FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on October 12, 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.  By letter of complaint filed June 11, 2010, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying her request to inspect certain public records.

 

            3.  It is found that by letters dated March 31 and May 10, 2010 to the respondents, the complainant asked to inspect “the record for [the] New London Police dispatch and Sailfest command post in its original audio form for July 11, 2009, 7:00 p.m. to 11:00 p.m.

 

4.  It is found that the respondents did not respond to the requests.

 

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., 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.

 

 7. 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.

 

8. Section 1-212, G.S., provides in relevant part:

 

(b)  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.

 

9. It is found that the requested audio record is archived by the respondents in a computer storage system.

 

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

 

11. It is found that the respondents provided a CD of a portion of the requested record, consisting of one of the at least five police channels recorded.

 

12.  It is found that, by email dated July 16, 2010, the respondents offered to provide access to inspect the remaining channels of the requested record, but indicated that there would be a charge to “segregate” the record and a cost to “assist” the complainant in her inspection. The complainant was advised that those costs might be in excess of $300.00, and that no access would be provided without payment of those costs.

 

13.  It is found that the bulk of the costs that the respondents seek to recover is the overtime pay for the officer or officers to review the audio record for exempt material, which the respondents calculate by multiplying the hourly overtime pay for the officer at $60.00 per hour times four hours. The respondents attribute remaining charges to the cost of “formatting” a computer query in order to retrieve the requested record.

 

14. With regard to the respondents’ desire to charge for the officers’ time, it is concluded that no provision of the FOI Act permits the respondents to charge for the time taken to review the record for exempt information. The Commission declines to address at this time the complainant’s assertion that, because the information was originally broadcast over channels that the public can monitor, it cannot be exempt from disclosure. This claim is moot because of the conclusion reached in paragraph 14, below.

 

15. It is concluded that the respondents violated §1-210(a), G.S., by conditioning access to the records on the complainant’s agreeing to pay for the officers’ time reviewing the requested records.

 

16. It is further concluded that, while §1-211, G.S., permits the respondents to charge for time formatting the requested record itself, it does not permit the respondents to charge for time formulating a query to locate the record. Indeed, §1-211(a), G.S., expressly does not permit the respondents to charge for “search and retrieval” costs, unless such costs are incurred because the records are stored by another agency or contractor.

 

17. It is therefore concluded that the respondents violated §1-211, G.S., by conditioning access to the records on the complainant’s agreement to pay for the cost of formulating a query to locate the requested records.

 

18. The respondents further maintain that §1-211, G.S., only requires that they provide a copy of, not access to inspect, computer-stored records.

 

19. It is concluded, however, that the provisions in §1-211, G.S., for the collection of  fees for copying computer stored records do not supersede the provision of §1-210(a), G.S., which permits payment only for copies of public records, not the inspection of public records. See paragraph 10, above. If the respondents were to seek to recover the cost of providing a redacted copy, because they believed that they could not otherwise allow access, a different issue would be presented.  However, in that case, the cost sought to be incurred would be limited to the minimal cost of the storage device itself, pursuant to §1-211(b)(3), G.S.

 

 

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

 

1.  The respondents shall forthwith provide the complainant access to inspect the requested record, free of charge. If the only way to provide access to the record with exempt information electronically redacted is to make a copy, the respondents may do so. However, the respondents may not charge for such copy, and specifically may not charge for any time spent reviewing or redacting the record.

 

 2.  Henceforth the respondents shall strictly comply with the provisions of §§1-210 and 1-211, G.S.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 11, 2011.

 

 

__________________________

Cynthia A. Cannata

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:

 

Pamela Walsh

50 Bloomingdale Road

Quaker Hill, CT  06375

 

Chief, Police Department, City of New London; and

Police Department, City of New London

c/o Brian K. Estep, Esq.

Londregan, Sheehan and Monaco

38 Huntington Street

New London, CT  06320

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-369/FD/cac/5/16/2011