FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on August 10, and September 5, 2007, at which times the complainants 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.      It is found that by e-mail dated March 1, 2007, the complainant Wanda Smith made a request for any and all e-mail correspondence from March 2003 to March 2007 between a Carla Boland and certain specified persons.

 

3.      It is found that Ms. Smith’s request was for a paper copy of the e-mails which she believed were maintained on the Carla Boland’s computer terminals and would have required the respondent to simply search for, retrieve, and print them.

 

4.      It is found that after some correspondence between Ms. Smith and the respondent, by e-mail dated April 4, 2007, the respondent wrote the following:

 

The Lottery has completed compiling the documents responsive to your March 1, 2007 Freedom of Information request.  There are 756 pages that fulfill the criteria responsive to your request.

Based on the above, we would offer you the following:

1.      You may submit a check, payable to the Connecticut Lottery Corporation, in the amount of $955.59.  This amount represents $378.00 for the documents

($.50 x 756) plus $577.59 for IT personnel costs for formatting and programming functions necessary to produce the copies you requested. Upon receipt of payment, the documents will be mailed to your home address.

 

2.      In the alternative, you may call to schedule an appointment during normal business hours to review the documents at Connecticut Lottery headquarters. At that time, you may review the documents responsive to your request, select the documents that you would like copied and provide payment at the rate of $.50 per page in addition to the $577.59 for IT personnel costs. You will then be given copies of the documents you selected.

 

5.      It is found that Ms. Smith requested an explanation of the charges and on April 9, 2007, the respondent informed her in an e-mail that the technical analyst spent thirteen and a half hours formatting and programming the e-mails for review at an hourly rate of $44.43 making the total amount due for programming and formatting $577.59 –not including the half hour. 

 

6.      It is found that by e-mail dated April 16, 2007, the complainant, Nelson Leon, requested to inspect the records compiled pursuant to Ms. Smith’s request.

 

7.      It is found that by e-mail dated April 17, 2007, the respondent informed Mr. Nelson that until the programming and formatting charges described in paragraph 5, above, were paid (either by Mr. Nelson or the original requester), the respondent is not “prepared to allow the documents to be reviewed.”

 

8.      By letter dated and filed on April 18, 2007, the complainants appealed to this Commission alleging that the respondent violated their rights under the Freedom of Information (“FOI”) Act by failing to comply with their records requests.

 

9.      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.

 

10.   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.

 

11.   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 . . . .”

 

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

 

13.   At the hearing on this matter, the complainants contended that the fees were excessive and explained that they objected to the manner in which the respondent attempted to comply with Ms. Smith’s request, which they contended should have included informing her of the volume of records that would be compiled, the process required to retrieve the requested records, and the estimated cost, before the technical analyst actually began the work to retrieve and compile the requested records.  The complainants also contended that, in spite of any payment due for the formatting and programming to retrieve the documents, the respondent is not permitted to charge Mr. Leon to inspect the records and his right in this regard is not contingent upon any prior request for the records.

 

14.   At the hearing on this matter, as well as in her brief, the respondent contended that the charges are appropriate because they are consistent with the provisions of §1-212(b)(1), G.S., and are actually less than what could be charged for the records.  The respondent further contended that the complainants were working in concert to obtain the records and that Mr. Leon requested the records on Ms. Smith’s behalf, as well as on his own, so that she would not have to pay the formatting and programming costs.  The respondent contended that, therefore, Mr. Leon is just as much responsible for the charges as Ms. Smith.

 

15.   Section 1-212, G.S., provides in relevant part that:

 

(a) . . . .The fee for any copy provided in accordance with the Freedom of Information Act:

 

(1)  By all other public agencies, as defined in section 1-200, shall not exceed fifty cents per page.  If any copy provided in accordance with said Freedom of Information Act requires a transcription, or if any person applies for a transcription of a public record, the fee for such transcription shall not exceed the cost thereof to the public agency. . .

 

(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 ….

 

16.   It is found that requested records are computer-stored records within the meaning of §1-212(b)(1), G.S.

 

17.   It is found that the requested records were originally maintained in Carla Boland’s computer terminal in the software program called Outlook and were in a readable text format.

 

18.   It is found, however, that the respondent’s practice is to only maintain the most recent e-mails on its servers and to copy and store all other e-mails on storage tapes that are maintained off site for disaster recovery purposes.  It is found that each tape is marked and cataloged by category so that with the name of the employee and a date, the proper tape can be identified and retrieved.

 

19.   It is found, however, that the data on the tape appears on a computer screen as a series of symbols, letters and/or numbers and is not in a format that can be read.  It is found that in order to read the requested records, the data had to undergo a formatting and programming process called cataloging, after which the data was restored, copied to a secure personal computer and then re-linked to the Outlook software program.  It is found that once the e-mails were re-linked to Outlook, the respondent was able to identify and retrieve the e-mails responsive to Ms. Smith’s request.

 

20.   It is found that while the respondent’s method of storing its computer data may be acceptable and reasonable in this age of modern technology, the Connecticut Lottery Corporation’s actions created the need to perform the programming and formatting functions described in paragraph 19, above. 

 

21.   It is found that when a public agency has altered such public records from their original format in a manner that makes it impossible for even the public agency to retrieve the records without specialized equipment, programs, or computer skills, it is unfair to require a member of the general public to bear the cost of restoring the records to the original format in order to receive a paper copy of that record.

 

22.   It is found that, in this case, the programming and formatting was necessary in order to even read the e-mails and that without the formatting and programming, the respondent would not have been able to determine which records were responsive to Ms. Smith’s request. 

 

23.   It is found that, based on the facts and circumstances of this case, the $577.59 fee constitutes “search and retrieval cost” within the meaning of §1-212(b)(1), G.S.

 

24.   It is concluded, therefore, that the respondent violated §1-212(b)(1), G.S., by requiring Ms. Smith to pay the search and retrieval costs in addition to the copying cost.

 

25.   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 inspect such records promptly during regular office or business hours . . . .

 

26.   It is concluded that, §1-210(a), G.S., also requires the respondent to permit Mr. Leon to review the records without any charge, provided he does not take possession of the copies.

 

27.   It is concluded that the respondent violated §1-210(a), G.S., by conditioning the Mr. Leon's right to promptly inspect the requested records upon prepayment of any 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 permit the complainants to inspect the records described in paragraph 4 of the findings, above, at Connecticut Lottery headquarters during normal business hours at which time the complainants may select the records that they would like copied and provide payment at the rate of fifty cents per page.

 

2.      Henceforth, the respondent shall strictly comply with the fee provisions of §1-212, G.S. and the inspection provisions of §1-210(a), G.S.

 

           

Approved by Order of the Freedom of Information Commission at its regular meeting of February 13, 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:

 

Wanda Smith

77 Fox Hollow Drive

Windsor Locks, CT 06096

 

Nelson Leon

10 Curry Lane

East Hampton, CT 06424 

           

Director of Human Resources, State

of Connecticut, Connecticut Lottery Corporation

c/o Richard L. Street, Esq.

Carmody & Torrance LLP

50 Leavenworth Street

PO Box 1110

Waterbury, CT 06721-1110

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-228FD/paj/2/20/2008