FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by FINAL DECISION
Gregory Marsh,  
  Complainant  
  against   Docket #FIC 2009-142

Emily Smith, Freedom of Information

Officer, State of Connecticut,

Connecticut Innovations, Incorporated;

State of Connecticut, Connecticut

Innovations, Incorporated; and

Connecticut Clean Energy Fund,

 
  Respondents

March 10, 2010

       

 

The above-captioned matter was heard as a contested case on November 19, 2009, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The respondents subsequently requested permission to file added written testimony by Emily Smith, who testified in person at the hearing on November 19, 2009.  The complainant objected to the respondents’ request.  Pursuant to 1-21j-38 of the Regulations of the Freedom of Information (“FOI”) Commission, the hearing officer granted the respondents’ request.  Such written testimony has been marked as an after-filed exhibit for the respondents.  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 on March 6, 2009, the complainant made a written request for copies of records pertaining, in general, to the respondents’ program that provides rebates for homeowners who install solar panels on their houses and to the complainant’s application to be designated as an “eligible installer” under that program.  Specifically, the complainant requested:

 

a.       Applications by Gregory Marsh submitted to CCEF seeking approval as an "Eligible Installer," with all exhibits, attachments or addendums thereto;

b.      Considerations, investigations, reviews, actions, decisions, and Letters of Agreement on Applications submitted by Gregory Marsh to CII or CCEF seeking approval as an "Eligible Installer";

 

c.       Applications by anyone other than Gregory Marsh ever submitted to CCEF seeking approval as an "Eligible Installer," with all exhibits, attachments or addendums thereto, including but not limited to records showing the name and address of each applicant;

d.      Considerations, investigations, reviews, actions, decisions, and Letters of Agreement on Applications submitted to CII or CCEF by anyone other than Gregory Marsh seeking approval as an "Eligible Installer";

e.       Customer Purchase Agreements and Rebate Applications and Requests for Rebate Payment submitted to CCEF, with all exhibits, attachments or addendums thereto, including but not limited to records showing the name and address of the installer and system owner;

f.       Rebate approvals and payments by CCEF, including but not limited to records showing the name and address of each installer and each system owner granted each rebate, and the amount of each rebate;

g.      All terminated rebate approvals, including but not limited to records showing the name and address of each such installer and each system owner involved, and the reasons for termination;

h.      All terminations or removals of anyone as an "Eligible Installer," including but not limited to records showing the name and address of each such installer and the reasons for termination or removal;

i.        Modifications of the Standard Terms and Conditions of the CCEF Eligible Installer Qualifications acceptance or approval;

j.        Gift affidavits per Public Act 04-245 submitted to CUII or CCEF;

k.      Press releases; plans for any news conference concerning PV systems installed under any CCEF program; and Contractor notifications to CCEF regarding any media interview in which PV systems installed in any CCEF program information are referred to or discussed;

l.        Commercial promotional materials, advertisements, and informational brochures produced by Contractors submitted to CCEF for review and recommendations prior to their use; approvals by CCEF of such materials; reviews and recommendations by CCEF on such materials; notices of approval or disapproval by CCEF.

m.    Customer complaints received by CII or CCEF about CCEF "Eligible Installers," including but not limited to records showing the name and address of the installer and the reasons therefor;

n.      Inspections and evaluations by CII of CCEF of CCEF "Eligible Installers," including but not limited to records showing the name and address of the installer and the reasons therefor;

 

o.      Installers terminated or revoked by CII or CCEF as a CCEF "Eligible Installer," including but not limited to records showing the name and address of the installer and the reasons therefor;

 

p.       Notices or correspondence to CII and/or CCEF of intent by anyone to sue or bring other legal action against CII, CCEF, and/or their employees, agents or representatives, for conduct related to the business of CII and/or CCEF;

 

q.      All other records, including but not limited to those claimed to be "formal" or "informal" applications; decisions; correspondence; notes made by or provided to employees or agents of CII and CCEF; even those claimed to be "personal"; calendar entries; telephone call logs; email; transcripts; and electronic recordings held by or in the reasonable access of CCII and CCEF, between CII and CCEF and anyone regarding any applicant to be "Eligible Installers," regarding any "Eligible Installer," and regarding any system owner not otherwise disclosed in response to the above requests.

 

3.      It is found that the respondents received the complainant’s request for records on March 11, 2009.  It is found that the respondents acknowledged the complainant’s request on March 12, 2009, and informed the complainant that because of the volume of records requested, it would take some time to compile them.  It is found that the complainant’s attorney replied to the respondents’ March 12, 2009 letter on March 14, 2009, demanding “immediate access” to the records.  It is found that the respondents wrote to the complainant on March 17, 2009 that their compliance would be prompt under the circumstances of the complainant’s request.

 

4.      By letter dated March 17, 2009, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide copies of the records he requested, described in paragraph 2, above.

 

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

 

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, …whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

6.      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 inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-212.

 

7.      Section 1-212 (a), G.S., provides in relevant part:  “Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

8.      It is concluded that the records requested by the complainant are public records within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

 

9.      It is found that the respondents provided copies of records for the complainant’s inspection on two dates:  March 25, 2009 and, after review of records for permissive and mandatory exemptions, on April 9, 2009. 

 

10.   It is found that the respondents provided more than 50,000 pages of records for the complainant’s inspection. 

 

11.   It is found that the respondents set aside a conference room for the complainant and his counsel to use as they inspected the records.  It is found that the complainant and his attorney inspected copies of records on April 9, 2009 and again on May 6, 2009.

 

12.    It is found that upon the complainant’s request for copies of some of the records he inspected, the respondents provided over 25,000 copies of records, at no charge to the complainant.

 

13.    It is found that the respondents performed a diligent search for the records requested by the complainant and provided the records in a prompt manner. 

 

14.    The complainant contends that the respondents failed to provide copies or inspection of all of the records requested, as described in paragraph 2, above.  It is found, however, that the respondents credibly demonstrated that they complied as diligently and as promptly as possible, given the scope of the complainant’s request.  Moreover, it is found that the respondents remedied omissions when the complainant brought them to the respondents’ attention, and created a 19-page table to facilitate the complainant’s review of 975 rebate requests and associated records, described in paragraph 2.f, above.

 

15.    The respondents withheld from disclosure records that they claimed were exempt pursuant to 1-210(a), 1-210(b)(5)(A) and (B), 1-210(b)(10) and 32-40(c), G.S.

 

16.    Section 1-210(a), G.S. exempts from mandatory disclosure any records that are exempted by “state statute.”   

 

17.    Section 32-40(c), G.S., provides:

 

All financial and credit information and all trade secrets contained in any application for financial aid submitted to the corporation or obtained by the [respondent CII] concerning any applicant, project, activity, technology, product or invention shall be exempt from the provisions of subsection (a) of section 1-210.

 

18.   Section 32-34, G.S., defines “financial aid” as “the infusion of capital to persons, in any form whatsoever, including, but not limited to, grants, loans, equity, leases, guarantees, royalty arrangements, other risk capital and other types of financial assistance.”

 

19.   It is found that many of the records requested by the complainant concerned applications for financial aid from the respondents.

 

20.   Section 1-210(b)(5), G.S. exempts from mandatory disclosure:

 

(A) Trade secrets, which for purposes of the Freedom of Information Act, are defined as information, including formulas, patterns, compilations, programs, devices, methods, techniques, processes, drawings, cost data, customer lists, film or television scripts or detailed production budgets that (i) derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from their disclosure or use, and (ii) are the subject of efforts that are reasonable under the circumstances to maintain secrecy; and

 

(B) Commercial or financial information given in confidence, not required by statute[.]

 

21.    It is found that applicants for the solar installer program submitted financial statements, tax returns, bank statements, and credit information as part of their applications.  It is found that applicants also submitted customer lists as part of their applications.

 

22.    It is found that the respondents redacted the information described in paragraph 21, above, from the copies of records disclosed to the complainant.

 

23.    It is concluded that 32-40(c) and 1-210(b)(5), G.S. exempt from disclosure the information contained in the records described in paragraph 21, above. 

 

24.    It is found that the respondents also withheld from disclosure copies of consumers’ driver’s licenses provided as part of the rebate application that are contained in the files of the residential rebate applicants.  It is found that such redactions are consistent with this Commission’s practice in other cases.  See, FIC Docket #2007-621; Liberty Mutual v. Dept. of Public Safety; FIC Docket #1991-167; Peter P. Samolyk v. Cromwell First Selectman.

 

25.   With respect to the copies of electronic records, described in paragraph 2.q, above, it is found that the respondents promptly undertook a diligent search in response to the complainant’s request. 

 

26.   It is found that the complainant’s request was extraordinarily broad, covering 975 customer files and the files of more than 50 applicants for eligible installer status, for a period of five years.  It is found that the search required retrieval of monthly and yearly backup tapes, “deduplication” of emails, and review for exempt information.  It is found that the respondents needed to devise keyword searches that were neither too inclusive nor too limited for over 1000 categories.  It is found that the chief of information technology for the respondent Connecticut Innovations spent 82 hours of formatting time, exclusive of computer search time, as of July 16, 2009. 

 

27.   It is found that the respondents investigated contracting with an outside vendor to assist with compliance with this aspect of the complainant’s request.  It is found that the most cost effective vendor estimated a cost of $200 per gigabyte to “deduplicate” records (to “eliminate redundant data, such as emails forwarded to multiple parties), $700 per gigabyte to post data to a secure site for review and redaction, and $.04 per page.  It is found that merely a subgroup of the eligible installers (not the 975 customer files) produced 12.8 gigabytes of data.  It is found that a gigabyte can contain from 65,000 to 100,000 pages, depending on the type of electronic record. 

 

28.    Section 1-212(c), G.S., provides:  “A public agency may require the prepayment of any fee required or permitted under the Freedom of Information Act if such fee is estimated to be ten dollars or more.”

 

29.    It is found that the fee for the copies of electronic records requested by the complainant was estimated to be ten dollars or more.

 

30.    Section 1-212(d), G.S., provides in relevant part:

 

The public agency shall waive any fee provided for in this section when:

 

(1)     The person requesting the records is an indigent individual;

 

(3)  In its judgment, compliance with the applicant's request benefits the general welfare[.]

 

31.   It is found that the complainant did not claim that he was an indigent individual when he made his written request for records, described in paragraph 2, above. It is found that the complainant first claimed he was indigent in his March 17, 2009 letter to this Commission.  It is found that the respondents first learned of the complainant’s request for a waiver of fees when they received a copy of the complainant’s appeal to this Commission.

 

32.  It is found, and the respondents acknowledge, that they did not have a policy for establishing one's eligibility for a fee waiver on the ground of indigency at the time that they provided copies of records to the complainant in March, April, and May of 2009.

 

33.   It is found that on July 20, 2009, as the respondents were in the process of complying with the complainant’s request for copies of electronic records, the respondents adopted a policy for waiver of fees under the FOI Act.  It is found that such policy included waiver of fees due to indigency or to benefit the general welfare.  It is found that the respondents adopted an indigency policy consistent with the 2009 U.S. Department of Health and Human Services Federal Poverty Guidelines, and created an application that included a financial affidavit.

 

34.   It is found that once the extraordinary cost of responding to the request for copies of electronic records became apparent, the respondents asked the complainant to complete the financial affidavit in support of his claim of indigency. 

 

35.    It is found that as of the evidentiary hearing in this matter, the complainant had not submitted the financial affidavit in support of his claim of indigency.  It is concluded that the respondents properly requested either prepayment or completion of the financial affidavit in support of a claim of indigency prior to providing the copies of electronic records to the complainant. 

 

36.   It is found that in his September 15, 2009 Memorandum to this Commission, the complainant raised for the first time the issue of waiver of fees because compliance would benefit the general welfare.  It is found that the complainant did not ask the respondents for a fee waiver pursuant to 1-212(d)(3), G.S.

 

37.   It is found that upon learning of the complainant’s request for a fee waiver pursuant to 1-212(d)(3), G.S., the respondents considered the complainant’s request, but denied it because they believed his request to focus mostly on the respondents’ decision not to designate him an “Eligible Installer.”  It is found that the respondents, in their judgment, determined the complainant’s request to be primarily for his personal benefit, not the general welfare.

 

38.    The respondents claim that they cannot reasonably provide copies of all of the electronic records requested by the complainant in this case due to the scope of the request and the associated costs that would be incurred to an outside vendor in order to comply with the request.  The respondents cite 1-211(a), G.S., which requires a public agency to provide copies of electronic records “if the agency can reasonably make such copy or have such copy made.” (Emphasis added.)

 

39.    It is concluded, however, that this issue will not be ripe until the complainant offers prepayment or establishes that he is indigent. 

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 March 10, 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:

 

Gregory Marsh

C/o Susan V. Wallace, Esq.

11 Blue Orchard Drive

Middletown, CT 06457

 

Emily Smith, Freedom of Information

Officer, State of Connecticut,

Connecticut Innovations, Incorporated;

State of Connecticut, Connecticut

Innovations, Incorporated; and

Connecticut Clean Energy Fund

C/o Sheila A. Huddleston, Esq.

Shipman & Goodwin LLP

1 Constitution Plaza

Hartford, CT 06103

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-142FD/sw/3/11/2010