FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on April 11, 2005, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.   The matter was consolidated for hearing with docket #FIC 2004-464, Ulrike Klueh v. Director, FOI Office, State of Connecticut, University of Connecticut Health Center; and docket #FIC 2004-496, Ulrike Klueh v. Director, FOI Office, State of Connecticut, University of Connecticut Health Center.  On the hearing officer’s own motion, the respondent named by the complainant has been changed to reflect the actual respondent, who personally appeared at the hearing and was represented by counsel, and the case caption has been changed accordingly.

 

            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 §1-200(1), G.S.

 

2.  By letter of complaint filed October 6, 2004, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying him the right to scan stapled records.   

 

 3.  It is found that on September 30, 2004, the complainant visited the respondent’s office, reviewed various records, and began scanning the documents using a battery-operated portable scanner that required individual sheets to be fed through a set of rollers in order to be copied.  It is also found that the scanner’s feeding mechanism required stapled pages to be unstapled and fed separately.

4.  It is found that the respondent refused to remove, and prohibited the complainant from removing, staples from the respondent’s records, and therefore effectively prohibited the complainant from making copies with the portable scanner described in paragraph 3 of the findings, above.

 

5.  Section 1-200(5), G.S., provides:

 

“Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, 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:

 

Except 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.  Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. 

 

7. Section 1-212(g), G.S., provides:    

 

Any individual may copy a public record through the use of a hand-held scanner.  A public agency may establish a fee structure not to exceed ten dollars for an individual to pay each time the individual copies records at the agency with a hand-held scanner.  As used in this section, “hand-held scanner” means a battery operated electronic scanning device the use of which (1) leaves no mark or impression on the public record, and (2) does not unreasonably interfere with the operation of the public agency. 

 

8.  It is found that the records that the complainant sought to copy with his portable scanner are public records within the meaning of §§1-200(5), 1-210(a),  and 1-212(g), G.S.

9.  The respondent maintains that the complainant’s portable scanner is not a “hand-held scanner’ within the meaning of §1-212(g), G.S., because (a) the scanner rests on a table or flat surface, and thus is not literally “hand-held;” (b) the respondent believes that the device has a risk to mark or leave an impression on the records; (c) the respondent believes that any device that pulls the original through a mechanism has a higher risk to mark the page than one in which the paper sits on a flat bed and doesn’t move; (d) the General Assembly’s intent in passing Public Act 02-137 §2 was to permit a handheld device that would be passed over a page or section of a page, thus requiring no removal of staples; and (e) removing staples unreasonably interferes with the operation of the respondent’s office, because removing staples can result in files in which documents are improperly rearranged.

 

            10.  It is found the complainant’s portable scanner, known as a “Visigo A4” scanner, model PS464, does not leave a mark or impression on the public record within the meaning of §1-212(g), G.S.

 

11.  It is found that the complainant’s portable scanner is a battery operated electronic scanning device within the meaning of §1-212(g), G.S.

 

12.  The Commission takes administrative notice of the fact that staples often must be removed from public records in order to copy them, whether by use of a hand-held scanner or any other copying device.

 

13.  It is therefore found that the necessity of removing staples does not unreasonably interfere with the operation of the respondent’s office.

 

14.  Consequently, it is concluded that the complainant’s portable scanner falls within the definition of “hand-held scanner” in §1-212(g), G.S.

 

15.  Finally, it is found that the respondent offered no evidence concerning the legislative history or circumstances surrounding the enactment of Public Act 02-137 §2 that contradicts the plain meaning of §1-212(g), G.S. 

 

16.  It is concluded that the respondent violated §1-212(g), G.S., by prohibiting the complainant from using his hand-held scanner to copy public records. 

 

 

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

 

            1.  Henceforth the respondent shall strictly comply with the requirements of §1-212(g), G.S.  Specifically, the respondent shall permit the complainant to make copies of public records using any hand-held scanner that falls within the definition set forth in §1-212(g), G.S.  The respondent shall remove, or permit the complainant to remove, staples that interfere with the operation of the scanner.  The respondent may not charge for the removal of staples, but may establish a fee structure consistent with §1-212(g), G.S.

Approved by Order of the Freedom of Information Commission at its regular meeting of September 28, 2005.

 

________________________________

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:

 

Don Kreutzer

University of Connecticut Health Center

263 Farmington Avenue

Farmington, CT 06030

 

Assistant Dean,

Administration and Special Projects,

State of Connecticut,

University of Connecticut Health Center

c/o William N. Kleinman, Esq.

Assistant Attorney General

University of Connecticut Health Center

263 Farmington Avenue

Farmington, CT 06030-3803

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-463FD/paj/9/29/2005