FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        Final Decision

 

David Carr and Waterbury Republican-American,

 

                        Complainants

 

            against              Docket #FIC 92-364

 

State of Connecticut, Department of Revenue Services,

 

                        Respondent                  September 8, 1993

 

            The above-captioned matter was heard as a contested case on June 14, 1993, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

 

            After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

            1.  The respondent is a public agency within the meaning of 1-18a(a), G.S.

 

            2.  By letter dated November 24, 1992, the complainants requested that the respondent provide them with current records showing, by town, the total amount of each state tax collected.  The complainants requested that the computer-stored information be provided on certain computer media.

 

            3.  By letter dated December 1, 1992, the respondent notified the complainants that records of sales, use and conveyance taxes had been, and were still being made available; however, the respondent informed the complainants that it would not provide the records on computer media as requested.

 

            4.  In its December 1, 1992 letter, the respondent denied the complainants' request for records regarding income and corporate taxes claiming that it had no recorded data responsive to the complainants' request.

 

            5.  By letter dated December 8, 1992, and filed with the Commission on December 10, 1992, the complainants appealed to the Commission alleging that the respondent violated the Freedom of Information Act by failing to provide the requested records.

 

            6.  At the hearing in this matter the respondent contended that its records contained certain confidential data that are exempt from disclosure pursuant to 12-15(d), G.S.  Specifically, the respondent contends that confidentiality could be breached in instances where there are ten or fewer taxpayers in a particular

 

Docket  #FIC 92-364                            Page 2

 

town, paying a particular tax, so that one might conceivably deduce the identities of particular taxpayers.

 

            7.  Section 12-15, G.S., limits the disclosure of tax return information.  However, 12-15(d), G.S., does not prohibit the disclosure of tax return data in a form which cannot be associated with, or which cannot otherwise identify, directly or indirectly, a particular taxpayer.

 

            8.  It is found that tax return information in instances where there are so few taxpayers that one might be able to deduce the identity of a particular taxpayer is information protected within the meaning of 12-15(d), G.S.

 

            9.  With respect to the tax return information described in paragraph 8, above, it is concluded that the requested records are exempt from disclosure pursuant to 1-19(a) and 12-15(d), G.S.

 

            10.  It is found that no evidence was offered to establish the existence of any town which in fact contains ten or fewer taxpayers paying any particular tax.

 

            11.  In addition, the respondent conceded that its records contained certain nonexempt data responsive to the complainants' request.  However, the respondent contends that capturing the information on a town-by-town basis requires the design, development, testing and verification of computer programs for each tax type, with the exception of the sales tax.  It further contends that the costs associated with providing the information would be approximately $52,285 for business taxes alone, and such a substantial sum would necessitate prepayment by the complainant.

 

            12.  The complainants contend that the retrieval costs estimated by the respondent are needlessly expensive.

 

            13.  Section 1-19a(a), G.S., provides:

 

            Any public agency which maintains public records in a computer storage system shall provide, to any person making a request..., 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..., 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 1-15.

 

            14.  Section 1-15(b), G.S., provides in pertinent part that in determining the costs for a computer-stored record other than

 

Docket #FIC 92-364                                     Page 3

 

a printout, an agency may only include: (1) an amount equal to the hourly salary attributed to all agency employees engaged in providing the requested computer-stored 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.

 

            15.  Section 1-15(c), G.S., provides in relevant part that a public agency may require the prepayment of any fee required or permitted under the Freedom of Information Act if such fee is estimated to be ten dollars or more.

 

            16.  With respect to all requested records, except those described in paragraphs 8 and 9, above, it is found that these are public records subject to the disclosure provisions of 1-19(a), 1-19a(a), 1-15(b)(1) and 1-15(c), G.S.

 

            17.  With respect to the records described in paragraph 16, above, it is concluded that the respondent violated 1-19(a), 1-19a(a) and 1-15, G.S., when it denied the complainant's request for computer-stored public records.  It is further found that such denial was without reasonable grounds within the meaning of 1-21i(b), G.S.

 

            18.  With respect to the issue of cost, it is concluded that in the absence of evidence that the requested nonexempt records can be provided less expensively, the complainants have failed to prove that the respondents have violated any of their rights under the Freedom of Information Act.

 

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

 

            1.  The respondent shall, within fifteen days of the mailing of the notice of the final decision in this matter, provide the complainants with an affidavit attesting to, and identifying by town and tax category, all towns which contain ten or fewer taxpayers paying a particular tax.

 

            2.  The respondent shall forthwith, upon the payment of the estimated fee established under 1-15, G.S., provide the complainants with the requested information, on one of the  requested computer media, except with respect to information regarding those towns and tax categories identified in the affidavit required in paragraph 1 of this order.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 8, 1993.

 

                                                                 

                                    Debra L. Rembowski

                                    Acting Clerk of the Commission

 

Docket #FIC 92-364                                     Page 4

 

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:

David Carr and Waterbury Republican-American

389 Meadow Street

Waterbury, CT 06722

 

State of Connecticut, Department of Revenue Services

c/o Atty. Donna F. Haghighat

92 Farmington Avenue

Hartford, CT 06105 and

Asst. Atty. Gen. Richard K. Greenberg

110 Sherman Street

Hartford, CT 06105

 

                                                                 

                                    Debra L. Rembowski

                                    Acting Clerk of the CommissionFREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        Final Decision

 

David Carr and Waterbury Republican-American,

 

                        Complainants

 

            against              Docket #FIC 92-364

 

State of Connecticut, Department of Revenue Services,

 

                        Respondent                  September 8, 1993

 

            The above-captioned matter was heard as a contested case on June 14, 1993, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

 

            After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

            1.  The respondent is a public agency within the meaning of 1-18a(a), G.S.

 

            2.  By letter dated November 24, 1992, the complainants requested that the respondent provide them with current records showing, by town, the total amount of each state tax collected.  The complainants requested that the computer-stored information be provided on certain computer media.

 

            3.  By letter dated December 1, 1992, the respondent notified the complainants that records of sales, use and conveyance taxes had been, and were still being made available; however, the respondent informed the complainants that it would not provide the records on computer media as requested.

 

            4.  In its December 1, 1992 letter, the respondent denied the complainants' request for records regarding income and corporate taxes claiming that it had no recorded data responsive to the complainants' request.

 

            5.  By letter dated December 8, 1992, and filed with the Commission on December 10, 1992, the complainants appealed to the Commission alleging that the respondent violated the Freedom of Information Act by failing to provide the requested records.

 

            6.  At the hearing in this matter the respondent contended that its records contained certain confidential data that are exempt from disclosure pursuant to 12-15(d), G.S.  Specifically, the respondent contends that confidentiality could be breached in instances where there are ten or fewer taxpayers in a particular

 

Docket  #FIC 92-364                            Page 2

 

town, paying a particular tax, so that one might conceivably deduce the identities of particular taxpayers.

 

            7.  Section 12-15, G.S., limits the disclosure of tax return information.  However, 12-15(d), G.S., does not prohibit the disclosure of tax return data in a form which cannot be associated with, or which cannot otherwise identify, directly or indirectly, a particular taxpayer.

 

            8.  It is found that tax return information in instances where there are so few taxpayers that one might be able to deduce the identity of a particular taxpayer is information protected within the meaning of 12-15(d), G.S.

 

            9.  With respect to the tax return information described in paragraph 8, above, it is concluded that the requested records are exempt from disclosure pursuant to 1-19(a) and 12-15(d), G.S.

 

            10.  It is found that no evidence was offered to establish the existence of any town which in fact contains ten or fewer taxpayers paying any particular tax.

 

            11.  In addition, the respondent conceded that its records contained certain nonexempt data responsive to the complainants' request.  However, the respondent contends that capturing the information on a town-by-town basis requires the design, development, testing and verification of computer programs for each tax type, with the exception of the sales tax.  It further contends that the costs associated with providing the information would be approximately $52,285 for business taxes alone, and such a substantial sum would necessitate prepayment by the complainant.

 

            12.  The complainants contend that the retrieval costs estimated by the respondent are needlessly expensive.

 

            13.  Section 1-19a(a), G.S., provides:

 

            Any public agency which maintains public records in a computer storage system shall provide, to any person making a request..., 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..., 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 1-15.

 

            14.  Section 1-15(b), G.S., provides in pertinent part that in determining the costs for a computer-stored record other than

 

Docket #FIC 92-364                                     Page 3

 

a printout, an agency may only include: (1) an amount equal to the hourly salary attributed to all agency employees engaged in providing the requested computer-stored 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.

 

            15.  Section 1-15(c), G.S., provides in relevant part that a public agency may require the prepayment of any fee required or permitted under the Freedom of Information Act if such fee is estimated to be ten dollars or more.

 

            16.  With respect to all requested records, except those described in paragraphs 8 and 9, above, it is found that these are public records subject to the disclosure provisions of 1-19(a), 1-19a(a), 1-15(b)(1) and 1-15(c), G.S.

 

            17.  With respect to the records described in paragraph 16, above, it is concluded that the respondent violated 1-19(a), 1-19a(a) and 1-15, G.S., when it denied the complainant's request for computer-stored public records.  It is further found that such denial was without reasonable grounds within the meaning of 1-21i(b), G.S.

 

            18.  With respect to the issue of cost, it is concluded that in the absence of evidence that the requested nonexempt records can be provided less expensively, the complainants have failed to prove that the respondents have violated any of their rights under the Freedom of Information Act.

 

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

 

            1.  The respondent shall, within fifteen days of the mailing of the notice of the final decision in this matter, provide the complainants with an affidavit attesting to, and identifying by town and tax category, all towns which contain ten or fewer taxpayers paying a particular tax.

 

            2.  The respondent shall forthwith, upon the payment of the estimated fee established under 1-15, G.S., provide the complainants with the requested information, on one of the  requested computer media, except with respect to information regarding those towns and tax categories identified in the affidavit required in paragraph 1 of this order.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 8, 1993.

 

                                                                 

                                    Debra L. Rembowski

                                    Acting Clerk of the Commission

 

Docket #FIC 92-364                                     Page 4

 

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:

David Carr and Waterbury Republican-American

389 Meadow Street

Waterbury, CT 06722

 

State of Connecticut, Department of Revenue Services

c/o Atty. Donna F. Haghighat

92 Farmington Avenue

Hartford, CT 06105 and

Asst. Atty. Gen. Richard K. Greenberg

110 Sherman Street

Hartford, CT 06105

 

                                                                 

                                    Debra L. Rembowski

                                    Acting Clerk of the Commission