FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

            

The above-captioned matter was heard as a contested case on July 17, 2007, at which time the complainant and the respondent 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 respondent is a public agency within the meaning of §1-200(1), G.S.

 

2.  By letter of complaint filed August 18, 2006 and amended on September 13, 2006, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by (a) denying his request for public records; (b) failing to provide public records in the requested computer format; (c) setting an improper fee for a copy of a computerized record; and (d) failing to consider whether a computer system adequately provided for the rights of the public under the Freedom of Information Act.  The complainant requested the imposition of civil penalties against the respondent.

 

3.  It is found that, by email dated July 18, 2006, the complainant requested that the respondent provide him with the following GIS (Geographical Information System) data, to be delivered on an external hard drive:

 

a.       “1998 uncompressed Orthophotography”;

b.      “2003 compressed and uncompressed Orthophotography”;

c.       “Most current GIS Geodatabase(s)”; and

d.      “Digital Terrain Model/Digital Elevation Model.”

 

 

4.  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.

 

5.  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. 

 

6.  Section 1-211(a), G.S., provides in relevant part:

 

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.

 

7.  Section 1-211(c), G.S., provides in relevant part:

 

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 Freedom of Information Act at the least cost possible to the agency and to persons entitled to access to nonexempt public records under the Freedom of Information Act. 

 

8.  Section 1-212, G.S., provides in relevant part:

 

     (b)  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….

 

     (c)  A public agency may require the prepayment of any fee required or permitted under the Freedom of Information Act if such fee is estimated to be ten dollars or more….

 

9.  It is found that the records requested by the complainant are public records within the meaning of §§1-200(5), 1-210(a) and 1-211(a), G.S.

 

10.  It is found that the complainant received the data referenced in paragraph 3a, above, but not on an external hard drive.

 

11.  It is found that the complainant received the compressed data referenced in paragraph 3b, above, but not on an external hard drive.

 

12.  It is found that the complainant did not receive the uncompressed data referenced in paragraph 3b, above, although that data was offered to the complainant, as described in paragraphs 13 through 16, below.

 

13.  It is found that the Town does not use the uncompressed 2003 orthophotography data referenced in paragraph 3b, above, and does not maintain it on its network. 

 

14.  It is found that to obtain the uncompressed 2003 data referenced in paragraph 3b, above, requires the respondent to retrieve a tape from storage, restore it on the network, and then copy it to the hard drive format requested by  the complainant.

 

15.  It is found that it is the Town’s policy not to deliver data on an external hard drive because of (a) the difficulties associated with the inability to retain a log file copy of the data produced; (b) the issue of taking responsibility for the requester’s personal property; and (c) the additional staff time needed.

 

16.  It is found, however, that the Town’s policy not to deliver data on an external hard drive does not mean that the Town cannot reasonably make such copy or have such copy made, and that the Town’s policy therefore conflicts with the policy of the state as expressed in §1-211(a), G.S.

 

17.  It is found that the respondent nonetheless offered to provide the uncompressed 2003 data referenced in paragraph 3b, above, upon receipt of a fee of $70 for its estimated staff time, with the complainant purchasing and delivering the hard drive to the respondent.

 

18.  It is concluded that prepayment is permitted by §1-212(c), G.S.

 

19.  It is found, however, that the respondent failed to prove that $70.00 represented costs permitted by §1-212(b), G.S.

 

20.  With respect to the data described in paragraph 3c, above, the “most current GIS Geodatabases(s),” it is found that the respondent offered to provide this data in CD format at a cost of $51.00, but did not offer to provide the data on an external hard drive.

 

21.  It is found that the respondent failed to prove that $51.00 represented a cost permitted by §1-212(b), G.S.

 

22.  With respect to the data described in paragraph 3d, above, the “Digital Terrain Model/Digital Elevation Model,” it is found that the respondent provided the requested data, but that the complainant contends that the data is incomplete and erroneous.

 

23.  It is found, however, that the respondent provided the data in its possession that was most responsive to the complainant’s request.

 

24.  It is also found that the data described in paragraph 3d, above, was not provided on the requested external hard drive.

 

25. The complainant additionally contends that the offered data is not useful to him unless he purchases costly software, and that therefore the respondent violated §1-211(c), G.S., by failing to consider, before acquiring the applicable computer system, whether the system adequately provided for the rights of the public under the FOI Act at the least cost possible to persons entitled to access to nonexempt public records.

 

26.  For reasons largely owing to the parties’ many requests for postponements of the hearing on this matter, the unavailability of certain witnesses on the scheduled date of the hearing on this matter, the complexity of the technological issues presented, and the one-year time constraint imposed by §1-206(b)(1), G.S., there is insufficient evidence on the record fairly to establish whether or not the respondent considered, prior to acquiring the computer system used for GIS data, whether the system adequately provided for the rights of the public under the FOI Act at the least cost possible to persons entitled to access to nonexempt public records.

 

27.  Therefore, the Commission declines in this case to decide whether the respondent violated §1-211(c), G.S., with respect to the acquisition of the computer system used for GIS data.

 

28. With respect to the respondent’s failure to provide the requested data on an external hard drive, it is found that the respondent failed to prove that he could not reasonably make such copy or have such copy made.

 

29.  It is therefore concluded that the respondent violated §1-211(a), G.S.

 

30.  The Commission notes that the Town has recently announced that it will post aerial photographs of the Town on the Town’s Web site, along with supporting information on the location and dimension of landmarks such as wetlands, flood zones, open space and property lines, and that the public should be able to download the GIS data for free.  The Commission also notes that the Town has announced that it will reduce the price for electronic copies of GIS data to $1.00 for each CD.  The Commission commends the Town for its efforts to ease public access to the town’s GIS data.

 

31.  Under the facts and circumstances of this case, the Commission declines to consider the imposition of civil penalties against the respondent.

 

 

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

 

            1.  The respondent shall provide the requested data on an external hard drive provided by the complainant at the complainant’s cost.  In determining the fee for providing such data, the respondent shall only charge for costs permitted by §1-212(b), G.S.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 8, 2007.

 

 

 

________________________________

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:

 

Stephen Whitaker

15 East Putnam Avenue, Suite 311

Greenwich, CT 06830

 

Boris Hutorin, Director,

Department of Information

Technology, Town of Greenwich

c/o Valerie Maze Keeney, Esq. and

John Wayne Fox, Esq.

Town of Greenwich

Law Department

101 Field Point Road

 PO Box 2540

Greenwich, CT 06836-2540

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2006-583FD/paj/8/14/2007