FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on August 30, 2005 [hereinafter “the first hearing”].  At its regular meeting of June 14, 2006, the Commission considered the May 1, 2006, Report of Hearing Officer.  At that time, the Commission remanded the matter to the Hearing Officer for the purpose of taking additional evidence on the issue of whether the copy offered by respondent to the complainant on June 29, 2005, constituted a copy of the “GIS Backup tapes, specifically, orthophotography, ‘arc info coverages’, SQL server databases referenced to GIS data, and all documentation created to support coverages, requested by the complainant by letter dated December 4, 2001.  Such reopened hearing was conducted on June 20, 2006 [hereinafter “the second hearing”].  At both hearings, the complainant and the respondent 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 respondent is a public agency within the meaning of §1-200(1), G.S.

 

2.      The Commission takes administrative notice of the record and final decision

in Docket #FIC2001-546; Stephen Whitaker v. Director, Department of Information Technology, Town of Greenwich (Nov. 13, 2002) [hereinafter “Docket #FIC2001-546”].   

 

3.  The orders in Docket #FIC2001-546, stated:

 

“1.  Forthwith, the respondent shall provide the complainant with copies of the requested records, as described in paragraphs 2 and 3 of the findings, above.   

 

2.  In complying with paragraph 1 of the order, the respondent may redact medical information and social security numbers, if any.” 

 

            4.  Paragraph 2 of the findings in Docket #FIC2001-546, described the requested records as “copies of the GIS Backup tapes, specifically, orthophotography, ‘arc info coverages’, SQL server databases referenced to GIS data, and all documentation created to support coverages” requested by the complainant in a December 4, 2001, letter to the town of Greenwich.

 

            5.  Paragraph 3 of the findings in Docket #FIC2001-546 more fully defined the computer terms used by the complainant in his request as follows:

 

“It is found that the respondent maintains the requested records which are described more fully herein: the orthophotography consists of a complete set of photographic images of the town taken from an aircraft, which are corrected for spatial distortions and lens curvature; the ‘arc info coverages’ consists of the non-exempt data compiled by the town of Greenwich for use in its GIS software, including points, lines and polygons depicting road center lines, building footprints, possibly water and sewer lines, planned fiber optic networks and survey points, which can be overlaid on the orthophotography; the SQL server databases consist of non-exempt data compiled by the town of Greenwich for use in its tax assessment databases, including property ownership, assessed value, prior assessed value, and address; and the support documentation consists of a record of when data was inputted, what source was used, who input the data, how accurate the data is, and how often it is updated.”

 

6.  It is found that the orders in Docket#FIC2001-546 did not specify the medium on which the requested records should be provided.

 

7.      It is found that the respondent appealed the final decision in Docket

#FIC2001-546, and that such appeal ultimately resulted in a June, 2005 Supreme Court decision, upholding such final decision.  Director, Department of Information Technology of the Town of Greenwich v. Freedom of Information Commission, 274 Conn. 179 (2005). 

 

8. It is found that, by e-mail dated June 28, 2005, soon after the Supreme Court issued the decision described in paragraph 7, above, an employee of the respondent e-mailed the complainant, and informed him that a copy of the requested records would be available at the respondent’s office on June 29, 2005. 

 

9.  It is further found that, before receiving the e-mail described in paragraph 8, above, the complainant, by letter dated June 28, 2005, wrote to the respondent and requested that he comply with the Supreme Court decision by providing him with copies of the requested records in DVD or external hard drive format, or, if the respondent was unable to provide the records in that medium, to advise him of the medium and back-up software required to read the media in which the respondent intended to deliver.  It is further found that by such letter, the complainant first requested the orthophotography files in both uncompressed and MRSID versions.  Both parties agree, and it is therefore found, that the complainant’s June 28, 2005 letter also anticipated receiving updated data, since the complainant requested notification of all additions and modifications to the data. 

 

10.  It is further found that, on June 29, 2005, the complainant visited the office of the respondent and was offered a copy of the requested records in tape format, but refused such copy.

 

11.  It is found that, by letter dated July 7, 2005, counsel for the respondent informed counsel for the complainant that the respondent would again provide the records originally requested by the complainant on December 4, 2001, but claimed exemptions with respect to certain of the updated data now being requested by the complainant on June 28, 2005.  It is found that the respondent construed the June 28, 2005 letter as a new request, since for the first time the complainant was requesting both uncompressed and MRSID files, as well as new data.

 

12.  By letter dated and filed on July 8, 2005, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information [hereinafter “FOI”] Act by not complying with the Commission’s orders in docket #FIC 2001-546, because the respondent had offered him only 2001 data, and had claimed exemptions with respect to post 2001 data.  The complainant alleged therein that his June 28, 2005 letter described in paragraph 9, above, was not a new request, just a “renewal” of his 2001 request.  The complainant did not allege that the tape offered to him on June 29, 2005, as described in paragraph 10, above, was an unacceptable medium.  The complainant requested that the Commission enforce its orders in Docket #FIC 2001-546 and impose a civil penalty upon the respondent.

 

13.  At both the first and second hearing in this matter, the complainant insisted that his June 28, 2005 letter was not a new request, and that the respondent’s refusal to comply with his requests therein for updated data in newly specified formats was in violation of the Commission’s orders in Docket #FIC2001-546. 

 

            14.  At both the first and second hearing in this matter, the hearing officer informed the parties that the parameters and scope of the Commission’s jurisdiction in this matter is controlled by the complaint described in paragraph 12, above, and necessarily is limited to whether the respondent complied with the Commission’s orders in Docket #FIC2001-546. 

 

15.  The Commission’s jurisdiction in this matter arises from §1-200(1), G.S., which provides in relevant part:

 

“Any person denied the right to inspect or copy records under section 1-210 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the Freedom of Information Act may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission….” 

 

16.  It is concluded that the right at issue herein is the complainant’s right to compliance with the Commission’s orders in Docket #FIC2001-546, which orders were upheld in Director, supra.  

 

17.  At the second hearing in this matter, the complainant continued to contend that in enforcing its orders, the Commission should order the respondent to release data updated through June 2005, that anything less would render the FOI Act a nullity, and that an outcome only ordering the production of 2001 data, although that was the only data that was at issue in Docket #FIC2001-546, would force the complainant to make continuous requests for information to the respondent, since the data changes rapidly.  At the second hearing, the complainant stated his further belief that he, as well as all people, should be able to require immediate access to the respondent’s computer-stored data. 

 

18.  The Commission notes with astonishment the complainant’s apparent surprise that a final decision, even one upheld by the Supreme Court, does not bring with it automatic rights to view updated versions of the records requested containing new data.  The Commission may only consider allegations that specific records were wrongfully denied on a case-by-case basis.  Only after examining a respondent agency’s application of a claimed exemption to specific records at a hearing can the Commission make a determination as to whether records must be disclosed.  The Commission can find no instance where it ordered the disclosure of records not yet in existence.  Indeed, the Commission did not do so in Docket #FIC2001-546.  

 

19.  On brief, the complainant cites to three federal cases as support for the contentions described in paragraph 17, above.  Public Citizen v. Department of State, 276 F. 3d (D.C. Cir. 2002); McGehee v. CIA, 697 F.2 1095 (D.C. Cir. 1983); and Edmunds Institute v. U.S. Department of the Interior (383 F. Supp. 2d (2005).  Of course, federal law is not controlling in this matter.  Moreover, such cases are easily distinguishable in that each considers whether three separate, federal agencies had presented sufficient evidence under the federal Administrative Procedures Act to adopt a “date of request” standard, rather than a “date of search” standard in promulgating rules for complying with the federal Freedom of Information Act.  Such cases are specific to such federal agencies and merely order such individual agencies to change their standards.  Additionally, such cases do not relate to compliance with administrative agency orders. 

 

20.  At both hearings in this matter, the complainant also contended that the data provided was incomplete even with respect to the originally requested 2001 records.  At the second hearing in this matter, the hearing officer questioned the complainant as to whether he had reviewed the tape offered by the respondent on June 29, 2005.  It is found that the complainant never reviewed such tape and that the respondent subsequently reused such tape, after the complainant refused it. 

 

21.  It is found that, at some point after the first hearing in this matter, the complainant asked for, and received, a second tape of the originally requested records from the respondent.  It is found that, as of the date of the second hearing, the complainant had not viewed the second tape.  Nevertheless, the complainant contends that because the respondent could not state with certainty that specified components or data were present on the tapes offered to him, and because the respondent testified that two components, specifically, complete tax assessment linkages, and digital terrain models, were not contained in the tapes, the tapes must be incomplete.

 

22.  It is found that the originally requested records are voluminous and contain immense amounts of data and varying components.  It is also found that the fact that the respondent could not state with certainty that discrete portions of such voluminous data, as referenced by the complainant, were included in the tapes provided, does not mean that the tapes are incomplete.  With respect to the two components that the respondent testified were not included, it is found that such components were not maintained within the GIS system.  It is also found that the complainant offered no evidence, but only speculation, that such two components must be included. 

 

23.  With respect to the completeness of the documents offered to the complainant, it is found the respondent provided the complainant with all requested records as described in paragraphs 2 and 3 of the findings in Docket #2001-546, which he kept on file, or maintained, as of December 4, 2001, and that he did not redact any data or components therefrom, despite the complainant’s unsupported assertions to the contrary.   

 

24.  Although the orders in Docket#FIC2001-546 did not specify the medium on which the requested records were to be provided, it is found that the complainant’s December 4, 2001 request stated the following:

 

“I agree to accept the public records in the format of tape and back-up software currently used by the GIS/IS management in order to minimize staff time and cost.” Emphasis added.

 

25.  At the second hearing in this matter, the hearing officer questioned the complainant as to whether such statement was meant to limit the medium on which he wanted to receive the requested records.  The complainant first testified in the affirmative, and then in the negative, stating that he should be able to select the medium at this point in time.  

 

26.   It is found that the respondent upgraded the Greenwich tape system in 2004 to a more modern type of tape, and that the two tapes provided to the complainant thus far are in the upgraded tape format.  However, it is also found that, before upgrading to the newer system, the respondent did not retain a copy of the originally requested records for the complainant in the older tape format, which format existed in December 2001.  The complainant maintains that in order to view the data offered to him in the upgraded tape format, he will have to spend a significant amount of money on software and hardware that will enable him to do so. 

 

27.  It is concluded that the respondent’s failure to make and provide the complainant with an exact copy of the originally requested 2001 data in the tape format that existed in December 2001 violated the Commission’s orders in Docket #FIC2001-546.

 

28.  It is found that the respondent no longer has the capability to provide the complainant with the requested records in the tape format that existed in December 2001, that he cannot provide the requested records in DVD format, but that he can provide the requested records in an external hard-drive format.

 

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 complainant with a copy of the originally requested records, meaning those records that the respondent kept on file or maintained as of December 4, 2001, in external hard-drive format, at no charge. 

             

Approved by Order of the Freedom of Information Commission at its regular meeting of June 28, 2006.

 

________________________________

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:

 

Stephen Whitaker

15 East Putnam Avenue, Suite 311

Greenwich, CT 06830 and

c/o M. Dean Montgomery, Esq.

Bentley, Mosher, Babson & Lambert

PO Box 788

321 Railroad Avenue

Greenwich, CT 06836-0788

 

Boris Hutorin, Director,

Department of Information

Technology, Town of

Greenwich

c/o Valerie Maze Keeney, Esq.

Assistant Town Attorney

PO Box 2540

101 Field Point Road

Greenwich, CT 06832-2540

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-332FD/paj/7/5/2006