FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Stephen Whitaker,  
  Complainant  
  against   Docket #FIC 2006-584

James Lash, First Selectman,

Town of Greenwich; and

Ted Gwartney, Tax Assessor,

Town of Greenwich,

 
  Respondents August 8, 2007
       

            

The above-captioned matter was heard as a contested case on July 17, 2007, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. 

 

            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 August 18, 2006 and amended on September 13, 2006, 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; (b) failing to provide public records in the requested computer format; (c) setting an improper fee for a copy of a computerized record; and (d) failing to consider whether a computer system adequately provided for the rights of the public under the Freedom of Information Act.  The complainant requested the imposition of civil penalties against the respondents.

 

3.  It is found that, by letter dated June 13, 2006, the complainant requested that the respondent Tax Assessor provide him with “the assessment database CD of current data as of this date ….”  (Emphasis in original.)

 

4.  It is found that the complainant made a similar request to the respondent First Selectman on June 24, 2007.

 

5.  It is found that the complainant amended his request on or about August 3, 2006 to the respondents to request:

 

a.  “Current, up-to-date assessment databases”;

b.   “Prior owners and assessed values data from ProVal system”;

c.  “Both Orthophotography vendor contracts as PDF files”; and

d.  “Building permit database with documentation of fields/values/notes”;

e.  “This request is filed as a recurring request for a monthly updated dataset to be delivered via Flash memory drive or FTP.”

 

6.  At the hearing, the parties agreed that the issue raised by the complainant’s request as described in paragraph 5.c for the orthophotography vendor contracts to be provided as PDF files, utilizing the “scan-to-PDF” feature on a town photocopier, was fully raised in a previously heard, but not yet decided, case, FIC 2007-158, Stephen Whitaker v. Greenwich, and need not be decided in this case.

 

7.  It is found that the complainant additionally made an August 3, 2006 to the First Selectman to request inspection or copies of the following records:

 

a.  “Records detailing legal expenses by the Town for outside counsel from 2001 through 2006”;

b.  “Records detailing food, travel, lodging expenses paid or reimbursed by the Town for any outside counsel retained 2001 through 2006”;

c.       “Records detailing legal expenses and judgments paid by Town 2001 through 2006”;

d.      “Records detailing or associating any of the above records with individual Court or FOIC actions”;

e.       “Records detailing in-house legal staff expenses for salary/benefits by individual identified 2001, 2006”; and

f.        “Summary periodic reports by attorney identifying cases assigned and status, 2001-2006.”

 

8.   It is found that the First Selectman promptly forwarded the complainant’s request to the town’s Law Department.

 

9.  It is found that the town’s Law Department responded to the complainant’s two August 3, 2006 records requests on August 3, 2006.

 

10.  It is found that the parties exchanged additional correspondence seeking clarification of the complainant’s requests, and the respondents’ responses to them.

 

11.  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.

 

12.  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. 

 

13.  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.

 

14.  Section 1-211(c), G.S., provides in relevant part:

 

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 Freedom of Information Act at the least cost possible to the agency and to persons entitled to access to nonexempt public records under the Freedom of Information Act. 

 

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

 

16.  With respect to the complainant’s request for tax assessment data as described in paragraphs 5a and 5b, above, it is found that the respondents made and offered two CD’s containing the requested data.  The respondents offered to waive any fee for these two CD’s.  The complainant made no effort to collect the CD’s, and the respondents made no further effort to deliver them, beyond notifying the complainant that they were available.

 

17.  It is concluded that the respondents did not violate 1-210(a), G.S., with respect to the records described in paragraphs 5a and 5b, above.

 

18.  The complainant contends that the records were not offered in the format requested, that is, “via Flash memory drive or FTP,” as described in paragraph 5(e), above, in violation of 1-211(a), G.S.

 

19.  For reasons largely owing to the parties’ many requests for postponements of the hearing on this matter, the unavailability of certain witnesses on the scheduled date of the hearing on this matter, the complexity of the technological issues presented, and the one-year time constraint imposed by 1-206(b)(1), G.S., there is insufficient evidence on the record fairly to establish either that the complainant communicated to the respondents that the CD format, which he originally requested on June 13, 2006, had become unacceptable, or that the respondents reasonably can make a copy or have a copy made “via Flash memory drive or FTP.” 

 

20.  Therefore, the Commission declines in this case to decide whether the respondents violated 1-211(a), G.S., with respect to format in which the tax assessment data was offered to the complainant.

 

21. With respect to the portion of the request described in paragraph 5d, above, it is found that the respondents offered to provide data, in electronic format, that was reasonably responsive to the request for building permit tracking information.

 

22.  It is found that the complainant declined the offered data.  The complainant contends that the offered data is not useful to him unless he purchases costly software, and that therefore the respondents violated 1-211(c), G.S., by failing to consider, before acquiring the computer system used to track building permits, whether the system adequately provided for the rights of the public under the Freedom of Information Act at the least cost possible to persons entitled to access to nonexempt public records.

 

23.  It is found, however, that the computer system used by the Town building department to track permits was acquired before 1992, the effective date of 1-211(c), G.S.

 

24.  Nonetheless, the complaint contends that the computer system used by the Town building department to track permits has been updated since 1992, and that such updates were subject to 1-211(C), G.S.

 

25.  Section 1-211(c), G.S., provides in relevant part, “The provisions of this subsection shall not apply to software modifications which would not affect the rights of the public under the Freedom of Information Act.”

 

26.  It is found that no evidence was presented to prove that any such updates since 1992 affected the rights of the public under the FOI Act. Rather, it is found that the  updates since 1992 essentially maintained the status quo ante and did not affect the complainant’s central frustration—that he must use costly software to use the copy of the data he has been offered.

 

27.  It is therefore concluded that 1-211(c), G.S. does not apply to the respondents’ permit tracking system, or to the software updates.

 

28.  The Commission notes that the Town is in the process of obtaining a new computerized building permit tracking system, and the Commission trusts that the Town will comply with the provisions of 1-211(c), G.S., before acquiring such a system. 

 

29.  With respect to the request for legal expense records described in paragraph 7, above, it is found that the First Selectman, through the town’s Law Department, provided records of settlements and judgments, and of payments to outside counsel, for the years 2001-2006.  It is found that these records are reasonably responsive to the portion of the complainant’s request described in paragraphs 7a, 7c and 7d, above.

 

30.  It is found that the Law Department does not maintain records responsive to the portion of the complainant’s request described in paragraph 7b, above.

 

31.  The respondents contend that records responsive to the portion of the complainant’s request described in paragraph 7f, above, that is, “[s]ummary periodic reports by attorney identifying cases assigned and status,” are privileged as attorney-client communications.

 

32.  It is found, however that the complainant is not seeking any privileged communications, but rather, by requesting the records described in paragraphs 7.e and 7.f, seeks to inspect or copy whatever records are maintained by the town that connect specific in-house counsel to specific cases arising out of the complainant’s numerous FOI complaints, and that detail the salary and benefits of those in-house counsel, so that the complainant may make his own calculations of the Town’s cost of litigating such complaints.

 

33.  It is found that the Law Department sought clarification of the complainant's request as described in paragraph 7, above.  While the complainant clarified certain portions of that request, he did not clarify the portion of the request described in paragraph 32, above.

 

34.  It is therefore concluded that the First Selectman did not violate 1-210(a), G.S., with respect to the request described in paragraph 7, above. 

 

35.  The Commission notes that the complainant is free to renew, with greater clarity, his request for legal expense records pertaining to in-house counsel, to the Town’s Law Department.

 

 

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

 

            1.  The complaint is dismissed.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 8, 2007.

 

 

 

________________________________

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

 

James Lash, First Selectman,

Town of Greenwich; and

Ted Gwartney, Tax Assessor,

Town of Greenwich

c/o Valerie Maze Keeney, Esq. and

John Wayne Fox, Esq.

Town of Greenwich

Law Department

101 Field Point Road

 PO Box 2540

Greenwich, CT 06836-2540

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2006-584FD/paj/8/13/2007