FREEDOM OF INFORMATION COMMISSION
|In the Matter of a Complaint by||REVISED FINAL DECISION|
|Taconic Data Corporation,|
|against||Docket #FIC 1996-564|
|Town Clerk, Town of Lisbon,|
|Respondents||January 13, 1999|
A final decision in the above-captioned matter was issued by the Commission on June 25, 1997. Thereafter, such decision was appealed to the Superior Court. On June 10, 1998, the court remanded this matter to the Commission for further proceedings consistent with its memorandum of decision. Taconic Data Corp. v. Town Clerk, Town of Lisbon and Freedom of Information Commission, No. CV970572143, Sup. Ct., Judicial District of Hartford/New Britain at Hartford (McWeeny, J.) (June 10, 1998) (hereinafter "Taconic v. Freedom of Information Commission").
On October 30, 1998, the parties in this matter were ordered to appear at the Commission for a pre-hearing conference on November 24, 1998. On November 23, 1998, the Commission notified the parties in this matter by facsimile transmission that the hearing officer would propose to the Commission that it issue an amended final decision in the above-captioned matter, which decision will order the respondent to provide the requested records in accordance with the fee provisions of §1-15, G.S., as contemplated by the order in Taconic v. Freedom of Information Commission. The parties were also notified that any party who wished to discuss this matter prior to the issuance of such proposed amended final decision was ordered to appear at the scheduled pre-hearing conference. At such pre-hearing conference, only the complainant in this matter appeared.
After consideration of the entire record and the courts memorandum of decision, the following facts are found and conclusions of law are reached:
1. The respondent is a public agency within the meaning of § 1-18a(1) [prior to October 1, 1997, 1-18a(a)], G.S.
2. It is found that by letter dated December 6, 1996, the complainant requested that the respondent provide it with an electronic copy of the grantor/grantee index for the period January 1, 1995 through June 30, 1996, inclusive ("requested record").
3. It is found that within a few days of the request, the respondent agreed to provide the complainant with the requested record at a fee of $1.00 per page pursuant to § 7-34a(a), G.S.
4. The complainant, appealed to the Commission by letter dated December 18 , 1996 and filed on December 19, 1996, alleging that the respondent violated the Freedom of Information ("FOI") Act by denying it access to 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.
6. It is found that COTT Systems ("COTT"), an Ohio based company, contracts with many Connecticut towns, and provides land records computer indexing services to the town clerks of such towns, including the respondent.
7. Section 1-19a(b), G.S., provides:
Except as otherwise provided by state statute, no public agency shall enter into a contract with, or otherwise obligate itself to, any person if such contract or obligation impairs the right of the public under this chapter to inspect or copy the agency's nonexempt public records existing on-line in, or stored on a device or medium used in connection with, a computer system owned, leased or otherwise used by the agency in the course of its governmental functions.
8. At the hearing on this matter, and notwithstanding the respondents offer to provide the complainant with the requested record upon payment of the fee provided under § 7-34a(a), G.S., the respondent contended that a portion of the requested record was exempt from disclosure under § 1-19(b)(1), G.S., as a preliminary draft, because such portion had not yet been corrected by COTT or audited.
9. It is found that in light of the respondents offer to provide the complainant with the requested records, the respondent has waived this claim of exemption and, in any event, the respondent failed to prove the applicability of such exemption in this case.
10. It is found that the requested record constitutes nonexempt public records of the respondent within the meaning of § 1-19a(b), G.S.
11. It is found that the information contained in the requested record is maintained in paper format by the respondent and in electronic format by COTT.
12. It is concluded that the requested record is a public record within the meaning of § § 1-19(a) and 1-19a, G.S., and that no contract between the respondent and COTT can impair the complainants right to copy the respondents non-exempt public records existing on-line in, or stored on a device or medium used by the respondent in the course of its governmental functions.
13. The respondent also contends that the requested record is not subject to the copying fee set forth in § 1-15(b), G.S., by virtue of § 1-19a(a), G.S., but rather it is subject to the copying fee set forth in § 7-34a(a), G.S.
14. Section 1-19a(a), G.S., provides in relevant part that:
Except as otherwise provided by state statute, the cost for providing a copy of such [non-exempt] data [maintained in a computer storage system] shall be in accordance with the provisions of section 1-15.
15. Section 7-34a(a), G.S., in turn, provides in relevant part that:
Town clerks shall receive, for making a copy of any document either recorded or filed in their offices, one dollar for each page or fractional part thereof, as the case may be.
16. It is found that § 7-34a(a), G.S. does not relate to a towns obligation to provide copies of electronically stored data.
17. Section 1-15(b), G.S., in relevant part provides:
[t]he fee for any copy provided 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 .
18. It is concluded that the fee provisions set forth in § 1-15, G.S., apply to the requested records, and, accordingly, the respondent may charge a fee consistent with such provisions, which fee may not exceed the towns costs in providing copies in the requested format, as provided in § 1-15(b), G.S.
19. It is therefore concluded that the respondent violated § § 1-15, 1-19(a) and 1-19a(a), G.S., when she failed to provide the complainant with a copy of the requested record at the copying fee set forth at § 1-15(b), 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 is hereby ordered to provide the complainant with the records requested, as described in paragraph 2 of the findings, above, upon the complainants payment of a fee calculated as described in paragraph 18 of the findings, above.
2. Henceforth, the respondent shall strictly comply with the provisions of § § 1-15, 1-19(a) and 1-19a(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of January 13, 1999.
Melanie R. Balfour
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:
Taconic Data Corporation
c/o Atty. Stuart Bear
Zeldes, Needle & Cooper
1000 Lafayette Blvd.
PO Box 1740
Bridgeport, CT 06601-1740
Town of Lisbon
c/o Atty. Raymond L. Baribeault, Jr.
2 Union Plaza
PO Box 1591
New London, CT 06320
Melanie R. Balfour
Acting Clerk of the Commission