FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
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Hilda Munoz and the Hartford |
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| Complainants | |||
| against | Docket #FIC 2005-442 | ||
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Behavioral Development and Educational Services, LLC, |
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| Respondent | July 26, 2006 | ||
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 with the Commission on September 13, 2005, the complainants appealed, alleging that the respondent violated the Freedom of Information (“FOI”) Act by:
i) billing the complainants $125.00 for a computer disc containing a list of the city’s delinquent taxpayers, in violation of §1-212, G.S.; and
ii) insisting that the fee be paid in advance using cash, a certified check or a money order.
The complainants request a full refund.
3. It is found that during late August/early September 2005, the complainants requested that the respondent provide them with a list of the city of New Britain’s delinquent taxpayers.
4. It is found that the respondent informed the complainants that the cost of such a list, which would be provided on computer discs, was $125.00, and that such fee was required to be prepaid by cash, certified check or money order.
5. It is found that on September 8, 2005, the complainants requested that the respondent provide them with a breakdown of the $125.00 charge. Specifically, the complainants wanted to know how the respondent arrived at that fee.
6. It is found that on September 9, 2005, the complainants picked up two discs containing the requested delinquent taxpayer list, from the respondent and paid him $125.00 cash. Thereafter, the complainants filed this appeal.
7. 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 (1) inspect such records promptly during regular office or business hours …or (3) receive a copy of such records in accordance with section 1-212.
8. Section 1-211(a), G.S., 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.
(b) The fee for any copy provided in accordance with subsection (a) of section 1-211 shall not exceed the cost thereof to the public agency. In determining such costs for a copy, other than for a printout which exists at the time that the agency responds to the request for such copy, an agency may include only:
(1) An amount equal to the hourly salary attributed to all agency employees engaged in providing the requested computer-stored public record, including their time performing the formatting or programming functions necessary to provide the copy as requested, but not including search or retrieval costs except as provided in subdivision (4) of this subsection;
(2) An amount equal to the cost to the agency of engaging an outside professional electronic copying service to provide such copying services, if such service is necessary to provide the copying as requested;
(3) The actual cost of the storage devices or media provided to the person making the request in complying with such request; and
(4) The computer time charges incurred by the agency in providing the requested computer-stored public record where another agency or contractor provides the agency with computer storage and retrieval services.…[Emphasis added].
(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.
10. The respondent contends that he was not obligated to provide the complainants with the requested delinquent taxpayer list on computer discs. He contends further that §1-212(b), G.S., permitted him to charge the hourly salary of the agency employee engaged in providing the discs to the complainants, and that such hourly salary accounts for the $125.00 fee he charged the complainants.
11. It is found that the delinquent taxpayer list provided to the complainants constitutes nonexempt data and nonexempt public records, within the meaning of §§1-210(a) and 1-211(a), G.S.
12. It is also found that the respondent could reasonably provide such delinquent taxpayer list on computer discs to the complainants.
13. Consequently, it is concluded that the respondent was required to provide the delinquent taxpayer list on computer discs to the complainants, pursuant to §§1-210(a) and 1-211(a), G.S.
14. It is also found that the respondent failed to prove that he performed “programming or formatting functions”, within the meaning of §1-212(b)(1), G.S., in providing the delinquent taxpayer list to the complainants.
15. Rather, it is found that the respondent engaged in “search and retrieval”, within the meaning of §1-212(b)(1), G.S., in providing the discs.
16. Consequently, it is concluded that the respondent was not permitted to charge the hourly salary of the employee engaged in providing the discs. Rather, the respondent was permitted to charge only the actual cost of the storage device or media, in this case the cost of the discs, within the meaning of §1-212(b)(3), G.S.
17. It is therefore concluded that the respondent violated he FOI Act when he charged the complainants $125.00 for the two discs.
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 complainants the $125.00 minus an amount equivalent to the “actual cost” of the two discs provided to the complainants.
2. The Commission takes this opportunity to inform the parties that nothing in §1-212(c), G.S., precludes the respondent from requesting prepayment in the form of cash, certified check or money order, so long as the fee for providing the copy in question is estimated to be $10.00 or more.
Approved by Order of the Freedom of Information Commission at its regular meeting of July 26, 2006.
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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:
Courant
40 South Street
New Britain, CT 06051
Tax Collector, City of New Britain
c/o Joseph E. Skelly, Jr., Esq.
New Britain Corporation Counsel
27 West Main Street
New Britain, CT 06051
___________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2005-442FD/paj/8/2/2006