FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Randall J. Carreira,
Complainant
against Docket #FIC 93-238
Stamford City and Town Clerk and Stratford Town Clerk,
Respondents March 9, 1994
The above-captioned matter was heard as a contested case on November 8, 1993, at which time the complainant and respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.
The issues raised concerning the subpoena duces tecum served by the complainant on Business Records Corporation (hereinafter "BRC"), and the resulting motion to quash filed by BRC with the Commission, are not dealt with in this decision because the issues have been rendered moot by virtue of the agreement reached by the complainant, respondents and BRC at the hearing on the contested case.
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 1-18a(a), G.S.
2. It is found that pursuant to 1-15 and 1-19a, G.S., the complainant made several requests of both respondents for computer tapes of their grantor/grantee land record indices (hereinafter "indices"), from January 1 through July 31, 1993 for the City of Stamford (hereinafter "Stamford"), and January 1, 1992 through June 30, 1993 for the Town of Stratford (hereinafter "Stratford").
3. It is found that the complainant last requested the indices from both respondents by certified letter dated September 7, 1993.
Docket #FIC 93-238 Page 2
4. It is found that the complainant was informed by both respondents that BRC is the vendor with whom each contracts for purposes related to the creation and storage of their paper, and computer or magnetic data records of all documents relating to land transactions in Stamford and Stratford.
5. It is found that both respondents informed the complainant that they would comply with his requests for the indices by contacting BRC to obtain price quotations for the cost of compliance.
6. It is found that the indices for the time periods requested are available from BRC at a cost of four cents per line.
7. It is found that by letters dated October 4, and November 4, 1993, BRC notified the respondents that it would cost two thousand two hundred forty dollars and sixty cents ($2,240.60), for BRC to provide the indices for the fifty-six thousand fifteen (56,015) grantor/grantee transactions recorded in Stratford, and one thousand six hundred eighteen dollars and eight cents ($1,618.08), to provide the indices for the forty thousand four hundred fifty-two (40,452) grantor/grantee transactions recorded in Stamford on magnetic disks as requested by the complainant.
8. By letter dated September 16, 1993, and filed with the Commission September 17, 1993, the complainant alleged that in the past BRC provided the indices at a cost of two hundred fifty dollars ($250.00) per computer tape. The complainant further alleged that BRC as the respondents' agent was frustrating his attempts to obtain copies of public records by failing to provide the indices at a reasonable price, in violation of 1-15 and 1-19a, G.S.
9. It is found that prior to August 1992 BRC's price for the computer data tapes comparable to those the complainant is now seeking was two hundred fifty dollars ($250.00) per tape. The charge of four cents per line is the price for compliance during the time period of the complainant's requests.
10. The respondents contend that the complainant has not established that the indices, in the computerized form requested, are public records within the meaning of 1-18a(d), G.S.
Docket #FIC 93-238 Page 3
11. It is found that the indices unquestionably relate to, and reflect the conduct of the public's business as recorded and retained by each of the respondents.
12. It is concluded that the indices are public records within the meaning of 1-15 and 1-18a(d), G.S.
13. It is further found that although the respondents' preferred method of receiving, retaining and using the indices at issue may be in paper or hard copy form, in accordance with 1-15(b) and 1-19a, G.S., the respondents have an obligation and the ability to provide the indices in the form requested by the complainant.
14. At the hearing on this matter, each of the respondents agreed to provide the complainant with copies of all indices responsive to the complainant's request which are presently available on computer disk at their offices. The cost to provide indices already on disks at the respondents' offices would then be minimal.
15. The respondents maintain that BRC's price of four cents per line for the computerized indices is in fact reasonable in light of the express language of 1-15(b), G.S., that the fee for providing any copy of the names of registered voters "... shall not exceed three cents per name ... or the cost thereof to the agency ... whichever is less."
16. Section 1-15(b), G.S., concerning the fees for copies of computer-stored records, states in relevant part that:
(b) The fee for any copy provided in accordance with subsection (a) of section 1-19a shall not exceed the cost thereof to the public agency....
17. Section 1-15(b), G.S., also sets forth the discrete criteria that can be included in determining "the cost thereof to the agency." Included among those criteria are:
(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; ... [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....
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18. Section 1-19a, G.S., concerning the disclosure of computer-stored records and contracts relating to such records, states in relevant part that:
(b) Except as otherwise provided by state statute, no public agency shall enter into a contract with, or otherwise obligate itself to, any person if such contract or obligation impairs the right of the public under this chapter to inspect or copy the agency's nonexempt public records existing on-line in, or stored on a device or medium used in connection with, a computer system owned, leased or otherwise used by the agency in the course of its governmental functions.
19. It is found that the issue in this case is not one of impairment of access, as the complaint has alleged, but rather one of the cost of copies.
20. It is further found that the standard for the cost of computer-stored public records is not whether the fee charged for copies is reasonable, but rather, the cost thereof to the public agency.
21. It is found that the fee that BRC would charge the complainant for compliance with his records request is the same price that BRC would charge the respondents if they were to request the same data in the computerized form sought by the complainant, in accordance with 1-15(b), G.S.
22. It is therefore concluded that BRC's price quotation of four cents per line to both respondents in response to their individual inquiries does not exceed the "cost thereof to [each] public agency," within the meaning of 1-15(b), G.S.
23. Although the fee that BRC will charge the complainant to provide the indices in the computerized form requested is exorbitant and inconsistent with charges incurred by other municipal agencies for similar data, it is nevertheless concluded that the respondents have not violated the provisions of 1-15(b), G.S., because they have met the criteria of 1-15(b)(2) and 1-15(b)(4), G.S.
The following order by the Commission is hereby recommended
on the basis of the record concerning the above-captioned complaint:
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1. The complaint is hereby dismissed.
2. The Commission, however, directs the respondents' attention to 1-19a(c), G.S., which states in relevant part that:
On or 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 [Connecticut's Freedom of Information Act ("FOIA")] at the least cost possible to the agency and to persons entitled to access to nonexempt public records under [FOIA]. [Emphasis added.]
3. Recognizing that the costs for the information requested in this case are indeed high, despite the fact that computers are designed to facilitate the flow of information at lower costs, the respondents are advised that in the future they must take the cost of providing indices and other public records into account when acquiring computer equipment and software.
4. While neither the Commission nor the Office of Information and Technology (hereinafter "OIT"), can impose a reasonableness standard on costs incurred for computer-stored public records, a copy of this order will be sent to OIT so that it can perform its obligation to monitor the calculation of the fees charged for computer-stored public records in an effort to implement the express legislative intent that "such fees [be] reasonable and consistent among agencies."
Approved by Order of the Freedom of Information Commission at its regular meeting of March 9, 1994.
Elizabeth A. Leifert
Acting Clerk of the Commission
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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:
Mr. Randall J. Carreira, Esq.
604 Federal Road
Brookfield, CT 06804
Stamford City and Town Clerk
c/o Barry Boodman, Esq.
Town Attorney's Office
888 Washington Boulevard
Stamford, CT 06901
Stratford Town Clerk
c/o Benjamin S. Proto, Esq.
Town Attorney
2725 Main Street
Stratford, CT 06497
Elizabeth A. Leifert
Acting Clerk of the Commission