FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Stephen Whitaker,  
  Complainant  
  against   Docket #FIC 2007-091

Director, State of Connecticut,

Department of Information Technology,

 
  Respondent November 14, 2007
       

 

The above-captioned matter was heard as a contested case on June 26, 2007 and October 3, 2007, at which times the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, the above-captioned matter was consolidated on June 26, 2007, with docket #FIC 2006-608, Stephen Whitaker v. Director, State of Connecticut, Department of Information Technology; and State of Connecticut, Geospatial Information Systems Council.

 

 

After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

1.  The respondent is a public agency within the meaning of 1-200(1), G.S.

 

2.  By letter of complaint dated and filed February 8, 2007, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information FOI Act by:

 

a.       denying his October 27, 2006, request for records;

 

b.      not making available minutes of the December 27, 2006 Geospatial Information Systems (hereinafter “GIS”) Council within seven days;

 

c.       failing to comply with 1-211(c), G.S., by failing to maintain written guidelines or advice relating to a statewide GIS application for homeland security;

 

d.      failing to provide him with a list of requested documents for which the respondent claims an exemption from disclosure. 

 

3.  It is found that the allegation described in paragraph 2.a, above, has been fully addressed by the Commission in Docket #FIC2006-608; Stephen Whitaker v. Director, State of Connecticut, Department of Information Technology; and State of Connecticut, Geospatial Information Systems Council.  Accordingly, such allegation shall not be further addressed herein. 

 

4.  It is found that the allegation described in paragraph 2.d, above, does not allege a violation of the FOI Act.  Accordingly, such allegation shall not be further addressed herein. 

5.  With respect to the allegation described in paragraph 2.b, above, 1-225, G.S., states in relevant part:

 

(a)…The votes of each member of any such public agency upon any issue before such public agency shall be reduced to writing and made available for public inspection within forty-eight hours and shall also be recorded in the minutes of the session at which taken, which minutes shall be available for public inspection within seven days of the session to which they refer.

           

            6.  It is found that the GIS Council is a public agency, within the meaning of 1-200(1), G.S.  It is further found that the GIS Council held a regular meeting on December 27, 2006. 

 

7.  It is found that, by email dated January 8, 2007, the complainant asked that the respondent provide him with the minutes of the GIS Council meeting of December 27, 2006.  

 

8.  It is found that, on January 10, 2007, after previous email exchanges between the complainant and respondent beginning January 8, 2007, and continuing through January 10, 2007, regarding the complainant’s request in paragraph 7, above, the respondent provided the complainant with a copy of unapproved minutes of the December 27, 2006, meeting of the GIS Council meeting.

 

9.  It is found that, at the time of the request described in paragraph 7, above, the respondent was providing the complainant with records on behalf of the GIS Council.  It is found that the minutes for the GIS Council meeting of December 27, 2006, were not available for the complainant’s inspection within seven days, within the meaning of 1-225(a), G.S.  However, the Commission notes that the GIS Council is not a party in this matter.  Accordingly, the GIS Council cannot be found to be in violation of 1-225(a), G.S.  At the hearing in this matter, the complainant alleged that the respondent violated the promptness provisions of the FOI Act by taking two days to provide the requested minutes.  However, it is concluded that such allegation was not fairly raised in the complaint.  It is concluded that the respondent did not violate the FOI Act, as alleged in paragraph 2.b, above. 

10.  With respect to the complainant’s allegation described in paragraph 2.c, above, that the respondent violated 1-211(c), G.S., that section provides: 

 

(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 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.  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 Department of Information Technology shall adopt written guidelines to assist municipal agencies in carrying out the purposes of this subsection.  Nothing in this subsection shall require an agency to consult with said department prior to acquiring a system, equipment or software or modifying software, if such acquisition or modification is consistent with a design analysis for which such agency has previously consulted with said department…. 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. 

 

11.  The respondent first contends that the complainant does not have standing to bring the allegation described in paragraph 2.c, above.  In this regard, the respondent contends that the FOI Act does not confer a right on the complainant, which may be appealed under 1-206(b)(1), G.S. 

 

12.  Section 1-206(b)(1), G.S., provides in relevant part:

 

Any person denied the right to inspect or copy records under section 1-210 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the Freedom of Information Act may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission.  A notice of appeal shall be filed within thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed within thirty days after the person filing the appeal receives notice in fact that such meeting was held.  For purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken.

 

13.  It is concluded that 1-211(c), G.S., confers upon the public the right to have its public agencies comply with the mandates set forth therein.  It is concluded that, the complainant, as a member of the public, has such right, and has standing with respect to this allegation. 

 

14.  The respondent next contends that the allegation described in paragraph 2.c, above, is time-barred.  Specifically, the respondent contends that the complainant was aware in March of 2006, that the respondent had not adopted written guidelines for municipal agencies, within the meaning of 1-211(c), G.S.  The respondent contends that, since the complaint in this matter was filed more than eight months later, 1-206(b)(1), G.S., prohibits the Commission from considering the allegation in paragraph 2.c, above.  However, it is concluded that the requirement in 1-211(c), G.S., to adopt such guidelines is continuing.  Accordingly, such allegation is not time-barred.   

 

15.  It is found that, in October 2006, the respondent adopted the guidelines required by 1-211(c), G.S.  Such statute set no time frame for the adoption of such guidelines.  While it is regrettable that the respondent did not comply with the requirement to adopt municipal guidelines until October of 2006, such time lapse did not violate the provisions of 1-211(c), G.S. 

 

16.  At the hearing in this matter, the complainant contended that, because he received from the respondent “insufficient documentation” of adequate planning with respect to the public’s rights under the FOI Act, and because an individual would have to purchase thousands of dollars of software in order to achieve full functionality of the GIS data, the respondent did not fully comply with the provisions of 1-211(c), G.S.

 

17.  However, it is concluded that 1-211(c), G.S., requires only that the respondent consider whether a 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.  There was ample evidence at the hearing in this matter that the respondent has done just that.  It is found that over many months, the respondent has worked closely with several state agencies in contemplation of acquiring the ESRI system for GIS data.  The respondent has, from the beginning, considered whether the system adequately provided for FOI rights, and has made efforts to ensure those rights, including the right to view and copy all non-exempt public records maintained by the respondent. 

 

18.  It is concluded that the respondent did not violate the FOI Act, as alleged in paragraph 2.c, above. 

           

           

           

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

 

1.  The complaint is hereby dismissed. 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of November 14, 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

           

Director, State of Connecticut,

Department of Information

Technology

c/o Charles H. Walsh, Esq.

Assistant Attorney General

55 Elm Street

3rd Floor Annex

Hartford, CT 06106

 

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-091FD/paj/11/15/2007