NO. CV 03 0521573 S


OFFICE OF HEALTH CARE ACCESS                   :                SUPERIOR COURT

v.                                                                               :                JUDICIAL DISTRICT

                                                                                  :                OF NEW BRITAIN

 

 

FREEDOM OF INFORMATION                            :
COMMISSION                                                        :                APRIL 19, 2005

 

NO. CV 03 0521574 S

OFFICE OF HEALTH CARE ACCESS                   :                SUPERIOR COURT

v.                                                                                :                JUDICIAL DISTRICT

                                                                                   :                OF NEW BRITAIN

FREEDOM OF INFORMATION                             :
COMMISSION                                                         :                APRIL 19, 2005

MEMORANDUM OF DECISION

 

The plaintiff, Office of Health Care Access ("OHCA") filed these appeals from a decision of the defendant, Freedom of Information Commission ("Commission"), ordering the OHCA to provide John J. Farrell and the New England Health Care Employees Union, District 1199 ("Union")' with electronic spreadsheets of filings for all

'The Union is also named as a defendant in this case, but has not filed an appearance.

Connecticut acute care hospitals as requested by Farrell and by Eleanor Prouty, a Union Text Box: 2
representative.' The OHCA brings this appeal pursuant to General Statutes 1-206(d) and 4-183. For the reasons set forth below, the court finds the issues in favor of the Commission in both appeals.

The records reflects the following facts. On April 19, 2002, Farrell requested from the plaintiff copies of "All Hospital FY 2001 Annual Reporting/Twelve Month Actual Filing Schedules" and "All Hospital Chime Reports 920 and 930" on diskettes. (Farrell Return of Record ("Farrell ROR"), p. 6.) On May 9, 2002, Prouty requested from the plaintiff an electronic copy of certain "Schedules from the Twelve Month filing for 2001, for all Connecticut acute care hospitals." (Union Return of Record, ("Union ROR"), p. 7.) She listed the schedules and stated that her "preference would be to receive these as spreadsheets. Please contact me if another electronic format is available instead." (Union ROR, p. 7.) In his complaint to the Commission, Farrell states that he received a telephone message on April 22, 2002 from an employee of the plaintiff indicating that the material he requested could not be provided on diskette but could be provided on paper. (Farrell ROR, p. 4.) On May 15, 2002, the plaintiff responded to Prouty by letter, informing her that it did not at the time have the ability to provide this data in an electronic spreadsheet format, but the information she requested was available in paper format. (Union ROR, p. 8.) 

'Prouty made the request for the records and filed the complaint with the Commission. Another Union representative, Grace Rollins, represented the Union at the agency hearing and filed briefs with the Commission.


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On May 1, 2002, Farrell filed a complaint with the Commission, in which he stated: "This type of information has been provided on diskette in the past and should be available on diskette as mentioned in the P01 Request Guideline & Requirements as provided by the State of Connecticut, Office of Health Care Access." (Farrell ROR, p. 4.) On May 22, 2002, Prouty filed a complaint with the Commission, in which she stated: "I want to note that the data I requested was provided in electronic format (diskette) in prior years, but is no longer provided." (ROR, p. 5.)

The Commission held a hearing on both complaints on September 30, 2002. (Union ROR, p. 322, Hearing Transcript.)' At the hearing, Farrell testified, as did Grace Rollins, on behalf of Prouty and the Union. Mary Heffernan, the Commissioner of the OHCA and Susan Klick, the OHCA's Director of Health Care Information Systems testified for the plaintiff. The hearing officer issued his proposed final decision on April 14, 2003, and following the submission of briefs by Rollins and the plaintiff, the Commission, at a meeting on April 23, 2003, adopted the proposed final decision as its final decision. At the hearing, Rollins testified that the electronic spreadsheet format had been previously provided at a minimal cost (Union ROR, p. 330, Hearing Transcript; p.

3For purposes of the hearing on September 30, 2002, the complaints by Prouty and Farrell were consolidated, as their complaints involved the same issue. While copies of the hearing transcript, proposed final decision, meeting transcript and final decision are in both returns of record, all citations in this decision to these documents will be made using the page numbers in the Union return of record, filed in docket number CV 03 0521573.


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131, Union Exhibit D, Letter from Ferreira to Maloney) and that the plaintiff provided to her, via email, an electronic spreadsheet version of a schedule that was not one of the ones requested but contained some of the same information, to show that the plaintiff was capable of providing the documents in the requested form. (Union ROR, pp. 332-33, Hearing Transcript; p. 304, Union Exhibit L, email from Malinowski to Rollins.) Heffernan testified that in 1999, the plaintiff contracted with PCC Consulting to develop a web-based data submission system, so the hospitals no longer submit their information to the plaintiff in spreadsheet format on disks. (Union ROR, pp. 339-40, Hearing Transcript.) Heffernan further testified that with the new computer system automated reports are generated, and to create new reports, PCC Consulting must come in and reprogram the computer, as the plaintiff does not have the technical expertise in-house to do the reprogramming. (Union ROR, pp. 339-40, Hearing Transcript.) Heffernan stated that the cost for PCC Consulting to reprogram the computer system to produce the requested schedules was estimated at $14,800. (Union ROR, p. 340, Hearing Transcript.) Klick also testified that the plaintiff cannot, using the new computer system, download onto disk the requested schedules. (Union ROR, p. 346, Hearing Transcript.) Both Heffernan and Klick testified that they were not employed by the plaintiff at the time of the change in the computer system and did not know if the plaintiff consulted with the Department of Information Technology


("DOIT")Text Box: 5
 prior to changing to the new system. (Union ROR, pp. 343, 347, Hearing Transcript.)

In the final decision mailed April 29, 2003, the Commission found that prior to the plaintiff's acquisition of the new computer system in 1999, the plaintiff was able to provide copies of the requested schedules in electronic spreadsheet format. (Union ROR, p. 394, Final Decision, 10.) The Commission further found that the provision of public records in electronic spreadsheet format is commonplace and is not a specialized need. (Union ROR, p. 394, Final Decision, 13.) The Commission concluded that the plaintiff violated General Statutes 1-211(b) in that in 1999, the plaintiff "entered into a contract that impairs the right of the public under the ...[Freedom of Information Act ("FOIA")] to inspect or copy the agency's nonexempt public records existing on-line in, or stored on a device or medium used in connection with a computer system owned, leased or otherwise used by the agency in the course of its governmental functions." (Union ROR, p. 394, Final Decision, 14.) The Commission further concluded that the plaintiff violated General Statutes 1-211(c) in that it did not consider prior to acquiring the new computer system in 1999 whether the system adequately provided for the rights of the public under FOIA and the plaintiff did not prove that they consulted with the DOIT prior to acquiring the system. (Union ROR, p. 394, Final Decision, 15.) The Commission also concluded that it was inconsistent with FOIA to require the complainants to pay for


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reprogramming a computer system that was obtained in violation of FOIA, the plaintiff did not prove that the estimate of $14,800 for reprogramming was the lowest obtainable estimate, and such cost is "incredible." (Union ROR, p. 394-95, Final Decision, 16, 17.) The Commission therefore found that the plaintiff violated General Statutes 1-211(a) in that it could reasonably provide the complainants with a copy of the requested records in electronic spreadsheet format. (Union ROR, p. 395, Final Decision, 17.) The Commission ordered the plaintiff to provide the complainants with a copy of the requested records in electronic spreadsheet format, at no cost. (Union ROR, p. 395, Final Decision.) The plaintiff thereafter timely served and filed these appeals from the Commission's final decision.

Because the decision of the FOIC requires the plaintiff to provide the complainants with a copy of the requested records in electronic spreadsheet format at no cost to the complainants, rather than as paper copies as offered by the plaintiff, and the plaintiff will incur the costs of reprogramming its computer system in order to comply with the FOIC's order, the court finds that the plaintiff is aggrieved within the meaning of General Statutes 4-183. See State Library v. Freedom of Information Commission, 240 Conn. 824, 694 A.2d 1235 (1997); Kelly v. Freedom of Information Commission, 221 Conn. 300, 603 A.2d 1131 (1992).


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Judicial review of an administrative agency's action is governed by the Uniform Administrative Procedure Act ("UAPA"), General Statutes 4-166 et seq.; the scope of that review is very restricted. MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 136, 778 A.2d 7 (2001). With regard to questions of fact, it is not the function of a reviewing court "to retry the case or to substitute its judgment for that of the administrative agency." Id.

"The substantial evidence rule governs judicial review of administrative fact-finding under UAPA. General Statutes 4-183 (j) (5) and (6). Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review. The burden is on the plaintiff to demonstrate that the agency's factual conclusions were not supported by the weight of substantial evidence on the whole record." (Citations omitted; internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, supra, 257 Conn. 136-137.

"Even as to questions of law, the court's ultimate duty is only to decide whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the


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facts found and could reasonably and logically follow from such facts." (Citations omitted; internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, supra, 257 Conn. 137. Ordinarily, courts are to afford "deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes. Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. Furthermore, when a state agency's determination of a question of law has not previously been subject to judicial scrutiny the agency is not entitled to special deference." (Citations omitted, internal quotation marks omitted.) Id., 137. See also, Conn. Light & Power Co. v. Department of Public Utility Control, 266 Conn. 108, 124-125, 830 A.2d 1121 (2003); Commissioner of Environmental Protection v. Freedom of Information Commission, 255 Conn. 651, 658-59, 774 A.2d 957 (2001). "It is the function of the courts to expound and apply governing principles of law." Director, Retirement and Benefits Services Division, Office of the Comptroller v. Freedom of Information Commission, 256 Conn. 764, 771, 775 A.2d 981 (2001). When interpretation of a statute "raises a novel question of law, it would be inappropriate for us to defer to the department's view of the intent of the legislature. See MacDermid, Inc. v. Dept. of Environmental Protection, supra, 257 Conn. 137; Charette v. Waterbury, 80


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Conn. App. 232, 243-44, 834 A.2d 759 (2003), cert. denied, 267 Conn. 910, 840 A.2d 1172 (2004)." Parkhurst v. Wilson-Coker, 82 Conn. App. 877, 884-885, 848 A.2d 515 (2004).

In addition, judicial review must be conducted in light of the overarching legislative policy of FOIA, which "is one that favors the open conduct of government and free public access to government records. . . . As we have repeatedly noted, our construction of the FOIA must be guided by the policy favoring disclosure….”

(Citations omitted; internal quotation marks omitted.) Perkins v. Freedom of Information Commission, 228 Conn. 158, 166-67, 635 A.2d 783 (1993). "`[I]t is well established that the general rule under the Freedom of Information Act . . . is disclosure, and any exception to that rule will be narrowly construed in light of the general policy of openness

expressed in the FOIA legislation.' Carpenter v. Freedom of Information Commission, 59 Conn. App. 20, 24, 755 A.2d 364, cert. denied, 254 Conn. 933, 761 A.2d 752 (2000), quoting Board of Education v. Freedom of Information Commission, 208 Conn. 442, 450, 545 A.2d 1064 (1988).

The plaintiff argues that the FOIC misconstrued and misapplied the meaning of General Statutes 1-211(a), 1-211(b), 1-211(c) and 1-212; ignored or misconstrued the evidence presented at the hearing concerning what would be entailed in


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complying with the complainants' requests; and, abused its discretion by finding the plaintiff in violation of General Statutes 1-211(c), without notice to the plaintiff.

General Statutes 1-211(a) provides that any public agency maintaining public records in a computer storage system "shall provide, to any person making a request pursuant to the [FOIA], 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." Subsection (a) further provides that the cost for providing a copy of such data shall be in accordance with 1-212. General Statutes 1-211(b) provides that no public agency "shall enter into a contract with, or otherwise obligate itself to, any person if such contract or obligation impairs the right of the public under the [FOIA] to inspect or copy the agency's nonexempt public records existing on-line in, or stored on a device or otherwise used by the agency in the course of its governmental functions." Finally, subsection (c) of 1-211 provides, in relevant part; "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 [FOIA] at the least cost possible to the agency and to persons entitled to access to nonexempt public records under the [FOIA]. In meeting its obligations under this subsection, each state public agency shall consult with the [DOIT]


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as part of the agency's design analysis prior to acquiring any such computer system, equipment or software."

The plaintiff first argues that the Commission erred in finding that the plaintiff violated 1-211(a) because the plaintiff did make the data available to the complainants in the form of a paper copy, and the only evidence presented at the hearing showed that the current system does not allow a download into a spreadsheet format on diskette. The plaintiff claims that it complied with the statute because it provided the complainants with two options–paper copy or reprogramming–to access the information requested.

The plaintiff also claims that the Commission erred in finding that it violated 1-211(b) because, despite the change in its computer system, it still met its obligation, under the plain meaning of the statute, of providing the complainants with access to the data, either "to inspect or copy." The plaintiff argues that 1-211(b) does not require the data to be maintained in a specific format, require that it be created for the public in any particular format, or require that the data be provided in a format capable of manipulation. The plaintiff also claims that the Commission's interpretation of 1-211(b) leads to absurd consequences or bizarre results in that its interpretation suggests that any time an agency contracts with a private entity to reconfigure its computer system, the revised system must always be capable of providing individuals with exactly the same information in the same format as previously requested, so that the agency is required to


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maintain its computer system and data in a particular way forever, hampering the ability of state agencies to use information technology to become more efficient and, in many ways, to make more information available to the public. The plaintiff further argues that the Commission's interpretation of 1-211(b) could allow an agency that decided to "impair" public access to information to do so without paying the costs involved in meeting possible FOIA challenges by simply making sure that any reconfiguration of its computer system was done by agency personnel only and not by an outside contractor.

The plaintiff also argues that the Commission erred in finding that it violated 1-211(c) by not consulting with the DOIT because it was the complainants' burden of showing noncompliance and there is no evidence in the record that the plaintiff did not consult with the DOIT prior to changing its computer system. The plaintiff further argues that it was surprised and prejudiced by a lack of notice that the issue of consultation with the DOIT would be raised because there was no reference to this issue in the complainants' complaints.

Finally, the plaintiff argues that a plain reading of 1-212 required a finding that the complainants should be required to pay the cost of reprogramming the computer system in order to receive the information in the form requested. The plaintiff claims that the statute simply provides that the agency cannot charge more than the cost to the


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agency; it does not impose a burden on the agency to prove the least cost, and it does not authorize the Commission to decide whether the cost is reasonable.

The Commission found, and the plaintiff does not dispute, that the complainants had received the information requested in electronic spreadsheet format in the past, at the cost of the disks needed to contain that information. The Commission further found that the provision of public records in electronic spreadsheet format is commonplace and is not a specialized need. The Commission's conclusion that the plaintiff violated 1-211(a) because the plaintiff could "reasonably provide the complainants with a copy of the requested records in electronic spreadsheet format," was based upon these factual findings. It was also in light of these factual findings that the Commission found that the cost of $14,800 to reprogram the computer system in order to provide the requested information in the medium requested was "an incredible one." The agency bears the burden of showing that it cannot reasonably make the copy requested. Hartford Courant Co. v. Freedom of Information Commission, 261 Conn. 86, 97, 801 A.2d 759 (2002) ("The parties do not dispute that 1-211(a) places the burden on the public agency to demonstrate that it cannot reasonably make the copy requested.") This burden would logically extend to making the showing that the agency cannot reasonably make the copy requested in the medium requested.


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As stated above, the complainants testified that they had received from the plaintiff information they requested in electronic spreadsheet format on diskette in the years prior to their 2002 requests. In light of this undisputed evidence in the record that the complainants had received the information in the electronic spreadsheet format in the past, and the Commission's finding that the provision of such information in that format was commonplace, the court cannot find that the Commission's decision that the plaintiff could reasonably provide the complainants with a copy of the data in the electronic spreadsheet format was erroneous. The plaintiff's claim that it could no longer reasonably provide this information in the medium requested was solely due to the reconfiguration of the computer system, which was an action undertaken by the plaintiff. It was the plaintiff's burden to show that it was unable to reasonably have a copy made of the information requested in the medium requested. Implicit in the Commission's conclusion that the plaintiff could reasonably provide the complainants with the requested records in electronic spreadsheet format was the determination that the Commission failed to meet its burden of proving that it could not reasonably do so. While the plaintiff presented evidence that it was no longer possible to provide the information in the requested format due to the changes it made in its computer system, the Commission was not required to find that the plaintiff's actions in changing its computer system made it reasonable to refuse to provide this information in the requested format unless the


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complainants paid for reprogramming. This determination was made in light of the fact that the plaintiff had previously provided the records in electronic spreadsheet format and the Commission's finding that the provision of records in that format was commonplace. The Commission's finding that the plaintiff violated 1-211(a) by failing to provide the information requested to the complainants on diskette in the electronic spreadsheet format is supported by the substantial evidence in the record. Accordingly, the Commission's finding that the plaintiff violated 1-211(a) must stand.

Because subsections (b) and (c) of 1-211 impose duties upon an agency when buying or modifying a computer system, and the reason the plaintiff gave for it's inability to provide the information in the medium requested by the complainants was the reconfiguration of its computer system, the Commission necessarily looked to those provisions when making its determination of reasonableness. Since an agency already bears the burden of showing that it cannot reasonably make a copy of data in the medium requested, and these subsections (b) and (c) relate solely to agency obligations, the burden of showing compliance with these subsections logically rests with the agency. The Commission reasonably looked to the plaintiff to provide evidence that it had followed the proper procedures when reconfiguring its computer system. Evidence that the plaintiff had complied with subsection (c) could bear on both the Commission's determination of reasonableness under (a) and its determination that the plaintiff had


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entered into a contract that impairs the right of the public under the FOIA to inspect or copy the nonexempt public records under subsection (b). Even if the complainants bore the burden of proving a violation of (b) and (c), however, a finding that the plaintiff violated those sections is not necessary for the finding of a violation of (a). Since the evidence in the record supports the Commission's finding that the plaintiff violated subsection (a) in that the plaintiff could reasonably provide the complainants with the records on diskette in the electronic spreadsheet format, the Commission's order that the plaintiff provide the records in the format requested at no cost to the complainants could stand based upon the violation of subsection (a) alone. Because the Commission also concluded that the plaintiff violated subsections (b) and (c) and the plaintiff raised numerous arguments regarding the Commission's interpretation of these subsections, the court will also address the violations of subsections (b) and (c).

"When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature." (Internal quotation marks omitted.) Hartford Courant Co. v. Freedom of Information Commission, supra, 261 Conn. 99. "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, extratextual evidence of the meaning of the


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statute shall not be considered." General Statutes 1-2z; see also Bell Atlantic NYNEX Mobile, Inc. v. Commissioner of Revenue Services, 273 Conn. 240, 250-51 n. 13,_________________________

A.2d____ (2005). The plaintiff argues that the plain meaning of the terms "inspect or copy" in 1-211(b) should be interpreted to mean that if the public has access to the data, either to inspect or copy, the statutory requirement is satisfied, and the statute does not require the data to be maintained or created in any particular format. This reading of subsection (b), however, ignores the description of the noun "copy" in subsection (a). The plaintiff's reading of subsection (b) as prohibiting an agency only from entering into a contract where the public no longer has access at all to requested public information in an agency's computer system in any medium, allows an agency to enter into a contract that could result in the situation present in this case--reverting back to providing access only through paper copies and impairing the public's right to inspect or copy the information in the medium requested.

In addition, the plaintiff argues that the Commission's reading of the statute leads to the bizarre result of requiring that a reconfigured computer system developed pursuant to a contracts with a private entity must always be capable of providing an individual with exactly the same information in the same format, as long as the individual had requested and received such information prior to the system change. Since "copy" in subsection (a) includes "paper, disk, tape or any other electronic storage device or medium requested by


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the person, if the agency can reasonably make such copy or have such copy made," it appears that the legislature intended to give persons requesting information a choice of medium. To read subsection (b) to be a prohibition only on entering into contracts that would impair any access at all seems to allow agencies to reconfigure their computer systems in such a way that the agency can opt to give persons requesting information no choice of medium. The construction given subsection (b) by the plaintiff runs contrary to the policy of the FOIA favoring the open conduct of government and free public access to government records. The court also notes that the plaintiff's claim that the Commission's interpretation of subsection (b) would encourage agencies seeking to impair access to records to use agency personnel to reconfigure their computer systems rather than contracting with a third party is without merit in that in making this assertion, the plaintiff ignores subsection (c), which requires that the agency consider the rights of the public under the FOIA and consult with the DOIT, regardless of whether the changes to the computer system are made by agency personnel or pursuant to a contract with a third party.

The plaintiff further argues that the Commission erred in finding that it violated (c) because it was the complainants' burden to show that the plaintiff did not comply with the provisions of subsection (c) and the record contained no evidence that the plaintiff did not consult with the DOIT. As stated above, however, the court has previously found that


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since the agency bears the burden of proving that it cannot reasonably provide a copy of information in the medium requested under subsection (a) of 1-211, the agency also bears the burden of showing that it has complied with subsections (b) and (c). As it was the plaintiff that raised the reconfiguration of its computer system as the reason for its inability to reasonably provide the information on diskette as requested, it was the plaintiff's burden to show that it complied with subsection (c) when it made its modifications to the computer system that resulted in its inability to reasonably provide the information as requested. As the plaintiff called the Commissioner, Heffernan, and the director of health care information systems, Klick, to testify that the plaintiff was unable to reasonably make the copy in the medium requested due to the changes it made to its computer system, those witnesses should have also been able to testify that it made those changes in compliance with subsection (c). The court cannot find that the Commission erred in finding that the burden of showing that it consulted with the DOIT rested with the plaintiff, and that it had failed to meet that burden when its witnesses testified that they did not know whether the agency had consulted with the DOIT.

The plaintiff also argues that it had no notice that its compliance with subsection (c) would be an issue in the Commission hearing. As stated above, it was the plaintiff, however, that gave the reconfiguration of its computer system as the reason for its inability to reasonably provide the complainants with the information on diskette as they


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requested. As the plaintiff itself raised this issue and presented testimony from its officials regarding its inability to reasonably provide a copy the information in the electronic spreadsheet format, the court cannot find, under these facts, that the plaintiff had no notice that its compliance with subsection (c) would be raised at the hearing. The plaintiff, having raised the issue of the reconfiguring of its computer system, should have been prepared to address the issue of whether it did so in compliance with subsection (c). Indeed, when one of the complainants, Rollins, questioned Heffernan and Klick regarding whether the plaintiff had consulted with the DOLT, the plaintiff's attorney did not object and both witnesses testified that they did not know. At that time, neither the plaintiff's witnesses nor its attorney raised any claim of lack of notice regarding compliance with subsection (c), nor did they request any time or opportunity to find out the answer. Any claim of surprise or prejudice regarding a lack of notice that its compliance with subsection (c) would be raised at the hearing, when the plaintiff itself raised the issue of the reconfiguration of the computer system, should have been raised by the plaintiff at the Commission hearing. See Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 632, 613 A.2d 739 (1992)("A party to an administrative hearing cannot be allowed to participate fully at hearings, and then, on appeal, raise claims that were not asserted before the board.")


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Finally, the plaintiff argues that the Commission erred in finding that the plaintiff should bear the cost of reprogramming its computer system in order to provide the complainants with the information in the medium requested. General Statutes 1-211 provides that the cost for providing a copy shall be in accordance with 1-212. Section 1-212 provides that 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." The plaintiff claims that it presented an estimate by its consultant that the cost to reprogram its computer system to provide the information in the medium requested by the complainants was $14,800. The plaintiff argues that the Commission's conclusion that the plaintiff, rather than the persons requesting the information, should be responsible for paying for the reprogramming ignores the statutory framework for dealing with such requests. The plaintiff further argues that the Commission was without authority to impose a "reasonableness" standard when looking at the cost, and that even if the Commission was correct in concluding that the plaintiff had failed to consult with DOIT prior to reconfiguring its computer system, the Commission was without authority to impose upon the plaintiff what would amount to a civil penalty of $14,800, far in excess of the maximum allowed upon a finding of a violation of the FOIA under General Statutes 1-206(b)(2).


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The Commission found that "it is inconsistent with the FOI Act to compel the complainants to pay for reprogramming a computer system that was obtained in violation of the FOI Act." (Union ROR, p. 394, Final Decision, 16.) Since the court finds that the evidence in the record and the Commission's interpretation of subsections (a), (b) and (c) of 1-211 supports the conclusions reached by the Commission that the plaintiff violated each of these subsections, the court cannot find that the Commission erred in finding that any costs associated with providing the complainants with the requested records in the electronic spreadsheet format should be paid by the agency rather than the complainants. Pursuant to General Statutes 1-206(c), in any appeal, the Commission may "order the agency to provide relief that the Commission, in its discretion, believes appropriate to rectify the denial of any right conferred by the Freedom of Information Act. The commission may ... require the production or copying of any public record. In addition, upon the finding that the denial of any right created by the Freedom of Information Act was without reasonable grounds . . . the commission may, in its discretion, impose . . . a civil penalty of not less than twenty dollars nor more than one thousand dollars." (Emphasis added.)

The plain wording of 1-206 (c) gives the Commission discretion to order the relief it believes appropriate and does not establish any maximum monetary limit on the amount an agency may have to spend to remedy its violations of the FOIA. The statute


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clearly provides that in addition to the relief ordered, the Commission may impose a civil penalty of up to one thousand dollars for the denial of any right conferred by the FOIA, if the Commission finds that the denial was without reasonable grounds. The court does not need to address the plaintiff's argument that the Commission did not have authority to determine if the $14,800 estimate was reasonable because the Commission's decision that the plaintiff must bear the cost of providing the copy in the electronic spreadsheet format is supported by the evidence in the record, the Commission's correct interpretation of the statutes at issue and the policy of openness underlying the FOIA, regardless of whether the Commission thought the estimate provided by the plaintiff regarding its cost of reprogramming was "incredible."

For all the foregoing reasons, the court finds that the Commission did not err in concluding that the plaintiff violated each subsection of 1-211, and, in light of these conclusions, reasonably imposed upon the plaintiff the cost of reprogramming its computer system in order to provide the complainants with the requested records in the electronic spreadsheet format. Accordingly, the plaintiff's appeal is dismissed.

Peck, J.