Appendix Report of Counsel to The Freedom of Information Commission

Procedural, Jurisdictional and Substantive

Arguments in Opposition to Draft Declaratory Ruling #94.

1. Use of home telephone answering devices and cellular phones makes the

draft ruling particularly burdensome and impractical.

Some participants argued that public officials use home computers to receive and send both personal and official e-mail messages and that they use residential telephone message machines to record both personal and official calls. They claim that this is a matter of convenience and saves taxpayer money. The assertion is that the draft ruling is unacceptable because it would reach into private homes and that separation of commingled personal and official items would not be easy to accomplish.

Law. Section 1-200(5), G.S., defines “public record” as “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.”

Section 1-210(a), G.S., states in relevant part: “Each such public agency shall

keep and maintain all public records in its custody at its regular office or place of

business in an accessible place and, if there is no such office or place of business,

the public records pertaining to such agency shall be kept in the office of the clerk

of the political subdivision in which the agency is located or of the Secretary of

the State, as the case may be.”

Analysis and Conclusions. It is clear from the language of §1-210(a), G.S., that all public records must be kept at the regular office or place of business of the agency concerned. Thus, to the extent that any e-mail or voice mail records constitute public records, as defined in §1-200(5), G.S., they may not be kept exclusively in a home computer or telephone message device. They must be kept at a public facility as set forth in §1-210(a), G.S. Consequently, this argument lacks merit because the commingling of

official and personal messages on a home computer or telephone message device constitutes legally insufficient justification for evading the requirements of §1-210(a), G.S.

In addition, some participants argued that home telephone answering devices and cellular phones that receive and record communications both directed to a public official in that capacity and are also used by that official’s family for personal purposes, pose particular problems – e.g., children may delete official messages that must be transcribed under the proposed ruling and cellular phone voice mail boxes are owned and operated by the cellular phone company providing that service.

The draft ruling does not address the problem of using family voice mail devices and cellular phones. Perhaps it should have. What is clear is that the FOI Act does not, and should not be construed, to permit public officials to evade the Act’s open records and open meetings provisions by using personal or family equipment.

2. Declaring official e-mail and voice mail messages to be public records will

discourage frank, informal conversations with and among public officials

and constitutes a violation of the free speech provisions of the First

Amendment.

Some public official participants stated that part of their jobs is to informally interact with other members of their agencies, professional staff, members of other boards and commissions and the public. They argued that an extension of the FOI rules to cover one-on-one conversations, including e-mail conversations, will discourage frank dialog and have a chilling effect on First Amendment free speech expression.

Law. Section 1-200(2), G.S. defines meeting as:

“any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. ‘Meeting’ does not include: Any meeting of a personnel search committee for executive level employment candidates; any chance meeting, or a social meeting neither planned nor intended for the purpose of discussing matters relating to official business; strategy or negotiations with respect to collective bargaining; a caucus of members of a single political party notwithstanding that such members also constitute a quorum of a public agency; an administrative or staff meeting of a single-member public agency; and communication limited to notice of meetings of any public agency or the agendas thereof. A quorum of the members of a public agency who are present at any event which has been noticed and conducted as a meeting of another public agency under the provisions of the Freedom of Information Act shall not be deemed to be holding a meeting of the public agency of which they are members as a result of their presence at such event.”

Section 1-225(a), G.S., states in pertinent part: “The meetings of all public

agencies, except executive sessions, as defined in subdivision (6) of section 1-

200, shall be open to the public.”

Analysis and Conclusion. This argument is totally without merit. Section 1-200(2), G.S., as interpreted by the Commission and the courts, sets forth when a “meeting” of a public agency occurs, and §1-225(a), G.S., sets forth the rules for open meetings. These rules simply do not implicate the First Amendment rights of public officials in their capacity as public figures. The legislature, as it has done in the FOI Act, has the right to set the rules for meetings of public agencies. Obviously the canard that such rules discourage frank dialog has been considered by the legislature. It is clear that our legislature has continuously since 1975 believed that transparent government is more important in our democratic system of government than any unproved and improvable idea that frank discussions among public officials will not occur along with an open government.

3. Although the draft declaratory ruling generally tracks the applicable

retention schedules for e-mail records, it does not do so with respect to voice

mail records and consequently the latter should be treated differently

because they are not public records and are generally transitory in nature.

Some participants argued that the draft ruling equated voice mail with e-mail. This is essentially accurate. However, they go on to argue that these two kinds of recorded data are not equivalent and therefore should not be treated the same way. They claim that voice mail messages are not public records, but rather are solely transitory in nature (i.e., they do not contain any substantive information relating to the conduct of the public’s business or any information relating to the decision-making processes of government - for example, non-record material such as junk mail, publications, notices, reviews, announcements, employee activities, routine business activities, casual and routine communications similar to telephone conversations). They also claim incidentally that voice mail does not create a record of the information being transmitted. See Draft Declaratory Ruling #94, p. 5, second paragraph and Schedule S-1, item S1-110, Schedule M-1, item M1-135, and General Letter 98-1, p. 1, last paragraph and p. 3, last two paragraphs.

Evidence adduced at hearing demonstrated that e-mail and voice mail technology today is, and to an even greater extent in the near future will be, electronically based and enables the recipient to retain and, in a growing number of instances even archive, messages in electronic form. And clearly their contents can be retained in written form by notation or transcription.

Law. Section 1-200(5), G.S., defines “public record” as “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.”

Analysis and Conclusion. It is clear that this argument is patently wrong with respect to several key points of fact and law.

First, the Public Records Administrator (PRA) testified that e-mail and voice mail messages are not equivalent. Yet, in her General Letter 98-1, she states “[v]oice mail (including answering machines) can be considered a type of electronic mail [i.e., e-mail] communication. In this case, the [voice mail] message is recorded in an audible rather than a visible format.” See General Letter 98-1, page 4. They are both really two different forms of electronic or “e-messaging.” Her statement in Schedule S-1, page 1, last paragraph, that voice mail does not create a record of the information being transmitted is clearly untrue.

Second, some participants argued that e-mail and voice mail communications should not be treated the same way. However, since they are equivalent in all material ways, there is no logical reason why they should be treated differently solely because one is in a visual format and the other is in an audible format. Indeed, there was evidence that software programs now exist that permit computers to electronically output audibly those words displayed on a computer in written form.

Some participants argued that voice mail messages are not public records because they are solely transitory in nature. Section 1-200(5), G.S., however, defines “public record” in pertinent part as “any recorded data or information relating to the conduct of the public's business . . . , whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.” Section 1-200(5) is part of the FOI Act and the Commission has primary jurisdiction to interpret and apply this provision of the Act. And it is clear that some voice mail messages contain recorded data or information that relate to the conduct of the public’s business, within the meaning of the definition of a “public record.” The PRA essentially concedes this point in footnote 16 in Schedule S-1; footnote 13 in Schedule M-1; and General Letter 98-1 p. 3, last paragraph. Furthermore, under §11-8a(c), G.S., the State Librarian and PRA may not authorize the destruction of any record that has administrative, fiscal, legal or historical value to the state.

4. There is no demonstrated need for the ruling.

Some participants argued that the proposed declaratory ruling is unnecessary because nothing suggests that current law is inadequate to address the use of e-mail and voice mail communications by public agencies. They claim the PRA’s guidelines now dictate the retention rules for these kinds of communications and there is no evidence to suggest these guidelines are being violated.

These participants go on to argue that the FOI Act is broad enough to encompass public records stored in electronic form and to encompass meetings held via electronic media. They assert that approval of the draft ruling would do nothing to clarify the law and would be inconsistent with the PRA’s directives, and thus would only serve to unnecessarily confuse and dismay (presumably) public officials.

Law. None applicable to this argument.

Analysis and Conclusions. We agree that the FOI law is clear and adequate to address the issues raised in the draft ruling. We do not agree that the PRA’s directives are clear or adequate with respect to voice mail. However, for the reasons stated in the Report of Counsel on this matter, we believe that this argument has merit.

5. The practical ramifications of the draft ruling would be costly, unduly

burdensome and against good public policy.

Some participants argued that the draft ruling, if adopted, would constitute a new unfunded state mandate. They claimed the draft ruling would require government to purchase new and expensive technology to retain and archive voice mail for long periods and in some instances permanently. Others made the same claim with respect to e-mail as well. Some asserted that the technology is currently unavailable with respect to voice mail messages. In addition, some participants argued that the draft ruling would result in an enormous increase in workload as a result of having to train personnel in the nuances of the ruling and have their personnel (including the need to hire additional personnel) interpret and transcribe voice mail messages. Moreover, they claimed that scarce resources would have to be spent to implement the draft decision – resources that would be better spent on the more critical needs of public agencies.

In this regard, the PRA and others asserted that many e-mails and voice mail messages do not relate to the conduct of the public’s business. They claimed that the PRA’s retention schedules, S-1 and M-1, recognize this by allowing for the deletion of transitory e-mails and most voice mails without rendering a public business determination on a case-by-case basis. The PRA also asserted that in her judgment and that of the State Librarian, the existing retention requirements in the above-referenced documents strike the appropriate balance in terms of preserving public records without unduly burdening public agencies.

Law. Section 1-200(5), G.S., defines “public record” as “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.”

Section 1-210(a), G.S., states in relevant part: “Each such public agency shall

keep and maintain all public records in its custody at its regular office or place of

business in an accessible place and, if there is no such office or place of business,

the public records pertaining to such agency shall be kept in the office of the clerk

of the political subdivision in which the agency is located or of the Secretary of

the State, as the case may be.”

Section 1-211(a), G.S., states in pertinent part: “[a]ny 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.”

Section 1-211(c), G.S., also states in pertinent part: “[o]n 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 Freedom of Information Act at the least cost possible to the

agency and to persons entitled to access to nonexempt public records under the

Freedom of Information Act.”

Sections 11-8 and 11-8a, G.S., provide that the State Librarian and his appointed

Public Records Administrator shall have the responsibility to develop and oversee the management of state and municipal records. As part of these management responsibilities, §11-8a(c), G.S., provides that “[I]f the State Librarian determines that. . . [certain] books, records, papers and documents are of no administrative, fiscal, or legal value, and the Public Records Administrator and State Archivist determine that they are of no historical value to the state, the State Librarian shall approve their disposal. . . .”

Glastonbury v. FOI Commission, 234 Conn. 704, 714 (1995).

Analysis and Conclusions. The draft ruling states explicitly that transitory messages do not have to be retained. Draft Ruling, page 5, penultimate paragraph. Opponents of the draft opinion generally misstate what the draft ruling says in this regard and it is widely believed that the proposed ruling requires that all voice mail messages be retained or transcribed. What the draft ruling actually says is “the answer to the question of whether e-mail and voice mail communications need to be retained depends on the nature and content of the communications. If agency equipment is being used for proper purposes, it is likely that a considerable number of such communications will fall into either the ‘less than permanent’ category or the ‘permanent’ category. Agencies must retain less than permanent (retained for a discreet period, as prescribed by the public records administrator) and permanent or permanent/archival e-mail and voice mail communications but do not have to retain ‘transitory messages.’ ” Id.

In addition, it is important to note that the draft ruling does not require the transcription of voice mail messages. The opponents of the draft ruling generally misstate its contents and assert that it requires all voice mail messages be transcribed. What the draft ruling actually says is:

“when a public agency is in the process of purchasing new technology (i.e., a new computer or voice mail system), attention should be paid to maximizing storage and ease of both retrieval and copying or duplication. See Conn. Gen. Stat. §1-211 concerning disclosure of computer-stored public records and the acquisition of systems that store and retrieve public records. Finally, agencies are advised to establish clear guidelines to be followed by agency personnel with regard to the retention and storage of e-mail and voice mail communications.

“Based on its own experience and expertise, the Commission is aware that few public agencies in Connecticut currently have access to voice mail systems that have the capability to retain significant numbers of voice mail messages for extended periods of time or to archive them onto an easily accessible medium. The Commission is likewise aware that many such public agencies do not have the financial resources to immediately convert their voice mail systems to those that possess such capabilities. Therefore, until such time as public agencies have access to voice mail systems with the capability of either long-term retention or archiving, the Commission advises public agencies to inform their personnel that upon receipt of voice mail communications that would fall into either the “less than permanent” or “permanent” categories, that they must manually record the general content of such communications on paper (including from whom and to whom the communication was addressed and date of such communication), and retain such written communications for the period prescribed by the public records administrator.”

In other words, because the draft ruling recognizes that most agencies currently do not possess the necessary technology and many of them cannot afford it, it merely advises public agencies that they should have their employees take notes of those voice mail messages that constitute public records and must be maintained for a period prescribed by the PRA, and which they are incapable of archiving, saving and retrieving electronically. Indeed, because both common sense and competent business practices require that records, in whatever form – paper or electronic—be kept of substantive matters that may have administrative, fiscal, legal or historical value, we believe that most agency personnel do this anyway. We believe that all competent and scrupulous public employees would make and keep such notes in these and similar situations involving important substantive information relating to the conduct of the public’s business.

Since the draft ruling essentially follows the PRA’s retention schedules, at least with respect to e-mail, logically it cannot place an additional burden on public agencies because they are already guided and directed by those schedules and General Letter 98-1 to maintain non-transitory messages as set forth in those documents. This position is further buttressed by the requirements of §11-8a(c), G.S., to the effect that records having administrative, fiscal, legal or historical value are not authorized to be destroyed. Because the law already requires public records (including those voice mail messages relating to the conduct of the public’s business) be retained as long as they possess the values set forth in §11-8a(c), to do so adds no greater burden on public agencies than those already prescribed by statute. Consequently, even if voice mails are transitory, individual determinations as to whether any voice mail messages should be retained must be addressed on a case-by-case basis first by each public agency, and then, in some cases, by the ultimate determination of the PRA and the State Librarian. These responsibilities and duties exist under the aforementioned statutory provisions. And the PRA cannot abrogate them by schedule or guidance.

Finally in this regard, although the public records retention and FOI laws are administered by different agencies, they share a common purpose and policy of effectuating a legislative intent to maintain open and accountable government to the greatest extent possible. Thus, while the burden and costs of effectuating such a purpose and policy may be an issue in some cases, in other cases, such as this, they are not. Here the legislature has spoken clearly. In the case of access to public records in §§1-200(5) and 1-210(a), G.S., and in the case of retaining public records having administrative, fiscal, legal or historical value in §11-8a(c), G.S., the burden and costs are simply not relevant to the implementation and enforcement of the purpose and policy underlying the aforementioned statutes. As stated by the Connecticut Supreme Court in Glastonbury v. FOI Commission, a case where the burden on public agencies in complying with the FOI Act was in issue, “[a]lthough the legislature’s narrowly tailored approach to the FOIA exclusions and exemptions may add a layer of complexity to agency administration, the legislature implicitly has decided that the associated costs are outweighed by the benefits derived from open government.” Id. at 714. We believe that neither the FOI Act nor the records retention statutes were enacted to make the work of public agencies more administratively convenient. Rather they were enacted to make government more open and accountable to the people such agencies serve. Consequently, the additional burden that the draft declaratory ruling allegedly would have placed on public agencies, even if true, is simply irrelevant and immaterial in this case.

6. E-mail and voice mail communication should be considered the

equivalent to a telephone call or face-to-face communication in which

no record exists.

Some participants argued that e-mail and voice mail are not intended as anything more than an unrecorded conversation or face-to-face conversation.

Law. Section 1-200(5), G.S., defines “public record” as “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.”

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 (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. Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. Each such public agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which the agency is located or of the Secretary of the State, as the case may be.”

Analysis and Conclusions. The fact is e-mail and voice mail messages are recorded; and to the extent they exist and constitute “public records,” the above-quoted portions of the FOI Act make them accessible to the public if not otherwise exempt. Indeed, the stated assumption that e-mail and voice mail are not intended to be recorded is simply not credible since both formats record what is communicated by the sender. Moreover, it would not be uncommon for a public official or employee to make a note of a telephone call or face-to-face conversation when that call or conversation deals with an important, substantive matter related to the conduct of the public’s business. Common sense and competent business practices would require it. Thus, this argument has no merit.

7. The draft ruling would require the creation of new records, a matter not

within the ambit of the FOI Act.

Some participants argued that by implication the draft ruling would require the creation of records of voice mail messages because such messages are by their nature not “ongoing” (presumably “ongoing” means to be kept for a period of time), but rather they are transitory within the meaning of that term as used by the PRA. They also argued that any decision as to what should be included in a note of a voice mail message is subjective and subject to misinterpretation.

Law. Section 1-200(5), G.S., defines “public record” as “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.”

Section 1-210(a), G.S., states in relevant part:

Sections 11-8 and 11-8a, G.S., provide that the State Librarian and his appointed Public Records Administrator shall have the responsibility to develop and oversee the management of state and municipal records. As part of these management responsibilities, §11-8a(c), G.S., provides that “[I]f the State Librarian determines that. . . [certain] books, records, papers and documents are of no administrative, fiscal, or legal value, and the Public Records Administrator and State Archivist determine that they are of no historical value to the state, the State Librarian shall approve their disposal. . . .”

Analysis and Conclusions. We agree, and the Commission has ruled many times, that the FOI Act does not require the creation of a public record (although the Commission has ordered the creation of minutes as a remedy for the violation of that portion of the Act). Consequently, the draft ruling does not require the creation of new records. E-mail and voice mail messages relating to the conduct of the public’s business are pre-existing public records recorded by electronic means. If not otherwise exempt, they must be disclosed under the FOI act during the period of their retention as established by the PRA under §§11-8 and 11-8a, G.S. The draft ruling merely advises public agencies that they should make a note of such messages if they do not have the means to store, archive and retrieve them in digital form, if and when they choose to delete the electronically recorded version of the message according to the required retention provisions of law. The fact that any decision as to what should be included in a note of a voice mail message is subjective and subject to misinterpretation is true. But it is also true that this may be the case in virtually every other situation in which words are being considered or acted upon by public officials and employees. For example, a secretary writes down on a telephone message form what was communicated on the phone and gives that form to his or her boss. Obviously, such messages are subjective and may have been misinterpreted. Consequently, this argument lacks merit.

8. The e-mail and voice mail meeting sections of the draft ruling do not apply to

single member public agencies.

The Department of Economic and Community Development (DECD) argued that the sections of the draft ruling which deal with meetings by means of e-mail and voice mail apply only with regard to multi-member public agencies, not single-member agencies, such as the Commissioner of DECD. It requested that the Commission make this point in any final declaratory ruling in this matter.

Law. Section 1-200(2), G.S., defines “meeting” in relevant part as “any hearing

or other proceeding of a public agency, any convening or assembly of a quorum

of a multimember public agency, and any communication by or to a quorum of a

multimember public agency, whether in person or by means of electronic

equipment, to discuss or act upon a matter over which the public agency has

supervision, control, jurisdiction or advisory power.”

Analysis and Conclusions. The Commission has often ruled that the “hearing or other proceeding” clause of §1-200(2), G.S., applies to single-member public agencies as well as multi-member public agencies because it does not include the term “multi-member” before the term “public agency,” as the next two clauses do.

9. Section 1-211(a), G.S., makes clear that an agency’s obligation to make

copies of computer-stored records is subject to a reasonableness limitation.

The Department of Environmental Protection (DEP) stated that the draft ruling makes no mention of the provisions of §1-211(a), G.S. It argued that that provision makes clear that a public agency’s obligation to make copies of computer-stored records is subject to a rule of reason. DEP interprets this to mean that before an inquiry as to whether a request for electronic communications or computer-stored records needs to be complied with, an initial inquiry must be made as to whether the request, search for and reproduction of such records are reasonable.

Law. Section 1-211(a), G.S., which states in pertinent part: “[a]ny 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.”

Analysis and Conclusions. Contrary to DEP’s assertion, the draft ruling does refer to §1-211(a). See draft ruling, page 6.

DEP’s interpretation of §1-211(a) is also clearly wrong. The only reference in that statute to reasonableness is the requirement that an agency provide on request a copy of a non-exempt, computer-stored public record on the requested media “if the agency can reasonably make such copy or have such copy made.” Thus, this argument is without merit.

10. There can be no meetings via e-mail and voice mail because there is no unity

of time and place.

The Lottery Corporation argues that there can never be a meeting, within the meaning of the FOI Act, by means of e-mail and voice mail because agency members are not at the same place at the same time.

Law. Section 1-200(2), G.S. defines meeting in pertinent part as:

FOI Commission Advisory Opinion #41.

Analysis and Conclusions. The Lottery Corporation cites no law for this proposition. However, prior to the advent of telephonic and video conferencing, and e-mail and voice mail communications, a number of court decisions required a unity of time and place for a meeting of a government body to legally take place. Since the advent of at least telephonic conference calls, the requirement of unity of place is no longer applicable. The Commission’s Advisory Opinion #41 (1980) makes this clear with respect to meetings under the FOI Act; and even courts today use video conferencing as part of their proceedings in some cases. Draft Declaratory Ruling #94, pages 7-9, now finds that unity of time is likewise no longer applicable because (1) although the new technology was not contemplated when the FOI Act was first enacted, §1-200(2), G.S., does contemplate meetings by electronic means; (2) the §1-200(2) definition of “meeting,” does not reference a unity of time or place requirement; and (3) without such a finding, unscrupulous or uninformed public officials could evade the open meetings provisions of the FOI Act at will. For these reasons, this argument lacks merit.

11. The State PRA and the State Librarian, not the FOIC, are charged by law

with determining the retention requirements for various categories of public

records.

This argument raises a pure question of law.

Law: Section 1-210(a), G.S., provides in relevant part:

Section 1-282, G.S., states: “[e]xcept as otherwise required by the State Librarian

or the Public Records Administrator in accordance with sections 11-8 and 11-8a,

each governmental agency in this state shall determine whether, and the extent to

which, it will create and retain electronic records and convert written records to

electronic records.”

Section 4-166(13), G.S., in pertinent part reads: “each agency statement of general applicability, without regard to its designation, that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency. The term includes the amendment or repeal of a prior regulation, but does not include (A) statements concerning only the internal management of any agency and not affecting private rights or procedures available to the public, (B) declaratory rulings issued pursuant to section 4-176 or (C) intra-agency or interagency memoranda. . . .”

Sections 11-8 and 11-8a, G.S., provide that the State Librarian and his appointed

Public Records Administrator shall have the responsibility to develop and oversee

the management of state and municipal records. As part of these management

responsibilities, §11-8a(c), G.S., provides that “[I]f the State Librarian determines

that. . . [certain] books, records, papers and documents are of no administrative,

fiscal, or legal value, and the Public Records Administrator and State Archivist

determine that they are of no historical value to the state, the State Librarian shall

approve their disposal. . . .”

Analysis and Conclusion. There is some merit to this argument.

First, the draft declaratory ruling does not dispute the exclusive jurisdiction of the State Librarian and PRA under §§11-8, 11-8a and 1-282, G.S., to determine the retention requirements for various categories of public records, including e-mail and voice mail records. See Draft Ruling #94, page 2, second paragraph. But as stated in the opening paragraph of the draft ruling, the FOIC has concerns that e-mail and voice mail communications can be utilized in ways that diminish public access to government – a matter over which the Commission has jurisdiction under the FOI Act. See §§1-205, 1-206 and 1-210(a), G.S. It is also important to note that of the five issues presented for consideration in the draft ruling, this is the only one the participants opposed to the draft ruling cite as beyond the Commission’s jurisdiction.

On the other hand, §11-8a(c), G.S., makes it clear that the State Librarian and PRA do not have unbridled discretion in making these determinations. They must base their determinations on whether the records under consideration have any administrative, fiscal, legal or (together with the State Archivist) historical value to the state. And these are some of the primary values underlying the access to public records provisions of the FOI Act. Thus, providing guidance to public agencies with respect to their responsibilities under that Act as to when and how access to e-mail and voice mail records must be granted is clearly a proper and appropriate function of this Commission.

In this regard, it should be noted that the retention and disposition schedules and guidance issued by the PRA, and introduced into evidence by her in these proceedings, were not promulgated as regulations and therefore were not subject to public input or legislative review, although they are statements of general applicability that implement, interpret and prescribe law and policy affecting private rights available to citizens under the access to public records provisions of the FOI Act. Consequently, they are not binding law, but rather must be construed as purely guidance to public agencies. Since citizen rights to access to public records are implicated, it again is proper and appropriate for the Commission to interpret and apply these schedules and guidance, in a proceeding in which interested persons may participate and from which they may appeal, consistent with the intent and purpose of all the relevant statutes, including the FOI Act. Although the PRA failed to promulgate her rules as regulations with the input and reviews provided by that process, nonetheless some participants to these proceedings criticized the Commission for not using the regulation-making process. Our declaratory ruling process, however, provided for the greatest amount of public participation with the right to judicial review, unlike the PRA’s process.

12. The draft ruling is a regulation which fails to meet the requirements of the

Uniform Administrative Procedure Act.

Some participants argued that it is either impermissible or inappropriate for the Commission to do what is proposed in the draft ruling by way of a declaratory ruling. Rather, they argued that what the Commission has proposed to do in the draft ruling must or should be done through a regulation-making process. That process requires public notice and input (which the Commission has done in these proceedings). It requires review by the Attorney General for legal sufficiency (notice of these proceedings was provided to the Attorney General, but he chose not to participate in them). It requires review by the legislature for compliance with legislative intent (three of the four partisan legislative caucuses participated in these proceedings). And it requires a fiscal impact statement (as noted herein, there would be no additional fiscal impact to comply with the draft ruling).

They further argued that the proposed ruling would have a substantial impact on the rights and obligations of public agencies when they appear before the Commission in the future, notwithstanding the explicit statements in the draft decision that it is intended to “provide guidance” and provides detailed “advice” to public agencies. They stated that the draft ruling would effectively establish rules that public agencies must follow and is not limited to resolving the issues raised by the hypothetical situation in the draft ruling. Thus they do not believe that the draft is limited to “specified circumstances,” as required for declaratory rulings under the UAPA, §4-176, G.S. and §1-21j-47 of the Commission’s regulations.

Law. Section 4-166(13), G.S., defines “regulation” as:

“each agency statement of general applicability, without regard to its designation, that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency. The term includes the amendment or repeal of a prior regulation, but does not include (A) statements concerning only the internal management of any agency and not affecting private rights or procedures available to the public, (B) declaratory rulings issued pursuant to section 4-176 or (C) intra-agency or interagency memoranda. . . .”

Section 4-176(a), G.S., sets forth the authority for a state agency to issue a

declaratory ruling as follows:

“Any person may petition an agency, or an agency may on its own motion initiate a proceeding, for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency.”

Section 1-21j-47 of the Regulations of Connecticut State Agencies

provides:

“Any person may petition the commission, or the commission may on its own motion initiate a proceeding, for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the commission’s jurisdiction. The petition shall conform to sections 1-21j-1 to 1-21j-46, inclusive, of the Regulations of Connecticut State Agencies, where applicable. Such petition shall be addressed to the commission at its principal office. The petition shall contain the name and address of the petitioner. The petition shall (1) state clearly and concisely the substance and nature of the petition; (2) identify the statute, regulation or order concerning which the petition is made; and (3) identify the particular aspect thereof to which the petition is directed. The petition for a declaratory ruling shall be accompanied by a statement of any supporting data, facts and arguments that support the position of the petitioner.”

Analysis and Conclusions. It is evident from §4-166(13), G.S., that a “regulation” does not include a “declaratory ruling” issued under §4-176, G.S., and §1-21j-47 of the Commission’s regulations. The question then remains, are these proceedings, the draft ruling and any final ruling by the Commission permitted under §4-176(a), G.S.

The answer is clearly yes. The draft ruling in the last paragraph of the first page states : “the Commission, pursuant to Conn. Gen. Stat. §4-176(a), considered on its own motion and agreed to issue a declaratory ruling as to whether and to what extent e-mail and voice mail utilized by public agencies are subject to the provisions of the FOI Act; and to the extent such communications are subject to the FOI Act, to provide guidance as to what factors public agencies ought to take into account in order to comply fully with the requirements and purposes of that act.” In addition, it listed on page 2 the five specific issues it was addressing in the draft opinion. These statements meet the criteria for a declaratory ruling under §4-176(a), G.S., in as much as they address “the applicability to specified circumstances [access to e-mail and voice mail messages] of a provision of the general statutes [§§1-200(5), 1-210(a),1-211,1-212, 1-225, G.S., dealing with the definition of public records, the right to inspect and copy public records, computer-stored public records and the open meetings provisions of the FOI Act, and their relationship to §11-8a, G.S., and other statutes] . . . on a matter within the jurisdiction of the agency [access to public records].”

In considering this argument, our use of a hypothetical solely for illustrative purposes seems to have created some confusion as to what the “specified circumstances” the draft ruling was addressing. This is regrettable.

It is interesting to note that the participants who objected to the Commission’s failure to use the regulation promulgation process, have not made the same arguments with respect to PRA’s unilateral issuance of retention schedules and General Letters. Perhaps if she had tried to issue these as regulations, public input and legislative and legal reviews would have clarified them with respect to the criteria she must apply under §11-8a(c), G.S., - i.e., consideration of the administrative, fiscal, legal and historical values of the contents of e-mail and voice mail messages.

In reality, the draft ruling was merely an attempt to apply the current law to the specified circumstances of e-mail and voice mail messages that constitute public records. The claim that the draft ruling was an impermissible attempt to expand the law is clearly not the case. Under the law of administrative agencies, no agency may expand the law. That is the sole function of the legislature and no one disputes this. By casting the draft ruling as expanding the law and an unfunded mandate, and arguing that the subject of the draft ruling must go through the political processes of regulation-making, we believe that some participants wanted to use their political leverage to achieve their goal of a less open government.

13. The Commission did not provide 30 days advance notice of the date written

arguments and proffers of evidence were due and of the date the hearing was

to commence. Consequently, the proceedings were procedurally flawed.

Analysis and Conclusions. There is no merit whatsoever to this argument. General notice of these proceedings was provided on or about November 5, 2002. Notice was given to all participants on November 21, 2003 that pre-hearing briefs and proffers of evidence were due by the close of business on December 19, 2003. An automatic extension of time until December 29, 2003 was granted to those participants requesting an extension for the filing of their briefs.

The Commission conducted the hearing in this matter starting on January 28, 2004 at 1:30 p.m., rather than at 9:30 a.m. due to inclement weather. All participants were advised of this possibility by telephone on January 27, 2004. The hearing continued on January 29, 2004, January 30, 2004 and March 3, 2004.

No participant to these proceedings alleged, let alone demonstrated or proved, prejudice with respect to the timing of written submissions or the dates on which the hearings were held in this matter.

14. The Commission lacks authority to offer advice.

Analysis and Conclusions. This assertion likewise has no merit whatsoever. No authority was cited for this proposition. The Commission, like every other public agency, has the right, indeed the duty, in the absence of governing legal authority to the contrary, to provide advice and guidance on those issues within its jurisdiction. The Commission has been providing this service throughout its entire history and is funded to provide educational and informational services to the people of this state.

15. The draft ruling violates due process of law because it does not explain the

basis of a finding utilizing the Commission’s own expertise and experience or

identify the experts relied on in the draft or make them available for

examination at hearing.

Some participants argued that the draft ruling makes a finding utilizing its own expertise and experience without indicating what that experience and special expertise is based on, so that the participants may intelligently respond to and produce rebuttal testimony to the claimed experience and expertise. This, they claimed, constitutes a violation of due process. The draft ruling states that based on the Commission’s own experience and expertise, few public agencies in Connecticut currently have access to voice mail systems that have the capability to retain significant numbers of voice mail messages for extended periods of time or to archive them onto an easily accessible medium and many such public agencies do not have the financial resources to immediately convert their voice mail systems to those that possess such capabilities. That is the only reference to the Commission’s own experience and expertise. Indeed, this was the testimony of several participants at the hearing in this matter.

Law. Feinson v. Conservation Commission, 180 Conn. 421, 428-29 (1980).

Grimes v. Conservation Commission, 243 Conn. 266, 274 (1997).

Analysis and Conclusions. The Feinson case, above, states:

“If an administrative agency chooses to rely on its own judgment, it has a responsibility to reveal publicly its special knowledge and experience, to give notice of the material facts that are critical to its decision, so that a person adversely affected thereby has an opportunity for rebuttal at an appropriate stage in the administrative proceedings.”

The Grimes case, above, says that in an administrative setting, it is a fundamental tenet of due process that the parties involved are provided with the facts upon which the agency acts so that they can prepare appropriate rebuttal testimony and intelligently respond at a hearing.

First, the facts upon which the draft ruling relies that are based upon the Commission’s experience and expertise are not “critical” to the draft ruling. Indeed, those facts are helpful to the opponents of the ruling because they recognize the realities and difficulties under which public agencies operate. It is also quite apparent that the Commission’s experience and expertise is based on its own circumstances as a public agency.

Second, the experience and expertise facts are merely “place holders” for the evidence which we expected would, and did, come forth from the testimony at hearing (which, of course, had not yet taken place when the draft was prepared). Any final declaratory ruling of the Commission would not, and could not, include this basis of fact. Rather, it had to be based on the evidence adduced at the hearing.

16. The Commission disqualified a Department of Children and Families witness

as an expert and rejected its Exhibit 1 for Identification Only as a full

exhibit.

Analysis and Conclusions. This is true. The record clearly shows that the witness did not qualify to offer expert testimony. Her oral testimony, however, was made part of the record in these proceedings for whatever it was worth. Because the witness was not a qualified expert and she could not attest to the scientific validity of Exhibit 1 for Identification Only, the Commission was within its rights not to allow that document as a full exhibit.

17. The Commission ought to withdraw the proposed ruling because it addresses

important issues that are more appropriately addressed after a proposed

workgroup comprised of agencies having cognizance over the subject matter

involved, and other state and municipal agencies, issues its

recommendations.

Analysis and Conclusions. DEP suggested that the Commission withdraw the proposed ruling because it addressed important issues that are more appropriately addressed after a proposed workgroup comprised of agencies having cognizance over the subject matter involved, and other state and municipal agencies, issues its recommendations.

Law. Section 4-176(a), G.S., sets forth the authority for a state agency to issue a

declaratory ruling as follows:

Analysis and Conclusions. Section 4-176(a), G.S., authorizes the Commission to issue a declaratory ruling concerning matters within its jurisdiction. Only the Commission has primary jurisdiction over provisions of the FOI Act, including what are public records and questions of public access to them. The Commission conducted as open and public a proceeding here as it could. The number and diversity of participants attest to this, as well as the public commentary and news coverage of it. All that this suggestion would accomplish is undue delay and a muddying of the jurisdictional and legal responsibilities of all concerned.

18. The Commission should propose legislation to require the tape recording of

substantive conversations rather than issue a declaratory ruling finding conversational e-mails and voice mails to be public records.

The Department of Motor Vehicles suggested that the Commission seek legislation to require the tape recording of substantive conversations rather than issue a declaratory ruling finding conversational e-mails and voice mails to be public records.

Law. Formal Opinion 2000-001 of the Attorney General (January 9, 2001),

addressed to the Commissioner, Department of Revenue Services (DRS). The

opinion notes that DRS tape records telephone conversations to and from its

employees. The relevant questions addressed are whether such tape recordings

constitute public records under the FOI Act and whether they must be disclosed

under that act. The answer to the first question is in the affirmative and the

answer to the second question is likewise in the affirmative, subject, of course, to

pertinent exemptions.

Analysis and Conclusions. Because we believe that existing law is adequate at this time, there is no need to seek additional legislation.

With regard to the Attorney General’s opinion, it is interesting to note that he concurred with the PRA that a 30 day retention period is valid based upon “administrative need.” It seems to us that there is no meaningful distinction between a tape recorded message and a voice mail recording, other than one may not be in a digital format. This clearly lends weight to the view expressed in the draft ruling that e-mail and voice mail messages that constitute public records must have a retention period based on administrative, fiscal, legal and historical values, as required by §11-8a(c), G.S.

19. The Commission should address the issues raised in the draft ruling on a

case-by-case basis, not through the means of a broad declaratory ruling.

Analysis and Conclusions. For the reasons set forth in our Report to the Commission on this matter, we believe that this argument has merit.