FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

 

            The above-captioned matter was heard as a contested case on October 19, 2011, at which time the complainants and 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.      It is found that on April 14, 2011, the complainants made a request to the respondent for copies of:

 

            [a] all written or electronically transmitted correspondence sent to or from Christopher D. Bandecchi…[and]…

 

            [b] also specifically requesting any and all written or electronic   correspondence sent to Bandecchi by Mayor Jason L. McCoy.

 

3.      It is found that on April 14, 2011, the respondent acknowledged the complainants’ records request and informed them that they would review their request and respond as appropriate under the FOI Act.

 

4.      It is found that, subsequent to April 14, 2011, the respondent forwarded an invoice to the complainants in the amount of $950.00.  It is found that the respondent’s billing invoice indicated a $600.00 charge for “email retrieval” and a $350.00 charge for “email search and Pdf for FOI.”     

 

5.      It is further found that the respondent located 117 pages of emails responsive to the complainants’ request described in paragraph 2, above.

  

6.      By facsimile dated and filed on May 13, 2011, the complainants appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by charging them search and retrieval costs for copies of records responsive to their April 14^th request, described in paragraph 2, above.    

 

7.      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.

 

8.      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.

 

9.      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, including an electronic copy sent to the electronic mail address of the person making such request, if the agency can reasonably make any such copy or have any 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, as amended by Public Act 11-150.

 

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

 

11.  Section 1-212(a), G.S., also provides that the fee for any copy provided in accordance with the FOI Act by a municipal agency “shall not exceed fifty cents per page.”

 

12.  Additionally, §1-212(b), G.S., provides that:

 

(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….

 

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

 

14.  At the hearing, the complainants maintained that the respondent violated the FOI Act by charging them search and retrieval costs associated with their April 14^th request, and that the respondent failed to search for and provide all records responsive to their request.  The complainants acknowledged that the records described in paragraph 5, above, were responsive to their April 14^th request, but only with respect to the records requested in paragraph 2[b], above.  The complainants believed that the respondent located only the records exchanged between the Mayor and Mr. Bandecchi, and not all written or electronically transmitted correspondence sent to or from Mr. Bandecchi as described in paragraph 2[a], above.

 

15.  With regard to the respondent’s $950.00 charge, described in paragraph 4, above, the respondent claimed that he had to engage in programming-related functions in order to do the programming necessary to generate computer-stored documents responsive to the complainants’ request.  The respondent’s initial position was that, since he is a private attorney, he could charge for programming at his hourly rate as a private attorney.  Accordingly, the respondent calculated the $950.00 charge by multiplying his private hourly rate of $250.00 times 3.8 hours.  At the hearing, however, the respondent’s position had changed.  The respondent no longer believed that he could charge his private hourly rate, but rather, he could charge at his hourly pay of $11.00 for his position as mayor, and charge a total of $41.80 for the requested records.  

 

16.  It is found that immediately prior to the hearing, the respondent offered to provide the complainants with copies of the emails described in paragraph 5, above, with the option of paying the $41.80 charge described in paragraph 15, above, or at fifty cents per page as permitted under the FOI Act for copies of municipal records.      

 

17.  It is found that the respondent failed to prove that he performed “programming or formatting functions,” within the meaning of §1-212(b)(1), G.S.  Rather, it is found that the respondent engaged in “search and retrieval,” within the meaning of §1-212(b)(1), G.S.

 

18.  It is concluded that, under the FOI Act, the respondent was not permitted to charge his private hourly rate or the hourly pay for the mayor’s position.  Rather, the respondent was permitted to charge only the maximum permissible fee of fifty cents per page as set forth in §1-212(a), G.S.

 

19.  With regard to any records responsive to the request in paragraph 2[a], above, the respondent contended that he understood the complainants’ request to be only for records exchanged between the Mayor and Mr. Bandecchi as described in paragraph 2[b], above, and believed that the emails located were responsive to such request.  The respondent contended that he was not trying to withhold any records that could be disclosed under the FOI Act and were responsive to the complainants’ request. 

 

20.  The complainants maintained that their request clearly asked for all written or electronically transmitted correspondence sent to or from Mr. Bandecchi.  

 

21.  It is found that the complainants’ request is reasonably clear on its face.   

 

22.  It is found that the respondent failed to provide the complainants with copies of records responsive to their April 14^th request.

 

23.  It is therefore concluded that the respondents violated the disclosure provisions of §§1-210(a), 1-211(a) and 1-212, G.S. 

 

 

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

 

1.   The respondent shall forthwith provide to the complainants, free of charge, copies of the records described in paragraph 5 of the findings, above.

 

2.      The respondent shall forthwith undertake a diligent search to determine whether they maintain any records responsive to the complainants’ request for records described in paragraph 2[a] of the findings, above.  If records are located, the respondent shall promptly provide copies of such records to the complainants, free of charge.

 

3.      Henceforth, the respondent shall strictly comply with the disclosure requirements of §§1-210(a), 1-211(a) and 1-212, G.S.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 8, 2012.

 

__________________________

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:

 

Alexander Wood, Suzanne Carlson and the

Manchester Journal Inquirer

306 Progress Drive

P.O. Box 510

Manchester, CT  06045

 

Mayor, Town of Vernon

c/o Martin B. Burke, Esq.

130 Union Street

P.O. Box 388

Rockville, CT  06066

 

and

 

Harold R. Cummings, Esq.

Cummings, Lanza and Purnhagen, LLC

1610 Ellington Road

P.O. Box 667

South Windsor, CT  06074

 

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2011-247/FD/cac/2/8/2012