FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on January 15, 2010, 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.      On August 31, 2009, the complainant made a written request for copies of:

 

e-mails where my name is mentioned in the subject and/or in the body of the message that were sent to the following addresses poppd@yurservice.com and mayor@cityofgroton.com between the dates of 20 August and 24 August, 2009 and any subsequent replies to or forwarding of those emails.  I further request that all information pertaining to the emails be provided including, but not limited to, the body of the emails, the Internet source codes and the Bayesian breakdowns.

 

3.      It is found that on September 3, 2009, the respondents provided a copy of the emails to the complainant, but did not provide the Internet source codes and the Bayesian breakdowns that the complainant requested.

 

4.      It is found that the respondents informed the complainant by letter dated September 11, 2009 that they denied his request for the Internet source codes and the Bayesian breakdowns, claiming that they were exempt from mandatory disclosure.

 

5.      By e-mail received and filed on October 7, 2009, the complainant appealed to the Freedom of Information (“FOI”) Commission, alleging that the respondents violated the FOI Act by failing to provide copies of the requested records, described in paragraph 4, above.

 

6.       Section 1-200(5), G.S., defines “public records” as follows:

 

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, …whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

7.       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 inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-212.

 

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

 

9.      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. 

 

10.   It is found that the source code is information that accompanies every e-mail across the internet.  It is found that the source code is the e-mail’s path from its originating internet protocol address to the receiving address.  It is found that the source is in the “back” of every e-mail, except those that have been forwarded.  It is further found that the internet source code is accessed by “right-clicking” on the originating address to view the “source code” in the e-mail’s background.  It is further found that the Bayesian breakdown is the list of words used in conjunction with the e-mail, and is accessed in the same manner.

 

11.     It is found that the Internet source codes and Bayesian breakdowns are data or information recorded in the respondents’ electronic files, within the meaning of §1-200(5), G.S.

 

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

 

13.     The respondents claim that §1-210(b)(20), G.S., exempts the Internet source codes and Bayesian breakdowns from mandatory disclosure. 

 

14.     Section 1-210(b)(20), G.S., provides that disclosure is not required of:

 

[r]ecords of standards, procedures, processes, software and codes, not otherwise available to the public, the disclosure of which would compromise the security or integrity of an information technology system.

 

15.     It is found that the respondents failed to provide any evidence to demonstrate how disclosure of the requested records would compromise the security or integrity of its information technology system.  It is also found that the respondents failed to prove that the requested records constitute “records of standards, procedures, processes, software and codes,” within the meaning of §1-210(b)(20), G.S.  Accordingly, it is concluded that §1-210(b)(20), G.S., does not provide a basis for withholding the requested records.

 

16.     The respondents also claim that §31-51m, G.S., supports their decision not to disclose the Internet source codes or Bayesian paths.

 

17.      Section 31-51m, G.S., provides in relevant part:

 

No employer shall discharge, discipline or otherwise penalize any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body, or because an employee is requested by a public body to participate in an investigation, hearing or inquiry held by that public body, or a court action. No municipal employer shall discharge, discipline or otherwise penalize any employee because the employee, or a person acting on behalf of the employee, reports, verbally or in writing, to a public body concerning the unethical practices, mismanagement or abuse of authority by such employer. The provisions of this subsection shall not be applicable when the employee knows that such report is false.

 

18.     Section 31-51m, G.S., protects an employee who discloses an employer’s illegal activities or unethical practices.  Also, it is also found that §31-51m, G.S., protects against retaliatory discharge, discipline, or other penalty, but does not prohibit the disclosure of information.

 

19.     Accordingly, it is concluded that §31-51m, G.S., does not provide a basis for withholding the requested records.

 

20.     The respondents claim that complying with the complainant’s request would require them to perform research, which is not required by the FOI Act.

 

21.     It is found, however, based on the evidence in this matter, that the Internet source codes and Bayesian breakdowns requested by the complainant are maintained as archives and are easily accessible without the need to exercise professional analysis and discretion.  It is concluded, therefore, that the respondents do not need to perform research, but need merely to search, in order to comply with the complainant’s request.

 

22.     It is found that the respondents can reasonably make a copy of the electronic records that the complainant requested, within the meaning of §1-211(a), G.S.

 

23.     It is concluded, therefore, that the respondents violated §§1-210, 1-211, and 1-212, G.S., by failing to provide copies of the records that the complainant requested, described in paragraph 2, above.

 

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

 

1.    Forthwith, the respondents shall provide copies of the records described in paragraph 4 of the findings of fact, free of charge.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of April 14, 2010.

 

 

 

____________________________

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:

 

Donald Niles, Jr.

172 Carpenter Avenue

Meriden, CT 06450

 

Mayor, City of Groton; and

City of Groton

c/o Matthew Shafner, Esq.

PO Box 1591

New London, CT 06320

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2009-593FD/paj/4/19/2010