FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on April 17, 2009, at which time the complainants 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 dated January 2, 2009 and filed with the Commission on January 7, 2009, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information (hereinafter “FOI”) Act by denying their request for a fee waiver and for “electronic” records described in paragraph 3, below.

 

3.  It is found that by email dated December 17, 2008, the complainants renewed their original September 22, 2008 request to the respondent for “electronic” copies of the following information:

 

a.       “[T]he complaint (or last amended complaint) and the court’s judgment/verdict in Estate of Thomes v. City of Hartford, Hartford Superior Court, Case No. HHD-CV-05-500-12223;” and

 

b.      A document with “an attorney fee/cost award” in such case.

(Hereinafter “the requested records”).  The complainants’ asked that the requested records be provided “via email, fax or on CD.”

 

            4.  It is found that, by email dated December 19, 2008, the respondent replied to the complainants’ December 17, 2008 email described in paragraph 3, above, by stating that “[t]he complaint is 13 pages long and the judge’s decision is 42 pages long . . . . 55 pages at 50 cents a page is $27.50.”  The respondent also stated that there was no award of fees or costs.  The respondent further instructed the complainants to “send a check payable to the City of Hartford” in exchange for the requested records.  The respondent denied the complainants’ requests for fee waiver and records in electronic format.

 

5.  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.

 

6.  Section 1-210(a), G.S., states 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…receive a copy of such records in accordance with section 1-212.

 

            7.  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.  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.

 

8.  It is found that to the extent the respondent maintains the requested records, such records are public records within the meaning of §§1-200(5), 1-210(a), and 1-211(a), G.S.

 

9.  At the hearing on this matter, the complainants contended that the respondent denied their request for fee waiver without an explanation, which is against the intent of the FOI Act and provides no basis for a court or an agency to review the respondent’s denial.  The complainants contended that waiver of the copying fee is proper because the disclosure of the requested records “benefits the general welfare” of the public and their national print and online readership, as a nonprofit magazine that reports news, court decisions, and legal proceedings involving detention facilities around the country.  The complainants also contended that the respondent provided no explanation on why the requested records couldn’t be provided in an electronic form such as scan, fax or CD.  The complainants further clarified their request described in paragraph 3b., above, to include any records related to a settlement of the litigation described in paragraph 3a., above.  Additionally, the complainants requested that a civil penalty be ordered against the respondent for withholding all nonexempt records and to deter the respondent from such actions in the future.

 

10.  It is found that no records exist in response to the complainants’ request as described in paragraph 3b., above.

 

11.  Accordingly, it is concluded that the respondent did not violate §1-210(a), G.S., with respect to the request described in paragraph 3b., above.

 

12.  With respect to the complainants’ claim that the respondent should have waived its fees for the requested records, §1-212(d)(3), G.S., provides in relevant part that:

 

The public agency shall waive any fee provided for in this section when . . . (3) in its judgment, compliance with the applicant’s request benefits the general welfare. 

(Emphasis added.)

 

13.  It is found that the respondent considered the complainants’ request for a waiver of the copying fee, but denied such request because, in its judgment, compliance with the records request described in paragraph 3, above, would not benefit the general welfare.

 

14.  It is found, however, that the respondent did not take into consideration the purpose for which the information was sought or the benefit to the public from its disclosure and publication.

 

15.  It is also found that the case relied on by the respondent to deny the fee waiver, Prison Legal News v. Harley G. Lappin, 436 F.Supp.2d 17 (D.D.C. 2006), in fact stands for the opposite proposition:  That under analogous federal FOI law dissemination of similar information was in the public interest.

 

16.  It is further found that the grounds asserted by the respondent in support of its denial, that the fee waiver was not in the public interest because of the financial burden to the City of Hartford, would effectively lead to denials of all fee waivers, eviscerating the statute.

 

17.  It is therefore found that the respondent had no objective, fair, or reasonable basis for denying the complainants’ fee waiver.

 

18.  It is therefore concluded that the respondent abused its discretion when it declined to provide the requested records free of charge.

 

19.  Accordingly, the respondent violated §1-212(d)(3), G.S., when it declined to provide the requested records without any charge to the complainants.

 

20.  As to the complainants’ claim that the respondent failed to provide them with electronic copies of the requested records, it is found that the respondent does not maintain the requested records in electronic form.

 

21.  At the hearing on this matter, the respondent did not contend that it is impossible to scan the requested records or provide the data to the complainants electronically, only that they are not required to do so under the FOI Act.

 

22.  It is found that the requested records sought by the complainants were not contained in the electronic storage system or other computer system at the time of the complainants’ request.

 

23.  It is concluded that the complainants are not seeking a copy of data maintained in the respondent’s computer system.  Rather, the complainants are asking the respondent to convert the requested records to an electronic format by means of scan, fax or by copying the requested records to CD.

 

24.  It is concluded that the respondents did not violate §1-211(a), G.S., by declining to provide the requested records to the complainants in electronic form.

 

25.  Under the facts and circumstances of this case, the Commission declines to consider the imposition of civil penalties against the respondent.

 

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

 

1.  The respondent shall forthwith provide to the complainants a copy of the requested records free of charge in either printed or electronic format.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 23, 2009.

 

 

____________________________

S. Wilson

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:

 

Paul Wright, Alex Friedmann and

the Prison Legal News

C/o Brett Dignam, Esq. and

Robyn Gallagher

The Jerome N. Frank Legal Services Org.

Yale Law School

P.O. Box 209090

New Haven, CT 06520-9090

 

Office of the Corporation Counsel,

City of Hartford

C/o Jonathan H. Beamon, Esq.

Melinda B. Kaufmann, Esq.  and

Nathalie Feola-Guerrieri, Esq.

Office of the Corporation Counsel

City of Hartford

550 Main Street

Hartford, CT 06103

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-018FD/sw/9/25/2009