FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

            The above-captioned matter was heard as a contested case on July 20, 2011, and August 17, 2011, at which times the complainant and respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

 

            At the August 17, 2011 hearing, the complainant requested that the witnesses for the respondents be sequestered.  The hearing officer denied such request.

 

            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 July 15, 2010 (“July 15^th request”), the complainant made a request to the respondents for “[a]ny and all electronic (“email”) correspondence of any nature concerning Sergeant Andrew N. Matthews from January 2005 to the present.”

 

3.      It is found that, by letter dated July 21, 2010, the respondents acknowledged the receipt of the complainant’s July 15^th request, and asked the complainant to advise their office in writing of the specific search terms that he would like employed for this search, as well as the specific names of the individuals whose email accounts he would like searched. 

 

4.      It is found that, by letter dated August 11, 2010 (“August 11^th letter”), the complainant requested that the respondents search the following terms within the subject and body of emails and any documents attached to these emails:

 

“Andrew Matthews”, “Andy Matthews”, “Sergeant Andrew Matthews”, “Sergeant Andy Matthews”, “Sgt. Andrew Matthews”, “Sgt. Andy Matthews”, “President Andrew Matthews”, “President Andy Matthews”, “Attorney Andrew Matthews”, “Attorney Andy Matthews”, “A.M.”, “A. Matthews”, “Andrew Mathews”, “Andy Mathews”, “Risk Management”, “Problem Child”, “Disgruntled employee”, “Whistleblower”, and “Whistleblower Matthews”. 

 

It is also found that the complainant listed approximately 137 individuals whose email accounts he would like searched. 

 

5.      It is found that on or about October 1, 2010, the respondents forwarded an email request to the Department of Information Technology (“DOIT”) for the restoration of certain employees’ email accounts.

 

6.      It is found that, by letter dated October 18, 2010, having received no status update on the respondents search for records responsive to his request described in paragraph 4, above, the complainant contacted the respondents and informed them that, if they did not comply with his request by October 29, 2010, he would file a complaint with the Commission. 

 

7.      It is found that, by letter dated October 21, 2010, the respondents informed the complainant that DOIT processes requests for agency email accounts, and that they were awaiting a time estimate from DOIT as to when they could expect to receive a response.  It is also found that the respondents informed the complainant that they would notify him as soon as possible as to when a response was expected to be completed for all of the accounts identified by the complainant in his August 11^th letter.  In addition, it is found that the respondents informed the complainant that after the receipt of DOIT’s response, the respondents would need to conduct a search and review of responsive emails.    

 

8.      It is found that, by email dated November 29, 2010, the complainant contacted the respondents again informing them that he had yet to receive any documents.

 

9.      It is found that, by email dated December 1, 2010, the respondents responded to the complainant’s November 29^th email and informed him that DOIT was experiencing a significant backlog.  It is also found that the respondents reiterated to the complainant that they would advise him as soon as they have additional information on when they could expect production of the accounts by DOIT, and reminded him that once the records were delivered to them, they would still need to conduct a search and review of responsive emails.

 

10.  It is found that, by email dated January 19, 2011, the complainant once again requested that the respondents inform him of the status of their search and when it was anticipated that he would receive the requested records.

 

11.  It is found that, by email dated January 21, 2011, the respondents advised the complainant that they were still waiting email account production from DOIT for the majority of the email accounts requested by the complainant.  It is further found that, with respect to the accounts that they had already received from DOIT, the respondents informed the complainant that once they completed a search of those accounts using the terms that the complainant had provided to them in his August 11^th letter, except for the term “A.M.,” which would produce every email sent in the morning hours, the respondents would review the responsive records and provide the complainant with any records that were subject to disclosure.             

 

12.  By letter dated January 24, 2011, and filed January 31, 2011, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide him with copies of the requested records, described in paragraphs 2 and 4, above. 

 

13.  It is found that, subsequent to the July 20, 2011 hearing in this matter, by letter dated August 4, 2011 (“August 4^th letter”), the complainant further modified his records request by reducing the number of search terms and individuals whose email accounts he would like searched.  It is found that the number of search terms provided in his August 11^th letter, described in paragraph 4, above, was reduced from 19 to 13 terms, and the number of email accounts was reduced from 137 to 98 accounts.

 

14.  It is found that, by letter August 12, 2011, the respondents acknowledged the complainant’s August 4^th letter narrowing the scope of his request, and informed him that although the search terms have been narrowed, the limitations of the search functionalities of the computer system would produce a large volume of records that would likely not have any relevance to his request, but would still require the respondents to review and determine if the records are within the scope of his request.    

 

15.  Section 1-200(5), G.S., defines “public records or files” as:

 

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.

 

16.  Section 1-210(a), G.S., provides in relevant part that: 

 

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 . . . (3) receive a copy of such records in accordance with section 1-212.

 

17.  Section 1-212(a), G.S., provides in relevant part that “any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

18.  It is found that the records requested by the complainant are public records within the meaning of §§1-200(5), 1-210(a) and 1-212(a), G.S.

 

19.  The complainant contends that the respondents have failed to provide him with the requested records in a prompt manner, that the respondents have failed to provide a satisfactory reason for delaying a response to his records request, and that his request is not overly burdensome.

 

20.  With respect to the complainant’s claim that the records, described in paragraphs 2, 4 and 13, above, were not provided to him “promptly,” the Commission has held that the meaning of the word “promptly” is a particularly fact-based question.  In Advisory Opinion #51, In the Matter of a Request for Declaratory Ruling, Third Taxing District of the City of Norwalk, Applicant (Notice of Final Decision dated January 11, 1982), the Commission advised that the word “promptly,” as used in §1-210(a), G.S., means quickly and without undue delay, taking into consideration all of the factors presented by a particular request. 

 

21.  The advisory opinion goes on to describe some of the factors that should be considered in weighing a request for records against other priorities:  the volume of records requested; the time and personnel required to comply with a request; the time by which the person requesting records needs them; the time constraints under which the agency must complete its other work; the importance of the records to the requester, if ascertainable; and the importance to the public of completing the other agency business without the loss of the personnel time involved in complying with the request.

 

22.  The respondents contend that the process for responding to requests for computer-stored records, including the complainant’s requests, is extraordinarily time-consuming and burdensome given the limitations in technology for searching and reviewing computer-stored records, the substantial increase and complexity of record requests, the recent reorganization of the respondent Department of Public Safety (“DPS”) and DOIT,[1] and staffing shortages at DPS and DOIT.

 

23.  It is found that the respondents have a complex and highly technical multi-step procedure for responding to requests for computer-stored records. 

 

24.   It is found that the respondents do not maintain their computer-storage system, and must rely on DOIT for the restoration of email accounts.

 

25.  It is found that, once the respondents’ Legal Affairs Unit (“Legal Affairs”) receives a record request, it opens a ticket with the respondents’ Network Control Center.  Legal Affairs then forwards the request to the IT Manager with Legal Affairs with the ticket information and search terms, who then forwards the request to the respondents’ Computer Service Unit (“CSU”).  A CSU staff member then determines whether any of the requested email account contents are stored locally with the respondents in an employee’s account (for emails dated 2006 and earlier) or on the exchange server, and requests that DOIT restore the requested email accounts.  After it receives the respondents’ request for email account restoration, DOIT executes the email account restoration process and uploads the email account restored data onto a secure server to a dedicated workstation.  A staff member with the respondents’ CSU will then download the email restored data from DOIT’s secure server and perform a search of the restored files using the specific search terms provided by Legal Affairs.  The CSU staff member saves all positive matches on the search terms to external hard drives, which are then provided to Legal Affairs for further review.  It is found that Legal Affairs then prints out the emails and reviews the documents to determine whether any records are responsive to the request and whether any exemptions apply to a portion of or the entire document.

 

26.  It is found that the system that is currently in place for retrieving computer-stored records is not refined enough to readily zero in on those emails that might be responsive to a request for computer-stored records, and even utilizing specific search terms, the emails produced will contain variations of such terms resulting in emails that may not be responsive to a request.

 

27.  It is found that the respondents receive over 1000 record requests annually that are generally handled chronologically.  It is further found that there were two significantly large requests for computer-stored records received prior to the complainant’s request, which were still pending.  It is found that with respect to these two requests, DOIT had restored 17 employee email accounts, comprising of over 346 files and hundreds of thousands of emails, which still needed to be searched and reviewed. 

 

28.  It is found that with respect to the complainant’s request, at the time of the hearings in this matter, DOIT had restored seven email accounts consisting of thousands of emails that were placed on an external hard drive, which were provided to the respondents to apply the search terms provided by the complainant in his August 4^th letter.  It is further found that the respondents had not completed their application of the search terms, nor had Legal Affairs begun their review of the contents of emails. 

 

29.  The respondents testified that it would take approximately 72 weeks to restore the email accounts identified by the complainant in his modified August 11^th letter.  The respondents also testified that the broader July 15^th request would have taken considerably longer given that the respondents would have had to search all shared and assigned accounts for all their past and present employees. 

 

30.  It is found that a search solely of two employees’ emails named in the complainant’s modified requests, described in paragraphs 4 and 13, above, utilizing the search terms outlined in these requests, retrieved 56 files consisting of 16,000 emails. 

 

31.    It is found that the complainant’s request requires the respondents to restore and search a significant number of email accounts, and requires that the respondents review voluminous emails to determine whether any are responsive to his request or if any exemptions apply.  It is found that, as of the dates of the hearings in this matter, the respondents continued to work on a response to the complainant’s request as modified in his August 4^th letter. 

 

32.  It is further found that it is difficult for the respondents to generate the requested records more quickly given the limitations in technology for searching and reviewing computer-stored records, the increase and complexity of record requests, the agency reorganization of DPS and DOIT, and staffing shortages.   

 

33.  Based on the extraordinary facts and circumstances of this case, it is found that the respondents reasonably attempted to provide the complainant with the information that he sought.  It is further found, however, that the respondents failed to provide the complainant with any responsive documents described in paragraph 28, above.   

 

34.  It is concluded, therefore, that the respondents violated the FOI Act in this matter.

 

 

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

                                                                       

            1.  The respondents are ordered to provide the complainant with copies of any records responsive to his request on a rolling basis, or otherwise inform the complainant in writing of the results of their continuing search.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of November 16, 2011.

 

__________________________

Cynthia A. Cannata

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:

 

Andrew Matthews

P.O. Box 143

Willington, CT  06279

 

Commissioner, State of Connecticut, Department of Public Safety; and

State of Connecticut, Department of Public Safety

c/o Terrence M. O’Neill, Esq.

Assistant Attorney General

Office of the Attorney General

110 Sherman Street

Hartford, CT  06105

 

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

FIC/2011-052/FD/cac/11/16/2011