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FREEDOM OF INFORMATION
COMMISSION |
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In
the Matter of a Complaint by |
FINAL
DECISION |
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Philip
Peter Apter, |
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Complainants |
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against |
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Docket
#FIC 1999-262 |
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Office
of the Municipal Clerk, |
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Respondents |
January
12, 2000 |
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The above-captioned matter was heard as a contested case on August 3, 1999, 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.
[formerly §1-18a(1), G.S.]
2. It is found that, on May 21, 1999, the complainant was at the office of the respondent clerk, inspecting city land records that were located in a vault in the respondent clerk’s offices. It is further found that the complainant was using a hand-held battery-powered scanner (hereinafter “the scanner”) to copy such records.
3. It is found that an employee in the respondent clerk’s office stopped the complainant from using the scanner on such date.
4. By letter dated June 1, 1999, and filed with the Commission on June 4, 1999, the complainant appealed to the Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying him the opportunity to copy land records with the scanner.
5. Section 1-210(a), G.S. [formerly §1-19(a), G.S.], provides in pertinent part:
[e]xcept 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….
6. Section 1-212(a), G.S. [formerly §1-15(a), G.S.], provides in pertinent part:
[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.
7. It is found that public agency custodians of public records have the duty to physically preserve and protect such records and may take reasonable precautions in fulfillment of this duty.
8. The Commission takes administrative notice of General Letter 99-1, June 8, 1999, Office of the Public Records Administrator, which advises municipal clerks that the use of scanners on records stored in vaults may be denied, since §11-8-11(e)(2), Regulations of Connecticut State Agencies, provides that no materials other than records or record storage equipment shall be permitted in vaults, and since hand-held scanners could be damaging to records. The Commission also notes that, while such letter states that the use of scanners could be damaging to public records, it does not find that such use is indeed damaging or harmful to such records.
9. It is found that §11-8-11(e)(2), Regulations of Connecticut State Agencies, does not provide a basis to prohibit use of the scanner, since it is not a state statute, since compliance with such regulation can be affected by removing records from the respondent clerk’s vault for purposes of inspection and copying, and since the respondent clerk has a photocopying machine in such vault, in apparent contravention of such regulation.
10. It is found that the scanner is operated by movement over a document, and that such movement does not include contact with the document. It is also found that using the scanner does not require that record books be dismantled. It is further found that use of the scanner is less intrusive to records than use of a photocopying machine, which the respondents do permit, and which requires direct contact with such machine, and can involve the dismantling of books or the bending of book spines.
11. It is found that the respondents failed to prove that use of the scanner is harmful to the records of the respondents, and that the complainant proved that use of the scanner would not be more harmful to the records of the respondents than a photocopying machine.
12. The Commission takes administrative notice of two previous decisions, Docket #FIC1992-304, Danny P. Greenlaw and Rapid Appraisal against West Hartford Director of Assessments, and Docket #FIC1996-319, Stuart Groten against Town Manager, Town of Plainville; and Assessor, Town of Plainville, and distinguishes this matter under its facts.
13. It is concluded that nothing in the FOI Act prohibits a public agency from permitting a requester to use a scanner to make copies of public records as long as such device will not cause physical harm to such records.
14. It is also concluded that the right to inspect public records as set forth in §1-210(a), G.S. [formerly §1-19(a), G.S.], necessarily includes the right to hand copy such records. It follows, and it is therefore further concluded that, under the facts and circumstances of this case, such statute includes the right to make copies of such records by using the scanner.
15. It is therefore concluded that, in the absence of a specific determination of the Public Records Administrator that use of the scanner is harmful to public records, the respondent clerk violated §1-210(a), G.S. [formerly §1-19(a), G.S.], as alleged in the complaint.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondent clerk shall forthwith permit the complainant to use the scanner described above to copy the records at issue in this case.
Approved by Order of the Freedom of Information Commission at its regular meeting of
January 12, 2000.
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Melanie R. Balfour
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:
Philip Peter Apter
PO Box 440
South Windsor, CT 06074
Office of the Municipal Clerk, City of Hartford; and City of Hartford
c/o Atty. Denise Aguilera
Assistant Corporation Counsel
550 Main Street
Hartford, CT 06103
__________________________
Melanie R. Balfour
Acting Clerk of the Commission
FIC1999-262FD/mrb/01/13/00