FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Mary Ellen DeRosa,

 
  Complainant  
  against   Docket #FIC 2010-622

Coordinator,

Management Information Systems,

City of Milford; and City of Milford,

 
  Respondents

August 24, 2011

       

           

The above-captioned matter was heard as a contested case on March 15, 2011, 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 October 6, 2010, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by requiring her to pay for the cost of retrieving certain emails.

           

            3.  It is found that the complainant made a June 9, 2010 request for all emails sent to two employees in 2008 by an individual from his home email address. 

 

4.  It is found that the complainant subsequently narrowed her request to a more limited time period, and later reiterated her request on October 4, 2010.

 

5. It is found that the requested emails, if they exist, are no longer contained in the respondent’s Microsoft Exchange server, and are therefore not easily accessible. At least one of the emails, received by the complainant when she was employed by the respondent City, was deleted by her.

 

6.  It is found that by email dated October 4, 2010, the respondent explained that she had located two backup tapes that might or might not contain the requested emails, and explained the substantial technical difficulties in retrieving the requested emails, which required engaging an outside contractor. The respondent indicated that the retrieval process would begin once the complainant paid for the cost of the contractor, which was $250 per hour for an estimated two hours.

 

7.  It is found that the complainant declined to pay for the cost of the contractor, and did not receive the requested records.

 

8.  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.

 

            9.  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.

 

10. Section 1-211(a), G.S., provides:

 

   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.

 

11. Section 1-212, G.S., provides in relevant part:

 

(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. …

 

12. It is found that the requested emails pertain to a CHRO complaint against the respondent City, instituted by the complainant.

 

13.  It is found that the requested emails, if they exist, are public records within the meaning of 1-200(5) and 1-210(a), G.S.

 

14. It is found that the respondents have already expended approximately $5,000 to pay a contractor to retrieve the requested emails, and have not sought to recover this cost from the complainant.

 

15. It is found that the outside contractor provides the respondents with computer storage and retrieval services within the meaning of 1-212(b)(4), G.S., and that the retrieval cannot be accomplished without his services.

 

16. It is therefore concluded that the respondents did not violate 1-212, G.S., by conditioning access to the records on the complainant’s agreeing to pay for the cost of the outside contractor.

 

            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 24, 2011.

 

__________________________

Cynthia A. Cannata

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:

 

Mary Ellen DeRosa

c/o Anissa Kalpproth, Esq.

Law Offices of Daniel A. Lyons & Associates

334-336 Main Street

West Haven, CT  06516

 

Coordinator, Management Information Systems,

City of Milford; and City of Milford

c/o Debra S. Kelly, Esq.

Office of the City Attorney

City Hall, 110 River Street

Milford, CT  06460

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-622/FD/cac/8/24/2011