FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Stephen Whitaker,  
  Complainant  
  against   Docket #FIC 2005-431

Jim Lash, First Selectman,

Town of Greenwich; and

Board of Selectmen,

Town of Greenwich,

 
  Respondents August 9, 2006
       

           

The above-captioned matter was heard as a contested case on November 8, 2005, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The respondents submitted for in camera inspection the two documents described in paragraph 8 of the findings, below.

 

            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.  By letter of complaint filed September 9, 2005, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by (a) denying his request for public records; and (b) approving a schedule for fees for electronic copies of records beyond what is permitted by statute.  The complainant requested the imposition of civil penalties against the individually named respondent.

 

3.  It is found that, by letter dated August 11, 2005, the complainant requested from the respondents the opportunity to inspect the following records, and to identify some records for copying at the time of inspection:

 

a. All written communications to the Town of Greenwich and from the Town of Greenwich which mention or relate to the FOI request of Stephen Whitaker of December 4, 2001;

 

b. All internal written communications (meaning between employees or departments of the Town of Greenwich) including notes of telephone conversations, which mention or relate to the FOI request of Stephen Whitaker of December 4, 2001;

 

c. All documents relating to or making reference to any safety risk to persons or property of releasing any data contained in the Town GIS database requested by Stephen Whitaker on December 4, 2001;

 

d. All documents detailing and/or summarizing the costs the Town has expended in the course of litigating the matter of the Town GIS database requested by Stephen Whitaker on December 4, 2001.  These would include staff legal costs and outside counsel retained by the Town; and

 

e. All documents detailing and/or summarizing any public or private funds accepted by the Town for the purpose of litigating the matter of the Town GIS database requested by Stephen Whitaker on December 4, 2001.

 

4.  It is found that the respondent First Selectman by letter dated August 22, 2005 advised the complainant that he could inspect any non-exempt records on August 26, 2005 “or on an earlier date as might be mutually agreeable.”  The First Selectman also advised that his office was unaware of any records responsive to paragraphs 3.d and 3.e of the findings, above.

 

5.  It is found that the complainant arrived at the respondents’ offices on August 26, 2005 to inspect the requested records.  At that time, the complainant was informed that the August 26 date was a mistake, that no records were yet available, and that the respondents intended to have the records available on August 29, 2005.

 

6.  It is found that the respondents made some records available on August 29, 2005, but that the complainant did not arrive to inspect them.

 

7.  It is found that the complainant ultimately received, on October 19, 2005, copies of the records that had been made available on August 29, 2005.  Other than correspondence to or from the complainant himself and his counsel, and the FOI Commission’s decision in docket #FIC 2001-546, Whitaker against Town of Greenwich, these records consisted of a single July 14, 2005 letter from the respondent First Selectman to James Fleming, Commissioner of Public Works.

 

8.  It is found that a two-page memorandum and a one-page letter were withheld from the complainant on the basis of a claim of the attorney-client privilege.

 

9.  It is found that some records responsive to the portion of the request described in paragraph 3.d of the findings, above, are kept in the Town Law Department.  Although the respondent First Selectman was, or should have been, aware of these records, he was not the custodian of them.

 

10.  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.

 

11.  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. 

 

12.  Section 1-211(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 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, 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.

 

13.  It is found that the records requested by the complainant are public records within the meaning of 1-200(5), 1-210(a) and 1-211(a), G.S.

 

14.  The complainant contends that the records were not provided promptly.

 

15.  It is found that the records offered to the complainant on August 29, 2005, eighteen days after his request, included only one record that the complainant did not already have, and that the respondents knew or should have known this fact.

 

16.  It is found that the respondents offered no evidence to prove that more than two weeks were required to produce this one record, or to review the two brief records for which the attorney-client privilege is claimed.

 

17.  It is therefore concluded that the respondents violated 1-210(a), G.S., by failing to provide prompt access to public records.

 

18.  The complainant also contends that, although some of the records he sought were in the custody of the Town’s Law Department, and not kept at the respondents’ offices, he should not have to determine which town agency possesses the records he seeks.

 

19.  The Commission agrees.  First, it is found that the respondent First Selectman was aware of the litigation concerning the Town’s GIS data base.

 

20.  It is therefore found that the respondent First Selectman, by asserting in his August 22, 2005 letter that he was “not aware” of any records pertaining to the costs of “litigating the matter of the Town GIS data base” was, at a minimum, disingenuous.  The Commission takes administrative notice of Section 217 of the Charter of the Town of Greenwich, which provides in relevant part:

 

(a)    All administrative functions relative to police, fire, highways, sewers and other public works, building inspection, parks, recreation, law, fleet management and purchasing for such purposes, shall be divided, under the supervision and control of the First Selectman, among administrative departments which shall include the Department of Police, Fire, Public Works, Parks and Recreation, Law, Fleet Management.  The First Selectman shall have the supervision and control, and shall be responsible for the administration, of all the affairs of the Town in respect to such departments, and may fix and determine the internal organization of such departments, the number and kinds of offices and positions, the methods of procedure and, subject to appropriation as otherwise provided by law, the rates of compensation.

(b)   First Selectman and board of selectman.  The First Selectman shall be the chief executive officer of the town and the town agent and shall devote his full time to the duties of his office. …  [Emphasis added.]

 

            21.  It is concluded that the chief executive officer of a public agency has the responsibility to arrange for the production of public records maintained by agencies for which he is responsible.  See, e.g., Docket #FIC 90-337, Richard R. Lindquist v. Dean, Medical School, University of Connecticut Health Center (finding that the Chief Executive Officer of the University of Connecticut Medical School violated the FOI Act by failing to arrange prompt access to records of departments that are ultimately accountable to the Chief Executive Officer); Docket #FIC 88-462, Kris Cieplak and Concerned Citizens for Clean Air v. Mayor, City of Ansonia (finding that it is reasonable for members of the public seeking several types of public records from a city to request them from the city's chief executive officer and expect to be directed to the appropriate record locations, and concluding that the chief executive officer violated the FOI Act by failing to provide access to records of attorneys' fees).

 

22.  It is concluded that the respondent First Selectman violated 1-210(a), G.S., by failing to direct the complainant to the custodian of the requested records or forward the complainant’s request to the appropriate agency.

 

23.  Finally, the respondent contends that the letter and memorandum described in paragraph 8 of the findings, above, are exempt from disclosure pursuant to 1-210(b)(10), G.S., which provides that disclosure is not required of “communications privileged by the attorney-client relationship.”

 

24.  The applicability of the exemption contained in 1-210(b)(10), G.S., is governed by established Connecticut law defining the privilege.  Maxwell v. FOI Commission, 260 Conn. 143 (2002).  In Maxwell, the Supreme Court stated that 52-146r, G.S., which established a statutory privilege for communications between public agencies and their attorneys, merely codifies “the common-law attorney-client privilege as this court previously had defined it.” Id. at 149.

25.  Section 52-146r(2), G.S., defines “confidential communications” as:

all oral and written communications transmitted in confidence between a public official or employee of a public agency acting in the performance of his or her duties or within the scope of his or her employment and a government attorney relating to legal advice sought by the public agency or a public official or employee of such public agency from that attorney, and all records prepared by the government attorney in furtherance of the rendition of such legal advice. . . .

26.  The Supreme Court has also stated that “both the common-law and statutory privileges protect those communications between a public official or employee and an attorney that are confidential, made in the course of the professional relationship that exists between the attorney and his or her public agency client, and relate to legal advice sought by the agency from the attorney.”  Maxwell, supra at 149.

27.  It is found that the letter and the memorandum described in paragraph 8 of the findings, above, are written communications transmitted between the Greenwich Town Attorney and public officials and employees of the town of Greenwich acting in the performance of their duties and within the scope of their employment.

28.  It is also found, however, that the respondents failed to prove that the letter and memorandum described in paragraph 8 of the findings, above, relate to legal advice sought by Greenwich town officials and employees, or that the information in the letter and memorandum was requested to be given in confidence.

29.  It is therefore concluded that the respondents failed to prove that the letter and memorandum described in paragraph 8 of the findings, above, are exempt from disclosure pursuant to 1-210(b)(10), G.S.

30.  With respect to that portion of the complaint that alleges that the respondents established an improper fee schedule for electronic records, it is found that the respondent Board of Selectman approved at its July 20, 2005 meeting the following GIS pricing schedule:

 

Planimetric data (all available layers) - 1 CD                   $70.00

Orthophoto w/o planimetric data – set of 3 CDs           $100.00

 

Customized data set (provided at the town’s

   discretion based on availability) Billable at

   $125 an hour rate rounded to the next full hour

    with 1 hour minimum plus media cost.

 

31.  Section 1-212(b), G.S., provides:

 

(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.  Notwithstanding any other provision of this section, the fee for any copy of the names of registered voters shall not exceed three cents per name delivered or the cost thereof to the public agency, as determined pursuant to this subsection, whichever is less.  The Department of Information Technology shall monitor the calculation of the fees charged for copies of computer-stored public records to ensure that such fees are reasonable and consistent among agencies.

 

32.  The respondents contend that $70.00 per CD for planimetric data and $100 for a set of three CDs for orthophoto data complies with 1-212(b), G.S., because the costs represents the hourly salary for agency employees who must “extract” the data and copy it onto a CD.

 

33.  It is concluded, however, that 1-212(b), G.S., makes no reference to “extracting” data.  

 

34.   It is also found that the respondent offered no evidence to prove that

“extracting” data was a “programming or formatting” function, and was not “search or retrieval,” within the meaning 1-212(b)(1).

 

35.  It is also found that the respondents failed to prove that the time to extract the

data was time that an employee performed programming and formatting, and not computer time.

 

36.  It is therefore concluded that the respondents’ fee schedule for copies of planimetric and orthophoto data does not comply with the requirements of 1-212(a), G.S.

 

37.  With respect to the portion of the respondents’ fee schedule pertaining to a customized data set, it is found that the respondents base that fee on an agreement by an outside software consultant to provide the data sets at a rate of $125.00 per hour.

 

38.  It is found that the outside consultant is providing a necessary copying service within the meaning of 1-212(b)(2), G.S.

 

39.  It is therefore concluded that the respondents’ fee schedule for copies of customized data sets does comply with the requirements of 1-212(a), G.S.

 

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

 

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. 

 

41.  It is found that the respondents’ fee schedule for copies of planimetric and orthophoto data is an agency rule or regulation that curtails the rights granted by 1-210(a), G.S.

 

42.  With respect to the complainant’s request for the imposition of civil penalties, 1-206(b)(2) provides in relevant part:

 

… upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.

 

43.  It is found that the respondent First Selectman’s disavowal of responsibility for providing access to records in the custody of departments over which he has authority was without reasonable grounds.

 

44.  It is further found that the respondent First Selectman’s course of conduct generally, by disavowing knowledge of records, taking over two weeks to provide one relevant record, and declining to exercise his authority as chief executive officer of the town to produce records in the custody of another department, was entirely inconsistent with his responsibilities under the FOI Act.

 

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

 

            1.  Henceforth, the respondent First Selectman shall take the necessary measures to inform requesters of the appropriate department which maintains the requested records.

 

2. The respondents shall henceforth strictly comply with the promptness requirement contained in 1-210(a), G.S.

 

3. The respondent Board of Selectman’s fee schedule for copies of planimetric and orthophoto data is declared void.

 

            4.  The respondent First Selectman shall forthwith remit to the Commission a civil penalty in the amount of $100.00.

 

             

Approved by Order of the Freedom of Information Commission at its regular meeting of August 9, 2006.

 

________________________________

Petrea A. Jones

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:

 

Stephen Whitaker

15 East Putnam Avenue, Suite 311

Greenwich, CT 06830

and

c/o M. Dean Montgomery, Esq.

Bentley, Mosher, Babson & Lambert

PO Box 788

321 Railroad Avenue

Greenwich, CT 06836-0788

 

Jim Lash, First Selectman,

Town of Greenwich; and

Board of Selectmen,

Town of Greenwich

c/o Valerie Maze Keeney, Esq.

Assistant Town Attorney

PO Box 2540

101 Field Point Road

Greenwich, CT 06832-2540

 

 

 

__________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-431FD/paj/8/16/2006