FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
|
In the Matter of a Complaint by
|
FINAL DECISION
|
|
|
|
|
|
Complainants
|
|
|
|
against
|
|
Docket
#FIC 2002-240 |
|
Commissioner, State of Connecticut,
Office of Health Care Access; and
State of Connecticut, Office of Health
Care Access, |
|
|
|
Respondents
|
April 23, 2003 |
|
|
|
|
|
The above-captioned matter was
heard as a contested case on September 30, 2002, at which time the
complainants and the respondents appeared and presented testimony, exhibits
and argument on the complaint. For
purposes of hearing, this case was consolidated with Docket #FIC 2002-209; John
J. Farrell v. Commissioner, State of Connecticut, Office of Health Care
Access; and State of Connecticut, Office of Health Care Access.
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. It is found that, by letter
dated May 9, 2002, the complainants requested that the respondents provide
them with electronic spreadsheet copies of several schedules from the
twelve-month filings of all Connecticut acute care hospitals. Specifically, the complainants requested schedules 199, 200,
201, 202, 203, 300, 401, S10, U6M, UCA and UCT [hereinafter “the requested
records”].
3. It is found that, by letter
dated May 15, 2002, the respondents informed the complainants that the
requested records could not be provided in electronic spreadsheet format, but
could be provided on paper.
4. By letter of complaint dated
May 22, 2002, and filed with the Commission on May 24, 2002, the complainants
appealed, alleging that the respondents violated the Freedom of Information
[hereinafter “FOI”] Act by denying them copies of the requested records in
electronic spreadsheet format.
5. Section 1-200(5), G.S., in
relevant part, defines “public records” as follows: “any recorded data
or information relating to the conduct of the public's business prepared,
owned, used, received or retained by a public agency, …whether such data or
information be handwritten, typed, tape-recorded, printed, photostated,
photographed or recorded by any other method.”
6.
Section 1-210(a), G.S., provides, in relevant 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 (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….”
7.
Section 1-211, G.S., further provides:
“(a) Any public agency which maintains public records in a
computer storage system shall provide, to any person making a request
pursuant to the [FOI] 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.
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 the Freedom of Information Act 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.
(c) On 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 [FOI]
Act at the least cost possible to the agency and to persons entitled to
access to nonexempt public records under the [FOI] Act.
In meeting its obligations under this subsection, each state public
agency shall consult with the Department of Information Technology as part
of the agency's design analysis prior to acquiring any such computer
system, equipment or software…The provisions of this subsection shall
not apply to software modifications which would not affect the rights of
the public under the [FOI] Act.”
8. Section 1-212(b), G.S.,
provides in relevant part:
“The fee for any copy provided in
accordance with subsection (a) of section 1-211 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;
(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;
(3) The actual
cost of the storage devices or media provided to the person making the
request in complying with such request; 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….”
9. It is found that the
respondents maintain the requested records and such records are public records
within the meaning of §§1-200(5), 1-210(a) and 1-211(a), G.S.
10. It is found that, prior to the respondents’ acquisition of
a new computer system in 1999, the respondents were able to provide copies of
schedules from the acute care hospital twelve-month filings in electronic
spreadsheet format to requesters. The
respondents state that they believe the current computer system is not capable
of providing the requested records in electronic spreadsheet format, but
rather only in paper or HTML format.
11. It is found that the respondents obtained an estimate from
their computer contractor that, in order to accommodate the complainants’
request, the respondents would have to pay such contractor $14,800, to
reprogram the computer system. At
the hearing in this matter, the respondents contended that they would have
their computer system reprogrammed to allow for the provision of the requested
records in electronic spreadsheet format, if the complainants will prepay the
estimate of $14,800.
12. At the hearing in this matter, the respondents also contended
that they should not be required to program their computer system to meet the
specialized computer needs of each requester of public records.
13. It is found however, that the provision of public records in
electronic spreadsheet format is commonplace and is not a specialized need.
14.
It is also found that, in 1999, the respondents entered into a contract
which impairs the right of the public under the FOI Act 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.
Accordingly, it is concluded that the respondents violated §1-211(b),
G.S.
15.
It is further found that the respondents did not consider prior to
acquiring their new computer system in 1999 whether such system, its equipment
or software, adequately provides for the rights of the public under the FOI
Act at the least cost possible to the agency and to persons entitled to access
to nonexempt public records under the FOI Act when they contracted for their
current computer system. It is also found that the respondents failed to prove that
they consulted with the Department of Information Technology as part of the
agency's design analysis prior to acquiring its current computer system,
equipment or software. It is
further found that the software modifications in place since 1999 affect the
rights of the public under the FOI Act. Accordingly,
it is concluded that the respondents violated §1-211(c), G.S.
16.
It is further found that it is inconsistent with the FOI Act to compel
the complainants to pay for reprogramming a computer system that was obtained
in violation of the FOI Act.
17.
It is further found that the respondents failed to prove that the
estimate of $14,800 for reprogramming was the lowest obtainable estimate, and
such cost is incredible. It is further found that the respondents can reasonably
provide the complainants with a copy of the requested records in electronic
spreadsheet format, within the meaning of §1-211(a), G.S.
Accordingly, it is concluded that the respondents violated §1-211(a),
G.S., in this matter.
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 provide the complainants with a copy of the requested
records in electronic spreadsheet format, at no cost.
Approved by Order of the Freedom of Information
Commission at its regular meeting of April 23, 2003.
_______________________________________
Dolores E. Tarnowski
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:
District 1199, SEIU/AFL-CIO
c/o Grace Rollins, Research Analyst
Commissioner, State of Connecticut,
Office of Health Care Access; and
State of Connecticut, Office of Health
Care Access
c/o Eileen Meskill, Esq.
Assistant Attorney General
55 Elm Street, P.O. Box 120
Hartford, CT 06141-0120
_______________________________________
Dolores E. Tarnowski
Clerk of the Commission
FIC/2002-240/FD/abg/04/25/2003