FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on September 24, 2007, at which time the complainant and 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.      By letter dated April 17, 2007 and filed on April 20, 2007, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by:

 

a.       denying her request for a copy of a record;

 

b.      failing to comply with Department of Information Technology (“DOIT”) Guidelines under the FOI Act;

 

c.       falsification and alteration of a record; and

 

d.      destruction of a record.

 

The complainant requested that the respondent be ordered to reimburse her for certain expenses she incurred as a result of this complaint and that this Commission impose a civil penalty against the respondent.

 

3.      With respect to the complainant’s allegation described in paragraph 2a, above, it is found that, by letter dated March 26, 2007, the complainant made a request for a copy of a certain internal affairs report written by Inspector Gary Golas which copy reflects the computer-generated time and date stamp of when the report was first created in the system.  It is found that the complainant requested the report on CD and in paper form. 

 

4.      Section 1-200(5), G.S., provides in relevant part that:

 

“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.

 

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

 

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.

 

6.       Section 1-212(a), G.S., provides in relevant part that “any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record . . . .”

 

7.      It is found that the requested records, to the extent such records exist, are public records within the meaning of §§1-200(5), 1-212(a) and 1-210(a), G.S.

 

8.      By letter dated April 5, 2007, the complainant was informed that the software used to generate the requested internal affairs report, OmniForm, does not generate date and time stamps on the documents.  It is found that the complainant was further informed that the OmniForm software was used in conjunction with a Records Management System, and that, to the best of the respondent’s computer systems analyst’s knowledge, there are no internal date or time stamps generated in that system.

 

9.      However, at the hearing on this matter, the complainant contended that after consulting with the company that owns the Omniform software, and at the expense of purchasing the software and hiring a computer consultant, she was able to “point and click” on the computer screen to produce the document’s properties form that showed the date and time of the document’s creation. 

 

10.   At the hearing on this matter, the complainant further contended, that in spite of the respondent’s claim that they can not produce the record she requested in her March 26, 2007 request, that request would not have been necessary had the respondent provided her with the document’s properties form she originally requested in December of 2006.  The complainant contended that the respondent deliberately mislead her in his effort to keep her from learning that the report is a fraudulent report.  

 

11.   It is found that the complainant made a request for a copy of a “printout of document properties of internal affairs report re Koskinas . . .” on December 10, 2006 and was informed that the internal affairs report “did not exist in a ‘document’s properties’ form.”  It is found, however, that the complainant was provided with a copy of the report on CD.

 

12.   It is found that the complainant did not file a complaint with respect to her December 10, 2006 request and therefore it is not at issue in this complaint.  It is found however, that the respondent’s computer systems analyst, after some research and trial attempts, was able to apply a program that generated a document’s properties form from the computer’s hard drive that produced the information the complainant sought.  It is found that the respondent provided the complainant with a copy of that document at the hearing on this matter. 

 

13.  It is also found that the document’s properties form the complainant was able to produce, as described in paragraph 9, above, was not the record the complainant requested in her December 10, 2006 request and that her efforts only prove that Omniform software can generate a document’s properties form under the conditions she used the software but not that the respondent could generate the form under the conditions he uses the software.

 

14.   It is further found that the record that the complainant requested in her March 26, 2007 request, in the form she specifically requested, as described in paragraph 3, above, does not exist and can not be generated. 

 

15.   It is concluded, therefore, that the respondent did not violate the FOI Act as alleged by the complainant in paragraph 2a, above.

 

16.   With respect to the complainant’s allegation described in paragraph 2b, above, §1-211(c), G.S., provides in relevant part that:

 

On and after July 1, 1992, before any public agency acquires any computer system, equipment or software to store or retrieve nonexempt public records, it shall consider whether such proposed system, equipment or software adequately provides for the rights of the public under the Freedom of Information Act at the least cost possible to the agency and to persons entitled to access to nonexempt public records under the Freedom of Information Act.  In meeting its obligations under this subsection, each state public agency shall consult with the Department of Information Technology as part of the agency's design analysis prior to acquiring any such computer system, equipment or software.  The Department of Information Technology shall adopt written guidelines to assist municipal agencies in carrying out the purposes of this subsection.  Nothing in this subsection shall require an agency to consult with said department prior to acquiring a system, equipment or software or modifying software, if such acquisition or modification is consistent with a design analysis for which such agency has previously consulted with said department.  The Department of Information Technology shall consult with the Freedom of Information Commission on matters relating to access to and disclosure of public records for the purposes of this subsection.  The provisions of this subsection shall not apply to software modifications which would not affect the rights of the public under the Freedom of Information Act.

 

17.   It is found that, while the written guidelines adopted by DOIT are intended to assist municipal agencies, there is nothing in the FOI Act that requires a public agency to comply with the written guidelines adopted by DOIT pursuant to the FOI Act and therefore, it is concluded that the complainant has not alleged a violation of the FOI Act in that regard.

 

18.   With respect to the complainant’s allegations described in paragraph 2c and 2d, above, the complainant has not alleged a violation of the FOI Act.  

 

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 January 9, 2008.

 

 

________________________________

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:

 

Joan Lorraine Zygmunt

20 Hendrie Court

Stamford, CT 06902

           

Chief, Police Department,

Town of Westport

c/o Gail Kelly, Esq. and

Ira Bloom, Esq.

Wake, See, Dimes,

Bryniczka, Day & Bloom

27 Imperial Avenue

Westport, CT 06880

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-241FD/paj/1/14/2008