FREEDOM OF INFORMATION COMMISSION
|In the Matter of a Complaint by||FINAL DECISION|
|James J. Smith,|
|against||Docket #FIC 1997-416|
|Town Clerk, Town of Union,|
|Respondents||May 27, 1998|
The above-captioned matter was heard as a contested case on February 24, 1998, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. At the hearing on this matter, the parties and the undersigned hearing officer agreed to remove the Town of Union as a party respondent in this case. The case-caption has therefore been amended to reflect this change.
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 §1-18a(1), G.S.
2. On October 7, 1997, the complainant requested of the respondent town clerk a copy of the audio tape recordings of three town meetings.
3. The complainant was subsequently informed that the cost for providing the requested copy would be $240, the cost for a private vendor to produce the copy because the Town of Union did not have the equipment to make the requested copy.
4. On November 5, 1997, the complainant offered the use of his audio tape equipment to make the requested copy, which offer was rejected in a follow-up letter dated November 17, 1997 from the respondent town clerk.
5. By letter dated December 18, 1997, postmarked December 19, 1997, and filed on December 23, 1997, the complainant appealed to the Commission alleging that the respondent town clerk had violated §§1-15 and 1-19, G.S.
6. In essence, the complainant contends that the respondent has effectively denied him access to the requested copy by imposing unreasonable costs therefor, having refused to consider less costly alternatives for producing the requested copy.
7. The respondent contends that she did not violate §§1-15 and 1-19, G.S., because she offered to provide the requested copy at the cost of reproduction by a private vendor and later offered to permit the complainant to play the subject tapes and make his own audio copies during the regular office hours of the respondent town clerk. The respondent further contends that she would not be willing to hook another recorder up to the towns machine in order to make the requested copies, as suggested by the complainant, because of her concern about the integrity of the tapes and fear that she would be subject to claims that she had altered the tapes.
8. Section 1-18a(5), G.S., defines public records 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, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.
9. Section 1-19(a), G.S., in relevant part, states:
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 inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15. 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.
10. It is found that the requested tapes are public records within the meaning §§1- 18a(5) and 1-19(a), G.S.
11. Section 1-15, G.S., does not set forth the maximum fee that a public agency may charge for a copy of a public record recorded by audio tape.
12. The Commission notes that it has had extensive experience in providing copies of tapes of its own meetings and hearings.
13. Based on its own technical experience, the commission takes administrative notice of the fact that the intended purpose of a tape of a meeting or hearing is to create a record that may be played, and playing the tape through output jacks connected to a recording device is no more likely to impair the integrity of the original tape or cause an alteration to the original tape than simply playing it through a devices internal speakers.
14. Based on its own technical experience, the commission takes administrative notice of the fact that the cost of a dual cassette tape recorder that can make copies of tapes is less than $100.00.
15. Based on its own technical experience, the commission takes administrative notice of the fact that copies of tapes made on such low-cost cassette tape recorders, or made by connecting a second tape recorder to the output of a tape recorder, are of acceptable quality.
16. Based upon its own experience, the Commission takes administrative notice that a copy of the requested tape recordings can be produced at substantially less than $240, without the need to engage a professional copying service, and, indeed, at a nominal cost.
17. It is found that the complainant at all times material to this complaint has been willing to provide his own tape recorder and cables to make a recording of the subject tapes, and that the cost of making such a recording therefore at a maximum would be the cost of the tape on which the copy is made.
18. It is concluded that, pursuant to §1-19(a), G.S., an agency may not have a rule that requires expensive copying methods over inexpensive ones, since such a rule diminishes or curtails the rights granted by §1-19(a), G.S., which include the rights granted by §1-15(a), G.S.
19. In keeping with the language of §1-15, G.S., and its intent, it is further concluded that the cost for a copy of a non-photocopy public record may not exceed the cost thereof to the public agency; and that a public agency may not charge a requester the amount equal to the cost to the agency of engaging an outside professional copying service unless such service is necessary or cost-effective in providing the copy as requested.
20. It is also found that the offer to permit the complainant to play the tape recordings in question and make his own audio copies does not comply with the complainants request for a copy of such tape recordings.
21. It is therefore concluded that the respondents violated §§1-15 and 1-19(a), G.S., by failing to provide promptly to the complainant a copy of the requested tape recordings at a cost not to exceed the cost thereof to the respondents.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondent town clerk shall forthwith provide the complainant with a copy of the requested audio tape recordings without any charge except for the cost of the audio tape itself.
Approved by Order of the Freedom of Information Commission at its regular meeting of May 27, 1998.
_________________________ Doris V. Luetjen 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:
James J. Smith 106 Old Brown Road Union, CT 06076
Town Clerk, Town of Union 1024 Buckley Highway Union, CT 06076
__________________________ Doris V. Luetjen Acting Clerk of the Commission