FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

         

The above-captioned matter was heard as a contested case on September 6, 2007, at which time 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.  By letter of complaint filed June 6, 2007, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying his request for access to public records.

 

3.  It is found that the complainant made a May 7, 2007 request for access to certain public records maintained in electronic form by the respondent in connection with its duties under the Child Support Enforcement Program.

 

4.  Specifically, the complainant sought the following information concerning individuals that a Connecticut court had found to be delinquent in their child support obligations:

a.       The last name;

b.      The first name;

c.       The date of birth, if available;

d.      The sex, if available;

e.       The total amount of child support found to be currently in arrears;

f.        The docket number of the cases determining any arrears owed.

5.  The Commission takes administrative notice of the fact that the Bureau of Child Support Enforcement (“BCSE”) operates under federal Title IV-D state plan requirements of the Social Security Act.  Title IV of the Social Security Act consists of four parts (A,B,D and E) and provides for the annual appropriation of formula grant funding to subsidize the operation of various state-level welfare programs as outlined in each part of the title, as long as the states comply with the federal guidelines. 

6.  The Commission takes administrative notice of the fact that Title IV, Part A is referred to as Temporary Assistance for Needy Families (“TANF”).  Formerly known as AFDC, the TANF program imposes federal guidelines to which all states must adhere in order to receive billions of dollars in federal grant funding.  This money is only available to a state when that state complies with these federally imposed guidelines. 

7.  The Commission takes administrative notice of the fact that Title IV-D of the Social Security Act mandates that states provide specific child support enforcement services in order to receive federal funding under TANF.

8.  Section 17b-2, G.S., provides that “[t]he Department of Social Services is designated as the state agency for the administration of … (11) the state child support enforcement plan pursuant to Title IV-D of the Social Security Act ….”

9.  It is found that the respondent’s  BCSE locates absent parents, establishes paternity, establishes and modifies orders of support, and collects and distributes child support payments. 

10.  It is found that the respondent maintains the requested data in its computer storage system.

11.  It is found that the respondent’s database is structured so that each field of data is separate, including the fields requested by the complainant.

12.  It is found that the respondent can export the requested data to a Microsoft Excel spreadsheet, although such a process might require programming or formatting, and can provide the requested records to the complainant if required to do so.

13.  It is found that the respondent denied the complainant’s request by email dated May 25, 2007.

14.  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.

 

15.  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. 

 

16.  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.”

 

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

 

            18.  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.

 

19.  Section 1-212(b), G.S., provides:

 

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.  Notwithstanding any other provision of this section, the fee for any copy of the names of registered voters shall not exceed three cents per name delivered or the cost thereof to the public agency, as determined pursuant to this subsection, whichever is less.  The Department of Information Technology shall monitor the calculation of the fees charged for copies of computer-stored public records to ensure that such fees are reasonable and consistent among agencies.

 

20.  The respondent contends that the requested records are exempt from disclosure under the provisions of §1-210, G.S.  Specifically, the respondent contends that subsection (a) of §1-210, G.S., permits access to records maintained by a public agency “[e]xcept as otherwise provided by any federal law or state statute.”

 

21.  Specifically, the respondent contends that §654A(d) of Title 42 of the U.S. Code requires that the agency responsible for carrying out the provisions of Title IV-D of the Social Security Act (the IV-D agency, which in Connecticut is BCSE) “have in effect safeguards … on access to … data in the automated system …” including “[w]ritten policies … which … permit access to an use of data only to the extent necessary to carry out the State (IV-D) program ….” 

 

22.  In support of its contention, the respondent points out that BCSE has such a written policy, which provides as follows:

 

No disclosure of any information about an applicant or recipient of IV-D services, or a noncustodial parent, which is obtained by BCSE from any source or in any manner in the course of a child support investigation will be made, except in connection with the administration of the IV-D program.

 

23.  The complainant contends that the records he requested were derived from public court records, and that therefore the respondent should be required to provide the same public information from its own files.

 

24.  The respondent contends, however, that it is immaterial where the records originated, even if in public court records, and that when the records are entered in the respondent’s automated system, they become exempt from disclosure in accordance with this federal law regarding the IV-D program.

 

25.  However, federal law regarding the IV-D program does not “otherwise provide” for the disclosure of public records under §1-210(a), G.S., because the IV-D program is a federal spending statute that conditions receipt of federal grants upon compliance with certain conditions.  Title IV-D is therefore simply an exercise of the Congress’ power to control its own spending by placing attachments and conditions thereto.  Title IV-D does not itself prevent disclosure, but merely operates to condition funding.

         

            26.  The precise question of whether a public agency may withhold records on the basis of a federal statute that conditions Congress’ exercise of its spending powers on state compliance with federal confidentiality requirements was considered by our Supreme Court in Maher v. FOIC, 192 Conn. 310 (1984).  In Maher, the Department of Income Maintenance (“DIM”) claimed that its records of prescription drugs made available to public assistance recipients under the Medicaid program were exempt as confidential under Title XIX of the Social Security Act, 42 U.S.C. §§1396 et seq.  Just as the respondent has argued in the present case, the plaintiff DIM there argued that Title XIX and the regulations promulgated thereunder require state agencies to protect the privacy of Medicaid recipients, and that the disclosures ordered by the FOI Commission were therefore improper because they violated federal law and hence placed the state in jeopardy of federal sanctions such as loss of federal reimbursement for Title XIX expenditures.  The Court in Maher rejected this argument then, as the Commission must now, because the argument misconceives the nature of federal law enacted pursuant to Congress’ spending power under Article I Section 8 of the U.S. Constitution:

The federal government has not required the states to provide Medicaid services to the medically indigent.  Instead, it has offered the states federal grants in aid, conditioned upon federally determined safeguards.  State participation in the Medicaid program is thus entirely optional, although a state program must comply with the requirements of Title XIX once it elects to participate.  [Citations omitted].  Nothing in the federal regulatory scheme per se prevents a state legislature from enacting binding legislation, as part of its Freedom of Information Act or elsewhere, that is inconsistent with Medicaid safeguards.  The consequence of such legislative action would be to deprive the state of the benefit of federal Medicaid moneys.  While the DIM might well deplore such a result, it would have no standing to contest it.  Federal law thus provides no direct defense to the disclosures that the FOIC has directed.  [Footnote omitted; emphasis added].

 

Maher at 317-318.

 

27.  It is therefore concluded that Title IV-D is simply an exercise of Congress’s power to spend, and thereby exercise “persuasion to action over which Congress has no legislative control.”  United States v. Butler, 297 U.S. 1, 83, 56 S.Ct. 312, 80 L.Ed. 477 (1936) (Stone, dissenting).  Clearly, the effect, beneficial or otherwise, of federal spending does not change the character of a spending act, any more than the effect, crippling or otherwise, of the removal of that spending.  Simply put, Congress may preempt state law only in an area in which it has a constitutionally granted power—for example, power under the Commerce Clause (see, e.g., Louisiana Public Service Comm’n v. FCC, 106 S.Ct. 1890 (1986)); or Congressional power with respect to treaties and foreign relations (see, e.g., Hines v. Davidowitz, 61 S.Ct. 399 (1941).  In the instant case, however, power over child support enforcement and state records is reserved to the states.  Congress through Title IV-D of the Social Security Act has unambiguously exercised only its power under Article I, Section 8 of the Constitution to spend—to persuade where it may not coerce.  There is simply no question of federal preemption, because Congress has asserted no authority to do anything but condition the granting of federal dollars.  Hartford Board of Education v. Freedom of Information Commission et al., CV 95-0555646, Superior Court, Judicial District of Hartford-New Britain at Hartford, Memorandum of Decision dated January 9, 1995.

 

28.  It is therefore concluded that the requested records are not exempt from disclosure pursuant to the provisions of 42 U.S.C. §654A(d).

 

29.  The respondent also contends that the requested records are exempt from disclosure pursuant to §17b-90(b), G.S., which provides in relevant part:

 

     No person shall, except for purposes directly connected with the administration of programs of the Department of Social Services and in accordance with the regulations of the commissioner, solicit, disclose, receive or make use of, or authorize, knowingly permit, participate in or acquiesce in the use of, any list of the names of, or any information concerning, persons applying for or receiving assistance from the Department of Social Services or persons participating in a program administered by said department, directly or indirectly derived from the records, papers, files or communications of the state or its subdivisions or agencies, or acquired in the course of the performance of official duties.

 

30.  The respondent contends that it deems non-custodial parents against whom it seeks enforcement of support orders to be “participating in a program administered by” DSS within the meaning of §17b-90(b), G.S.

 

31.  Section 17b-90, G.S., does not define the phrase “participating in a program administered by” DSS. 

 

32.  Webster’s Third New International Dictionary Unabridged (1993) defines “participate” in relevant part to mean: “to take part in something (as an enterprise or activity) usually in common with others,” giving as appropriate examples of the word in context: “three cabinet members from each country … would participate in the Copenhagen meeting” and “residents of this district often participate in barn dances.”

 

33.  It is concluded that the persons about whom the complainant is seeking information are persons “participating” in a program administered by DSS.

 

34.  It is therefore concluded that the requested records are exempt from disclosure pursuant to §17b-90(b), G.S.

 

35.  It is concluded that the respondent did not violate §§1-210(a) and 1-211(a), G.S., by failing to provide access to the requested information.

 

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 May 14, 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:

 

Edward Peruta

38 Parish Road

Rocky Hill, CT 06067

           

Commissioner, State of Connecticut,

Department of Social Services

c/o Tanya Feliciano DeMattia, Esq.

Assistant Attorney General and

Patrick B. Kwanashie, Esq.

Assistant Attorney General

55 Elm Street

PO Box 120

Hartford, CT 06141-0120

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-336FD/paj/5/20/2008