FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on August 8, and September 5, 2007, at which times the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.   On January 31, 2008, the hearing officer issued a Hearing Officer’s Report.  At the Commission’s regular meeting of February 13, 2008, the Hearing Officer’s Report was adopted as a Final Decision.  On April 11, 2008, the respondent appealed the Commission’s Final Decision.  On November 21, 2008, the Superior Court held a hearing on the merits of the appeal.  By order dated November 25, 2008, the Superior Court remanded the case to the Commission for further findings.  On January 26, 2009, the hearing officer issued a Second Proposed Final Decision which was withdrawn at the Commission’s regular meeting of February 25, 2009.  By Notice of Remanded Hearing, a remanded hearing was conducted on May 29, 2009 to allow the parties to present additional evidence and/or argument specifically regarding the reasonableness of the fees at issue in this matter, including compliance with the provisions of §1-211(c), G.S., at which time the complainants and the respondent appeared.

 

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 Carla Boland’s computer terminal and which 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 was 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.  The fee for any copy provided in accordance with the Freedom of Information Act:  

 

(1)  By an executive, administrative or legislative office of the state, a state agency or a department, institution, bureau, board, commission, authority or official of the state, including a committee of, or created by, such an office, agency, department, institution, bureau, board, commission, authority or official, and also including any judicial office, official or body or committee thereof but only in respect to its or their administrative functions, shall not exceed twenty-five cents per page; and

 

(2)  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.”

 

12.   Section 1-212(a)(2), G.S., provides in relevant part that the fee for any copy provided in accordance with the Freedom of Information Act “[b]y all other public agencies, as defined in section 1-200, shall not exceed fifty cents per page….”

 

13.   Section 1-211, G.S., further provides, in relevant part, that:

(a)  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 . . .

 

and

 

      (c)  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 [FOI] Act at the least cost possible to the agency and to persons entitled to access to nonexempt public records under the [FOI] 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 provisions of this subsection shall not apply to software modifications which would not affect the rights of the public under the [FOI] Act. 

 

14.   Section 1-212(b), G.S., provides in relevant part that: 

 

“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….”

 

15.   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.

 

16.   It is also found that the requested records are computer-stored records within the meaning of §1-211(a), G.S.

 

17.   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 that his right in this regard is not contingent upon any prior request for the records or the previous failure of other individuals to pay assessed fees.

 

18.   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.

 

19.   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.

 

20.   It is found, however, that the respondent’s present practice is to only maintain the most recent e-mails on the computer 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 catalogued by category so that with the name of the employee and a date, the proper tape can be identified and retrieved.

 

21.   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.

 

22.   It is therefore found that the process of reformatting the emails to their original, readable form was necessary, in the first instance, so that the respondent could simply search the emails to provide the ones requested by the complainant.

 

23.   It is also found that the complainant did not request that the emails be provided in any particular or specialized format, but merely expected that they would be provided in a form that was readable by a human being.

 

24.   It is found that the Connecticut Lottery Corporation’s method of storing its computer data created the need to perform the programming and reformatting functions described in paragraph 21, above. 

 

25.   It is found that the manner in which the Connecticut Lottery Corporation encrypted its emails effectively destroyed the right of the public to even inspect those public records.  If a public agency was permitted to encrypt its email in the manner described in this case, it would effectively destroy transparency with regard to such records for the majority of the members of the public. 

 

26.   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 search and 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 fulfill the public agency’s statutory obligation to provide access to non-exempt public records.

 

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

 

28.   It is therefore found that the $577.59 cost to reformat the requested records back into their original form was not a cost incurred because of either of the complainants’ requests for a particular format, but because of the respondent’s need to search the emails for the ones requested by the complainants. 

 

29.   It is also found that no part of the $577.59 related to the cost to write the program used by the respondent to reformat the records back into a readable form because the program was already available and had been used several times prior to the instant case.

 

30.   It is further found that the technical analyst engaged in providing the requested records simply inserted the tape in the tape drive of the computer, typed in the appropriate commands to initiate the reformatting program, watched the screen for errors or alerts, and typed the commands to either clear an error or respond to an alert.  

 

31.   It is found that, in providing the requested records, the technical analyst spent “most of the time . . . toggling through information…,” but only if there was an error or an alert, and “…physically changing the tape on the tape drive.”[1]

 

32.   It is found, therefore, that the actual formatting and programming process described in paragraph 21, above, was performed using existing software on the computer and that the time spent by an employee actively engaged in reformatting and programming the e-mails was both de minimus and essentially clerical.  

 

33.   Furthermore, §1-211(c), G.S., requires that any public agency seeking to make a change to its computer system must, as a condition precedent, consult with the State Department of Information Technology.  Furthermore, one would expect that any decision of a public agency to change its computer system, equipment or software would include consideration and preservation of the public’s right of access to non-exempt public records.

 

34.   However, at the May 29, 2009 remanded hearing, the respondent’s counsel appeared for the respondent, and refused to offer testimony or make a representation regarding the respondent’s compliance with the provisions of §1-211(c), G.S.

 

35.   It is found, therefore, that the respondent failed to prove that she considered, prior to altering the computer system, equipment or software to store and retrieve non-exempt public records, whether such computer system, equipment or software adequately provided for the rights of the public under the FOI Act at the least cost possible to the agency and to persons entitled to access to non-exempt public records under the FOI Act.  It is also found that the respondent failed to prove that she consulted with the Department of Information Technology as part of the agency's design analysis prior to altering its computer system, equipment or software.  It is further found that the computer system, equipment or software currently used by the respondent to store and retrieve e-mails affects the rights of the public under the FOI Act.  Accordingly, it is concluded that the respondent violated §1-211(c), G.S.

 

36.   Because Connecticut Lottery Corporation’s selected method of storing its computer data created the need to perform the formatting functions described in paragraph 21, above, because the programming functions were necessary simply to search for and retrieve the emails requested by the complainants, and because the respondent failed to consider whether the alteration of the computer system adequately provided for the rights of the public under the FOI Act at the least cost possible to the public, it is found that any and all fees related to these activities are wholly unreasonable and must be borne by the Connecticut Lottery Corporation.  See Office of Health Care Access v. FOIC, J.D. of New Britain, Docket No. CV 030521573 (Apr. 19, 2005, Peck, J.). 

 

37.   It is also 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.

 

38.   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 costs.

 

39.   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 . . . .

 

40.   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.

 

41.   It is concluded that the respondent violated §1-210(a), G.S., by conditioning 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 the Connecticut Lottery Corporation’s 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 January 13, 2010.

 

 

____________________________

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:

 

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

50 Leavenworth Street

P.O. Box 1110

Waterbury, CT 06721

 

and

 

C/o Sheila A. Huddleston, Esq.

Shipman & Goodwin LLP

One Constitution Plaza

Hartford, CT 06103

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2007-228FD/sw/1/20/2010