FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Thomas Germain,  
  Complainant  
  against   Docket #FIC 2009-145

Town Clerk, Town of Manchester;

and Town of Manchester,

 
  Respondents January 13, 2010
       

 

The above-captioned matter was heard as a contested case on August 25, 2009, 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 dated March 15, 2009 and filed March 18, 2009, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information Act (the “FOI Act”) by refusing to allow him to copy land records using a portable flat bed scanner.  By letter dated July 26, 2009 and filed July 30, 2009, the complainant sought to amend his complaint, by requesting that the Commission consider the imposition of a civil penalty against the respondent town clerk.

 

3.  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.

 

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

 

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 . . .  (2) copy such records in accordance with subsection (g) of section 1-212.


            5.  Section 1-212(g), G.S., provides in relevant part that:

 

Any individual may copy a public record through the use of a hand-held scanner.  A public agency may establish a fee structure not to exceed ten dollars for an individual to pay each time the individual copies records at the agency with a hand-held scanner.  As used in this section, “hand-held scanner” means a battery operated electronic scanning devise the use of which (1) leaves no mark or impression on the public record, and (2) does not unreasonably interfere with the operation of the public agency.

 

6.  It is found that the land records referenced in paragraph 2, above, are public records within the meaning of 1-200(5), 1-210(a) and 1-212(g), G.S., and, if the scanner at issue complies with the requirements of 1-212(g), G.S., the complainant has the right to copy these records in accordance with 1-210(a)(2), G.S.

 

7.  At the hearing, the complainant testified that he operates a title search company, which requires that he and his staff search through public records, especially land records, in the custody of the respondents to determine for his clients whether various property titles are valid or encumbered in some manner.  The complainant further testified that, in many instances, his clients request that he obtain copies of the land records at issue, so that they can independently review the records. 

 

8.  The complainant testified that he began this business at the end of 2001, at which time no scanners of any kind were permitted in the town halls.  At such time, the complainant owned a flatbed scanner, which he used outside of the town halls in connection with his business. 

 

9.  It is found that the provision concerning the use of a hand-held scanner, as cited in paragraph 5, above, was added to the FOI Act in 2002.  See 2002 Conn. Pub. Act 02-137 3. 

 

10.  The complainant further testified, and it is found, that he began to use his flatbed scanner to copy land records in the respondents’ town hall in 2002, when the provision concerning scanning, as referenced in paragraph 9, above, was codified into the FOI Act.  It is further found that the first time the complainant was informed by the respondent town clerk that he could not use his flatbed scanner to copy land records was in March 2009. 

 

11.  The complainant further testified that, shortly after the respondent town clerk informed him that he could not use the flatbed scanner to copy records, the complainant purchased a hand-held scanner.  Since purchasing a hand-held scanner, the complainant testified that he has used this scanner at the town hall to copy records without any objection to such use by the respondent town clerk.  The complainant also testified that using a hand-held scanner is more difficult than using a flatbed scanner because it requires the person operating the scanner to move it across the records with a steady hand. 

 

12.  The respondent town clerk testified, and it is found, that he was unaware until March 2009 that the complainant was using a flatbed scanner in the vault of the Manchester town hall to copy land records.  It is further found that when the respondent town clerk became aware that the complainant was using a flatbed scanner, he promptly informed the complainant that use of a flatbed scanner was not permitted.  It is further found that the respondent town clerk’s prohibition against the use of flatbed scanners at the town hall is not personal to the complainant, but rather is a blanket prohibition against the use of flatbed scanners by any individual. 

 

13.  It is found that all of the land records at issue in this case are official copies of original documents, which are maintained in a vault at the Manchester town hall.  The respondent town clerk testified that all of the records maintained in the vault in hardcopy form are also available electronically.  In fact, the respondent testified that the respondents maintain all of their records from 1823 forward in hardcopy and in electronic formats.  The respondent testified that the electronic records can be accessed, free of charge, through a stand-alone computer located outside of the vault. 

 

14.  It is found that the respondent town clerk does not knowingly allow any member of the public to use a flatbed scanner to copy records in the respondents’ possession.  It is further found that, on or about October 7, 2002, the respondents posted a notice in the office of the respondent clerk to inform the public that “battery operated hand-held scanning devices may be used to copy land records and [other] public records.”

 

15.  It is found that the principal issue in this case is the meaning of the term “hand-held,” as such term is used in 1-212(g), G.S.

 

16.  The complainant contends that the Commission must look to the description of “hand-held scanner” that is provided in 1-212(g), G.S.   Specifically, the complainant contends that it is clear from the statute that any scanner that is 1) a battery operated electronic scanning device, 2) which leaves no mark or impression on the public record, and 3) does not unreasonably interfere with the operations of the public agency, meets the description of a “hand-held scanner” and is permitted by the express terms of the FOI Act.  Under the complainant’s theory, because his flatbed scanner is a battery operated device, that is unlikely to leave a mark or impression on the records, and does not unreasonably interfere with the respondents’ operations, it is a “hand-held scanner” as described in 1-212(g), G.S. 

 

17.  The complainant further contends that this Commission has previously adjudicated the issue presented in this case in Don Kreutzer v. Assistant Dean, Administration and Specialist Projects, State of Connecticut, University of Connecticut Health Center; Docket #FIC 2004-463 (Sept. 28, 2005).  The complainant contends that, under Kreutzer, any scanner that satisfies the three-part test set forth in paragraph 16, above, is a “hand-held scanner” for purposes of the FOI Act.

 

18.  The respondents contend that the definition proposed by the complainant eliminates the term “hand-held” from the statute, and is contrary to common sense and principles of statutory construction.  The respondents further contend that the term “hand-held” is not defined in 1-212(g), G.S.  Rather, according to the respondents, 1-212(g), G.S., specifically identifies the scanning device that may be used—that is, a “hand-held scanner,” and then sets forth additional requirements that such scanner must comply with in order for its use to be permissible under the FOI Act.

 

19. It is found that, in March 2009, the complainant sought to copy records in the vault located in the office of the respondent clerk at the Manchester town hall. 

 

20.  It is found that the complainant sought to copy such records using a Cannon LIDE 90 flatbed scanner.

 

21.  The Commission takes administrative notice of the fact that a hand-held scanner is commonly understood to be an optical scanner which is designed to be moved by hand across the object or document being scanned.  See YourDictionary.com (definition of handheld scanner), at http://yourdictionary.com/computer/handheld-scanner (accessed: Sept. 21, 2009). 

 

22.  It is found that a flatbed scanner is commonly understood to be configured similar to a copier.  It is further found that with a flatbed scanner, a document to be scanned is typically placed onto the transparent glass of the scanner, where a scanner head assembly moves underneath the glass to capture the image contained on the document.  See id. at http://www.yourdictionary.com/computer/flatbed-scanner (accessed: Sept. 21, 2009). 

 

23.  Is found that the complainant sought to copy records in the respondents’ possession using a flatbed scanner that functioned similar to a copier, as described in paragraph 22, above. 

 

24.  It is found that some of the land records at issue in this case are contained in bound books.  It is further found that, in order to obtain a useful scan of a record contained in a bound book using a flatbed scanner, it is necessary to press such a book against the glass of the scanner until the page to be scanned lies flat.  It is found that pressing a bound book against the glass of a flatbed scanner is very likely to leave a mark or impression on the record. 

 

25.  The Commission notes that the issue of whether or not 1-212(g), G.S., permits the use of a flatbed scanner presents a question of statutory interpretation. 

 

26.  It is found that the make and model of the scanner at issue in Kreutzer is not the same as the make and model of the scanner in the instant case.  It is further found that the scanner in Kreutzer was not a flatbed scanner, as described in paragraph 22, above, but rather was a portable scanner that “required individual sheets to be fed through a set of rollers in order to be copied.”  Kreutzer, at 1, 3.  It is further found that one of the central issues in Kreutzer was whether or not the complainant should be permitted to remove staples from public records in order to scan them.  Kreutzer, at 2, 12 and 13. 

 

27.  When construing statutes, the courts’ and administrative tribunals’ fundamental objective “is to ascertain and give effect to the apparent intent of the legislature.”  State v. Patterson, 276 Conn. 452, 478, 886 A.2d 777 (2005).  “In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to the existing legislation and common law principles governing the same general subject matter.”  Id. at  478-79 (quoting State v. Kirk R., 271 Conn. 499, 510, 857 A.2d 908 (2004)). 

 

28.  Pursuant to 1-2z, G.S., “the meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes.  If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratexual evidence of the meaning of the statute shall not be considered.” 

 

29.  “It is also a general principle of statutory interpretation that every word [in a statute] has meaning regardless of the type of statute.” State v. Brown, Jr., 49 Conn. Supp. 168, 865 A.2d 510 (Conn. Super. Ct. Nov. 2, 2004).  In other words, “no part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase. . . [so that] no word [or phrase] in a statute is to be treated as superfluous.”  (Internal quotation marks omitted).  State v. Peeler, 271 Conn. 338, 434-35, 857 A.2d 808 (2004); see also State v. Szymkiewicz, 237 Conn. 613, 621, 678 A.2d 473 (1996) (“It is, however, equally understood that despite the nature of the statute, it must be construed, if possible, such that no clause, sentence or word shall be superfluous, void, or insignificant. . . .”)

 

30.  It is concluded that the relevant language in 1-212(g), G.S., is clear and unambiguous. 

 

31.  It is further concluded that the interpretation of the statute advanced by the complainant would render the term “hand-held” nugatory, in contravention of the general principle of statutory construction set forth in paragraph 29, above.  See State v. Nelson, 126 Conn. 412, 416, 11 A.2d 865 (1940) (“Courts may not by construction supply omissions in a statute, or add exceptions because it appears to them that good reasons exist for adding them.”).

 

32.  It is concluded that the term “hand-held” in 1-212(g), G.S., is readily understood to modify the word scanner.  It is further concluded that the phrase “hand-held scanner” in 1-212(g), G.S., is generally understood to refer to a particular type of scanner that is held in one’s hand and is moved by hand across the document being scanned.  See City of Bristol v. Vogelsonger, et al., 21 Conn. App. 600, 604, 575 A.2d 252 (1990) (“Statutory language is to be given its plain and ordinary meaning”) (citations omitted).   To the extent that the decision in Kreutzer is not in accord with the instant decision, such decision is overruled.  

 

33.  It is concluded that the complainant’s flatbed scanner is not a hand-held scanner within the meaning of 1-212(g), G.S.

 

34.   It is therefore concluded that the respondents did not violate the FOI Act by prohibiting the complainant from using his flatbed scanner to copy public records. 

 

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 January 13, 2010.

 

____________________________

S. Wilson

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:

 

Thomas Germain   

5 Brimfield Way

Rocky Hill, CT 06067

 

Town Clerk, Town of Manchester;

and Town of Manchester

C/o Timothy P. O’Neil, Esq.

Manchester Corporation Counsel

41 Center Street

P.O. Box 191

Manchester, CT 06045

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

 

 

 

FIC/2009-145FD/sw/1/19/2010