FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on June 5, 2007, 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 March 14, 2007, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his request for copies of public records.

 

3.  It is found that the complainant, by letter dated January 11, 2007, requested from the respondent Hutorin access to inspect or copy the following records:

           

a.   All periodic reports or work plans referencing the tasks, projects and accomplishments of Greg Sullivan, either as a town employee or consultant in 2000 and 2001;

b.   Greg Sullivan’s email, both inbound and outbound, which in any way references work produced relating to GIS; and

c.  The above to include documents authored or edited, email plans or employee/consultant performance reviews or consultant contracts.

 

4.  It is found that the respondent Hutorin replied on January 17, 2007, indicating that Mr. Sullivan was not employed by the town before January 22, 2002, and that therefore no records pertaining to his employment existed for the years 2000 and 2001, the time period requested by the complainant.

 

5.  It is found that the complainant by letter dated January 17, 2007, “clarified” that he failed to recall the name of the person from whom he was seeking GIS data, and asked the respondent to identify that person by job position, and provide the requested information for that person. 

 

6.  It is found that the respondent Hutorin, by letter dated January 29, 2007, replied that the complainant’s failure to identify the individual whose records he sought had delayed compliance; and that, additionally, to the extent that the requested records were personnel or similar files the disclosure of which would constitute an invasion of personal privacy, the unidentified individual needed to be notified of the request.

 

7.  It is found that the respondent Hutorin made certain records available for the complainant to inspect on February 6, 2007.  The complainant requested and received copies of 75 pages of these documents.

 

8.  It is also found that the complainant also additionally requested on February 6, 2007 that some 105 pages of the records that were made available for his inspection be converted by the respondent to PDF files, some in color, and provided to the complainant in electronic format.

 

9.  It is found that the respondent Hutorin replied that the requested records were maintained only in paper format; that the complainant was free to scan the records using his own hand-held scanner; and the respondent did not believe it was obligated to convert the paper documents into PDF or any other electronic format. 

 

10.  It is found that the complainant on March 8, 2007 requested that the respondent Sullivan provide a copy of a certain 500-page contract in PDF format by email, or on a flash drive, or on a CD ROM.

 

11.  It is found that the respondent Sullivan similarly replied that the requested record was maintained only in paper format; that the complainant was free to scan the records using his own hand-held scanner; and the respondent did not believe it was obligated to convert the paper documents into PDF or any other electronic format. 

 

12.  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.

 

13.  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, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. 

 

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

 

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

 

16.  At the hearing, the complainant withdrew so much of his request as could be construed as a request for records contained in a personnel or similar file.

 

17.  The complainant contends that not all the records he requested were made available for his inspection on February 6, 2007.  Specifically, the complainant contends that (a) a contract referenced in an email and a fax cover sheet that the complainant inspected was not provided; (b) numerous biweekly reports that a vendor was contractually required to provide were missing; and (c) emails to and from the respondent Hutorin and the vendor were missing. 

 

18.  It is found that the respondent did not archive emails during the period requested by the complainant; and that few emails were generated because the three individuals working on the GIS project—an employee, a consultant, and the respondent Hutorin—were physically located in the same room.

 

19.  It is found that the respondent Hutorin provided to the complainant all relevant contracts and reports that he was able to locate.

 

20.  It is found that the respondent Hutorin conducted a diligent search that did not produce any records in addition to the ones given to the complainant on February 6, 2007.

 

21.  It is concluded that the respondent Hutorin did not violate §§1-210(a) and 1-212(a), G.S., by failing to produce additional records to the complainant.

 

22.  The complainant contends that §1-211(a), G.S.,  requires both respondents to scan paper copies of records they produced for him, and then provide the data to him in PDF format in an electronic medium.

 

23.  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. 

 

24.  As a matter of policy, the complainant contends the processes of copying and scanning are essentially the same, that PDF conversion is easier and less time intensive than printing to paper, and that bound paper copies (the form in which the requested contract is maintained by the respondent Sullivan) are not easily scanned and converted by him back into editable text.

 

25.  In support of his statutory argument, the complainant contends when a record is copied, the record is scanned by the copier and the data is then saved to a hard drive of the copier.  The complainant thus contends that the image data (apart from the paper record) is itself maintained “in a computer storage system” within the meaning of §1-211(a), G.S., and therefore a copy of that data must be provided on any electronic storage device or medium requested by him.

 

26.  The respondents do not contend that it is impossible to scan the requested records and provide the data in PDF format, only that they are not required to do so.  The respondents point out that the complainant is permitted by statute to scan the records using his own hand-held scanner, pursuant to §1-212(g), G.S.

 

27.  Section 1-212(g), G.S., provides:

 

Any individual may copy a public record through the use of a hand-held scanner.  A public agency may establish a fee structure not to exceed ten dollars for an individual to pay each time the individual copies records at the agency with a hand-held scanner.  As used in this section, “hand-held scanner” means a battery operated electronic scanning device the use of which (1) leaves no mark or impression on the public record, and (2) does not unreasonably interfere with the operation of the public agency. 

 

28.  It is found that the image data, while it is temporarily stored by the copier, is not “maintained” in a computer storage system within the meaning of §1-211(a), G.S.

 

29.  More specifically, it is found that the image data representing the records sought by the complainant certainly was not contained in the electronic storage system of the copier or other computer system at the time of the complainant’s request.  Rather, such data is only stored in the copier when the records are actually copied or scanned. 

 

30.  It is concluded that the complainant is not seeking a copy of data maintained in the respondents’ computer system.  Rather, the complainant is asking the respondents to scan the records for him.

 

31.  It is concluded that the respondents did not violate §1-211(a), G.S., by declining to scan the requested records and provide the data in the form of a PDF file.

 

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

 

            1.  The complaint is dismissed.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 27, 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:

 

Stephen Whitaker

15 East Putnam Avenue

Suite 311

Greenwich, CT 06830

           

Boris Hutorin, Director,

Department of Information Technology,

Town of Greenwich; and

Joan Sullivan, Director of Purchasing

and Administrative Services,

Town of Greenwich

c/o Valerie Maze Keeney, Esq.

Assistant Town Attorney

101 Field Point Road

PO Box 2540

Greenwich, CT 06836-2540

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-158FD/paj/3/5/2008