments,  copies in electronic form of any Microsoft Word or Excel records that the respondents currently maintain in their computer storage system, that are also contained in the printed versions of the town budget for the years 2002-2003, 2003-2004, and 2004 and 2005.  Specifically, the respondents shall provide copies of any electronic records from which the hard copy versions of the town budgets were printed.  If either the data in, or the form of, the electronic records has been changed since the records were originally printed, the respondents shall provide the current version of the record that contains the new data.

 

2.  Henceforth the respondents shall strictly comply with §1-211(a), G.S.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 26, 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:

 

Faith Dorman

86 Stonehouse Road

Amston, CT 06231

 

Victoria Avelis, Town Manager,

Town of Hebron; Victoria Avelis,

Chairman, Board of Selectmen,

Town of Hebron; Bill Cox, Karen Strid,

Catherine Marx and Scott Kaufman,

as members, Board of Selectmen,

Town of Hebron; Matt Daly, Brian Lessard,

Mark Stuart and Betsy Foote-Osborne,

as members, Board of Finance,

Town of Hebron; Board of Selectmen,

Town of Hebron; and Board of Finance,

Town of Hebron

c/o Donald R. Holtman, Esq.

Katz & Seligman

130 Washington Street

Hartford, CT 06106

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-504FD/paj/10/28/2005