FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by |
FINAL DECISION |
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Complainants |
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against |
Docket #FIC 2002-018 | |
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Chief, Police Department, Town of Naugatuck; and Police Commission, Town of Naugatuck, |
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Respondent |
June 12, 2002 | |
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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 dated January 7, 2002 and filed with the Commission on January 11, 2002, the complainants appealed alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with the Commission’s Final Decision and Order issued in contested case docket # FIC 2001-384, Rick Smolicz and Connecticut Independent Police Union Local #2 v. Chief, Police Department, Town of Naugatuck; and Police Commission, Town of Naugatuck, (hereinafter “FIC 2001-384”), and specifically, failed to provide the complainants with the requested audiotapes.
3. It is found that the Commission held a hearing in FIC 2001-384 on September 19, 2001 following which the Hearing Officer issued a Hearing Officer’s Report (dated September 25, 2001) by transmittal dated October 5, 2001.
4. On November 14, 2001, the Commission adopted the Hearing Officer’s Report, described in paragraph 3, above, as the Final Decision in FIC 2001-384, and issued such Final Decision by transmittal dated November 19, 2001.
5. In finding 3 of the November Final Decision in FIC 2001-384 the Commission found that the complainants requested, by certified letters dated July 25, 2001, that the respondents provide them with access to listen, and if needed, a copy of the audiotapes of the respondent commission’s meetings for the months of February, March and July 2001.
6. In the November decision in FIC 2001-384 the Commission ordered the following with respect to the requested audiotapes:
1. Forthwith, the respondents shall provide the complainant with access to the audiotapes….
7. The issue before the Commission is whether the respondents failed to comply with the Commission’s Order to provide complainant Smolicz with access to the audiotapes.
8. It is found that on or about October 15, 2001 the respondents, through Lieutenant Bozinski, offered complainant Smolicz access to listen to the audiotapes or to get a copy of such tapes.
9. The Commission takes administrative notice of the evidence presented in contested case Docket #FIC 2001-496; James Cegielski, Rick Smolicz, John Hutt and Connecticut Independent Police Union Local #2 v. Chief, Police Department, Borough of Naugatuck; and Police Commission, Borough of Naugatuck (“FIC 2001-496”) with respect to the respondents’ position in providing complainant Smolicz with access to audiotapes.
10. Upon review of the evidence presented in this case and also the evidence presented in FIC 2001-496, it is found that the respondents charged complainant Smolicz a fee equivalent to time and a half the hourly wage rate of Lieutenant Bozinski to listen to the audiotapes or to obtain a copy of the audiotapes. Such rate would be between $36 and $41 per hour. Complainant Smolicz objected to the fee being charged.
11. With respect to the respondents’ attempt to charge complainant Smolicz a fee to listen to the audiotapes, it is concluded that such fee is not permitted and complainant Smolicz has a right to listen to the audiotapes without charge.
12. With respect to the respondents’ attempt to charge complainant Smolicz a fee equivalent to time and a half the hourly wage rate of Lieutenant Bozinski to obtain a copy of the audiotapes, it is found that the respondents failed to provide any evidence to support the need to charge an hourly wage rate for making a copy of the audiotapes at issue. The Commission takes notice of the fact that typically when copying an audiotape an individual simply inserts the original tape in a machine along with a blank tape and hits a button to start the copying. The machine performs the copying. At the end of the copying, the individual hits a stop button and removes the tape. If both sides of the blank tape are being copied, the individual making the copy will flip the tape to the blank side as required.
13. It is found that the fee of time and a half the hourly wage rate of Lieutenant Bozinski to listen to the tapes or to obtain a copy of the tapes is an unreasonable and unnecessary barrier to complainant Smolicz’s right to listen to and to obtain a copy of the audiotapes.
14. It is concluded that by charging complainant Smolicz time and a half the hourly wage rate of Lieutenant Bozinski to listen to the audiotapes or to obtain a copy of the audiotapes, the respondents failed to comply with the Commission’s order to provide complainant Smolicz with access to the audiotapes.
15. In their brief the respondents contend that pursuant to §1-212(b), G.S., the respondents were correct in charging complainant Smolicz the hourly rate of Lieutenant Bozinski.
16. However, §1-212(b), G.S., is inapplicable to the audiotapes at issue. Section 1-212(b), G.S., addresses copy fees with respect to disclosure of computer-stored data. Section 1-212(b), G.S., in relevant part, provides:
The fee for any copy provided in accordance with subsection (a) of section 1-211 [Disclosure of computer-stored public records] 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….[Emphasis added.]
17. 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. [Emphasis added.]
18. It is concluded that the respondents failed to prove that the audiotapes at issue constitute computer-stored data within the meaning of §§1-211 and 1-212, G.S.
19. At the hearing in this matter, the respondents further contended that complainant Smolicz did not want to pay for a copy of the audiotapes offered to him or listen to the tapes on his personal time. It is found that the issue of whether Smolicz, an employee of the respondent department and a union steward, must use his personal time to listen to the audiotapes is not one over which this Commission has jurisdiction. It is also found that at the hearing in this matter Smolicz indicated that he does not have a problem with using his personal time to listen to the audiotapes. What is clear is that complainant Smolicz has a right, as does any other individual, to listen to the audiotapes without charge, and there is no provision in the FOI Act that permits the respondents to charge him a fee simply to listen to such audiotapes.
20. Finally, contrary to the assertion of the respondents’ counsel at the hearing in this matter it is concluded that complainant Smolicz’s request for audiotapes in this case is different from his records requests FIC 2001-496 and contested case Docket #FIC 2001-545 Rick Smolicz and Connecticut Independent Police Union Local #2 v. Chief, Police Department, Borough of Naugatuck; and Police Commission, Borough of Naugatuck.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Forthwith, the respondents shall permit complainant Smolicz to a) listen to the audiotapes without charge if he wishes to listen to such tapes, and to b) obtain a copy of such audiotapes, if he desires a copy, at a fee equivalent to the actual cost to the respondents of supplying the blank audiotapes, or without charge if complainant Smolicz supplies the respondents with blank audiotapes.
Approved by Order of the Freedom of Information Commission at its regular meeting of June 12, 2002.
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Petrea A. Jones
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:
Rick Smolicz and Connecticut
Independent Police Union Local #2
c/o E. Stephen Briggs, Esq.
2 Hickory Hill Way
West Granby, CT 06090
Chief, Police Department, Town
of Naugatuck; and Police Commission,
Town of Naugatuck
c/o Steven A. Ouellette, Esq. and
William J. Ward, Esq.
Ouellette, Deganis, Gallagher & Ward
143 Main street
Cheshire, CT 06410
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Petrea A. Jones
Acting Clerk of the Commission
FIC/2002-018/FD/paj/6/17/2002