Docket #FIC 1996-351
June 25, 1997

In the Matter of a Complaint by Taconic Data Corporation, Complainant
Assessor, Town of Colchester, Respondent

The above-captioned matter was heard as a contested case on May 8, 1997, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. Docket #FIC 1996-353, Taconic Data Corporation v. Assessor, Town of Franklin, was consolidated with the above-captioned matter for purpose of hearing.

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 1-18a(a), G.S.

2. It is found that by letter dated June 6, 1996, the complainant requested that the respondent provide it with an electronic copy of the respondent’s property data characteristics information, preferably on 3.5 inch diskette or 9 track tape in ASCII fixed length format ("requested record").

3. It is found that the respondent, by letter dated June 18, 1996, informed the complainant that due to staff shortages and problems with his computer system he was unable to comply with the request at that time, however, he anticipated he could provide the requested record in approximately eight to ten months.

4. The complainant appealed to the Commission by letter dated July 3, 1996 and filed on July 9, 1996, alleging that the respondent violated the Freedom of Information ("FOI") Act by denying it a copy of the requested records.

5. It is found that by letter dated March 14, 1997, the complainant requested that the respondent "not send us any new data at this time". It is found that such request was not a retraction by the complainant of its record request now at issue in this appeal, and as described in paragraph 2 of the findings, above.

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6. Section 1-15(a), G.S., provides that "[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record."

7. It is found that the requested record is a public record within the meaning of 1-18a(d) and 1-19(a), G.S.

8. Section 1-19a(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 this chapter, 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 1-15.

9. Section 1-15(b), G.S., in turn, provides in relevant part:

The fee for any copy provided in accordance with subsection (a) of section 1-19a shall not exceed the cost thereof to the public agency. In determining such costs for a copy, other than 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

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contractor provides the agency with computer storage and retrieval services.

10. It is found that the requested record constitutes nonexempt data contained in the public records maintained by the respondent in a computer storage system, within the meaning of 1-19a(a), G.S.

11. It is found that by letter dated April 22, 1997, the respondent agreed to provide the complainant with the requested record at a cost of $1,800, such cost representing the amount being charged by an outside computer consultant ("consultant") to provide the respondent with the requested record.

12. The complainant contends that the $1,800 fee is excessive and includes charges for work not necessary to provide a copy of the requested record; that other similarly situated towns, to which it has directed similar records requests, have provided the complainant with such records at a cost substantially less than $1,800; that the complainant could with one command copy the data, or alternatively the respondent could be assisted or coached through the steps necessary to copy the data; that Opal Data Technology ("OPAL"), a computer vendor, could copy the data at a fee substantially less than $1,800, and that OPAL has offered phone support to the complainant to assist him in copying the data requested.

13. The respondent contends that he does not have sufficient computer skills to himself provide the complainant with a copy of the requested record; that OPAL is affiliated with Sabre Systems and Services ("SABRE"), a company with whom the town of Colchester has an existing adversarial relationship, and with whom the respondent does not want to associate; and that he is concerned that the SABRE software he uses, which is protected proprietary information, be not included in any copy of the requested record he provides to the complainant.

14. It is found that approximately 15 similarly situated towns have been able to provide the complainant with the requested record for a minimal fee. Accordingly, the Commission finds incredible the respondent’s position and testimony that he cannot provide the complainant with a copy of the requested record unless he retains the services of the consultant at a fee of $1,800.

15. It is also found that under the facts and circumstances of this case, the respondent can reasonably make a copy of the requested record without hiring the consultant at a fee of $1,800.

16. Further, it is found that the $1,800 fee is not in accordance with the fee provisions of 1-15(b), G.S.; that the consultant’s services are not "necessary" to provide

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the copying as requested, within the meaning of 1-15(b)(2), G.S.; that the consultant does not at present provide the respondent with computer storage and retrieval services, within the meaning of 1-15(b)(4), G.S.; and that a reasonably competent person would be capable of complying with the complainant’s request as described in paragraph 2 of the findings, above.

17. It is therefore, concluded that the maximum permissible fee to be charged under the facts and circumstances of this case is that as set forth at 1-15(b)(1) and 1-15(b)(3), G.S.

18. It is further, concluded that the respondent violated 1-15(a), 1-15(b), 1-19(a) and1-19a G.S., when he failed to provide the complainant with a copy of the requested record promptly, and when he requested that the complainant pay the $1,800 fee not permitted under 1-15(b), G.S.

19. The Commission, in its discretion, declines to impose a civil penalty 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 respondent shall provide the complainant with a copy of the requested record, for which he may charge a fee of no more than that set forth in 1-15(b)(1) and 1-15(b)(3), G.S.

2. Henceforth, the respondent shall strictly comply with the provisions of 1-19(a), 1-19a and 1-15(b), G.S.

3. This decision should not be construed as requiring the respondent to use any particular vendor in complying with the provisions of 1-19a(a) and 1-15(b), G.S. However, this Commission will not sanction unreasonably high fees under 1-15(b), G.S., when the evidence and common sense dictate that copies can easily be provided at a much lower cost. To hold otherwise would be to permit public agencies to defeat the letter and intent of 1-15(b), G.S., and the entire open records portion of the FOI Act.

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Approved by Order of the Freedom of Information Commission at its regular meeting of June 25, 1997.

Elizabeth A. Leifert
Acting Clerk of the Commission

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Taconic Data Corporation
c/o Stuart Bear, Esq.
Zeldes, Needle & Cooper
1000 Lafayette Boulevard
PO Box 1740
Bridgeport, CT 06601-1740

Assessor, Town of Colchester
c/o Kevin M. McGlinchey, Esq.
Shipman & Goodwin
One American Row
Hartford, CT 06103-2819

Elizabeth A. Leifert
Acting Clerk of the Commission
FIC 1996-351/FD/eal/06301997