FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

John J. Farrell,

 

Complainant

 

 

against

Docket #FIC 2002-209

Commissioner, State of Connecticut,

Office of Health Care Access; and

State of Connecticut, Office of Health

Care Access,

 

 

Respondents

April 23, 2003

 

 

 

 

            The above-captioned matter was heard as a contested case on September 30, 2002, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, this case was consolidated with Docket #FIC 2002-240; Eleanor Prouty and New England Health Care Employees Union, District 1199, SEIU/AFL-CIO v. Commissioner, State of Connecticut, Office of Health Care Access; and State of Connecticut, Office of Health Care Access.

            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 April 19, 2002, the complainant requested that the respondents provide him with copies of the following records on diskette:  all hospital FY2001 Annual Reporting/Twelve month actual filing schedules; and all hospital chime reports (920 and 930).

 

            3.  It is found that, on April 22, 2002, the FOI compliance officer for the respondents telephoned the complainant and indicated on a message that the records described in paragraph 2, above, could not be provided on diskette, but could be provided on paper.

 

            4.  By letter of complaint dated May 1, 2002, and filed with the Commission on May 3, 2002, the complainant appealed, alleging that the respondents violated the Freedom of Information [hereinafter “FOI”] Act by denying him copies of the records described in paragraph 2, above, on diskette. 

 

            5.  It is found that, subsequent to the filing of the complaint in this matter, the respondents provided the complainant with copies of all hospital chime reports (920 and 930) on diskette.  Accordingly, the records at issue in this appeal are the hospital FY2001 Annual Reporting/Twelve month actual filing schedules [hereinafter “the requested records”].

 

6.  Section 1-200(5), G.S., in relevant part, defines “public records” as follows: “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.”

 

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

 

“[e]xcept 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….”

 

8.  Section 1-211, G.S., further provides:

“(a)  Any public agency which maintains public records in a computer storage system shall provide, to any person making a request pursuant to the [FOI] 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, 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 1-212.

b)  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 the Freedom of Information Act 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.

 

(c)  On and after July 1, 1992, before any public agency acquires any computer system, equipment or software to store or retrieve nonexempt public records, it shall consider whether such proposed system, equipment or software adequately provides for the rights of the public under the [FOI] Act at the least cost possible to the agency and to persons entitled to access to nonexempt public records under the [FOI] Act.  In meeting its obligations under this subsection, each state public agency shall consult with the Department of Information Technology as part of the agency's design analysis prior to acquiring any such computer system, equipment or software…The provisions of this subsection shall not apply to software modifications which would not affect the rights of the public under the [FOI] Act.” 

 

            9.  Section 1-212(b), G.S., provides in relevant part: 

 

“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….”

 

 

            10.  It is found that the respondents maintain the requested records and such records are public records within the meaning of §§1-200(5), 1-210(a) and 1-211(a), G.S.

 

11.  It is found that, prior to the respondents’ acquisition of a new computer system in 1999, the respondents were able to provide FY Annual Reporting/Twelve month actual filing schedules in diskette form to requesters.  The respondents state that they believe the current computer system is not capable of providing the requested records in diskette form, but rather only in paper or HTML format. 

 

12.  It is found that the respondents obtained an estimate from their computer contractor that, in order to accommodate the complainant’s request, the respondents would have to pay such contractor $14,800, to reprogram the computer system.  At the hearing in this matter, the respondents contended that they would have their computer system reprogrammed to allow for the provision of the requested records in diskette form, if the complainant will prepay the estimate of $14,800.

 

13.  At the hearing in this matter, the respondents also contended that they should not be required to program their computer system to meet the specialized computer needs of each requester of public records.

 

14.  It is found however, that the provision of public records in diskette format is commonplace and is not a specialized need. 

 

15.  It is also found that, in 1999, the respondents entered into a contract which impairs the right of the public under the FOI Act 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.  Accordingly, it is concluded that the respondents violated §1-211(b), G.S.

 

16.  It is further found that the respondents did not consider prior to acquiring their new computer system in 1999 whether such system, its equipment or software, adequately provides for the rights of the public under the FOI Act at the least cost possible to the agency and to persons entitled to access to nonexempt public records under the FOI Act when they contracted for their current computer system.  It is also found that the respondents failed to prove that they consulted with the Department of Information Technology as part of the agency's design analysis prior to acquiring its current computer system, equipment or software.  It is further found that the software modifications in place since 1999 affect the rights of the public under the FOI Act.  Accordingly, it is concluded that the respondents violated §1-211(c), G.S.

 

17.  It is further found that it is inconsistent with the FOI Act to compel the complainant to pay for reprogramming a computer system that was obtained in violation of the FOI Act. 

 

18.  It is further found that the respondents failed to prove that the estimate of $14,800 for reprogramming was the lowest obtainable estimate, and such cost is incredible.  It is further found that the respondents can reasonably provide the complainant with a copy of the requested records on diskette, within the meaning of §1-211(a), G.S.  Accordingly, it is concluded that the respondents violated §1-211(a), G.S., 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 respondents shall provide the complainant with a copy of the requested records on diskette, at no cost.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of April 23, 2003.

 

 

_______________________________________

Dolores E. Tarnowski

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:

 

John J. Farrell

J.J. Farrell Associates

288 Highland Avenue, P.O. Box 1156

Cheshire, CT  06410

 

Commissioner, State of Connecticut,

Office of Health Care Access; and

State of Connecticut, Office of Health

Care Access

c/o Eileen Meskill, Esq.

Assistant Attorney General

55 Elm Street, P.O. Box 120

Hartford, CT  06141-0120

 

 

_______________________________________

Dolores E. Tarnowski

Clerk of the Commission

 

 

 

FIC/2002-209/FD/abg/04/25/2003