Hartford Courant Co. v. Freedom of Information Commission

• Decision Date: 23 July 2002
• Docket Number: (SC 16568)
• Citation: 261 Conn. 86,801 A.2d 759
• Court: Connecticut Supreme Court
• Parties: THE HARTFORD COURANT COMPANY ET AL. v. FREEDOM OF INFORMATION COMMISSION.

261 Conn. 86

801 A.2d 759

THE HARTFORD COURANT COMPANY ET AL. v. FREEDOM OF INFORMATION COMMISSION.

(SC 16568)

Supreme Court of Connecticut.

Argued January 18, 2002.

Officially released July 23, 2002.

Borden, Norcott, Katz, Vertefeuille and Zarella, Js. Ralph G. Elliot, with whom, on the brief, was Stephanie S. Abrutyn, for the appellants (plaintiffs).

Clifton A. Leonhardt, for the appellee (defendant).

Matthew B. Beizer, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (intervening defendant).

Opinion

VERTEFEUILLE, J.

The dispositive issue in this appeal is whether the fee for producing an electronic copy of certain criminal conviction information from the defendant department of public safety (department)¹ should be calculated pursuant to the fee provision of the Freedom of Information Act (act), General Statutes § 1-212 (b),² or pursuant to General Statutes § 29-11 (c),³ a statute establishing fees generally to be charged by the department for services it provides. We conclude that the fee for producing the copy must be calculated pursuant to § 1-212 (b). We therefore reverse the judgment of the trial court.

The named plaintiff, The Hartford Courant Company, and the plaintiff Jack Dolan, one of its reporters, appealed to the Appellate Court from the judgment of the trial court dismissing their appeal from the commission's decision that § 29-11 (c) governed the fee for producing the electronic copy they had requested.⁴ We transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

The following facts and procedural history are relevant to our resolution of this appeal. Pursuant to the act, the plaintiff requested from the department an electronic copy of the public portion of all of the department's criminal history records for all of the adults in those records. Specifically, the plaintiff sought "a digital copy of all of the fields of information typically produced on a Bureau of Identification rap sheet for every adult within the database" on either a tape or CD-ROM. In accordance with § 1-212 (b), the plaintiff agreed to pay the department a fee equal to the cost the department would incur in producing the electronic copy of the database. In response to this request, the department informed the plaintiff that the fee for complying with this request would be $20,375,000 as calculated pursuant to § 29-11 (c). The department arrived at that figure by multiplying the number of individual records contained in the database (815,000) by the $25 fee per search mandated by § 29-11 (c) (7). The plaintiff subsequently filed a complaint with the commission, claiming that the fee to be charged should be governed by General Statutes §§ 1-211 (a)⁵ and 1-212 (b) of the act, rather than by § 29-11 (c). The plaintiff argued before the commission that the fee should be calculated pursuant to § 1-212 (b), which requires that the fee for an electronic copy of public information stored on a computer "shall not exceed the cost thereof to the public agency." The commission, relying on the language "[e]xcept as otherwise provided by state statute" contained in § 1-211 (a), rejected this argument. The commission found that the plaintiff's request was a "criminal history record information search" within the meaning of § 29-11 (c), and that § 29-11 (c) constituted an exception to the act. The commission, therefore, determined that the proper fee for the plaintiff's request was $20,375,000, calculated pursuant to § 29-11 (c) in the manner described previously.

The plaintiff appealed from the decision of the commission to the trial court, which affirmed the commission's determination that the fee for the copy requested by the plaintiff was governed by § 29-11 rather than § 1-212 (b). The trial court reached this conclusion, however, pursuant to reasoning different from that relied upon by the commission. The trial court determined that the plaintiff's request required the department to create a document that previously did not exist. The trial court based this ruling on testimony of department employees, who testified that the department did not have the immediate technological capability of producing a digital copy of the public portion of the entire database of criminal conviction information. Those employees testified that, in order for the department to comply with the plaintiff's request, a new computer program would have to be written to separate the public portion of the conviction information from the nondisclosable portion of that information, and to place the information in a usable digital format. The trial court concluded that such a task was beyond the scope of the obligations imposed on the department by the act. The trial court further concluded that, even if the department had been required by the act to create a program to comply with the plaintiff's request, there was insufficient evidence in the record to support the conclusion that the plaintiff's request was reasonable, a finding required by § 1-211 (a). See footnote 5 of this opinion. The trial court based its finding on testimony given by employees of the department that writing a new program to comply with the plaintiff's request would take "weeks" of effort.

Having determined that the fee to be charged for complying with the plaintiff's request was not governed by the act, the trial court concluded that § 29-11 was "the appropriate alternative and exception to [the act]." Accordingly, the trial court upheld the commission's determination that the appropriate fee for producing the requested records was $20,375,000, calculated in accordance with § 29-11 (c) (7). This appeal followed.

I

The first issue that we address is whether the trial court properly determined that the fee for producing an electronic copy of the requested criminal conviction information is governed by § 29-11 (c) instead of § 1-212 (b) because the plaintiff's request required the defendant to create a document that previously did not exist. The plaintiff argues that the conclusion of the trial court was improper because the plaintiff's request does not require the creation of a new document but instead requires only that information already in the department's computer storage system be formatted for disclosure in the form requested by the plaintiff. We agree.

The issue of whether the plaintiff's request, which requires the development of a new computer program, falls outside the provisions of the act presents a question of statutory construction. Therefore, our review of the trial court's decision is plenary. See Vibert v. Board of Education, 260 Conn. 167, 170, 793 A.2d 1076 (2002).

We begin with the language of the statutes in question. Section 1-211 (a) provides that "[a]ny 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." (Emphasis added.) Section 1-212 (b) provides in relevant part: "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; [or] (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. . . ." (Emphasis added.)

The plaintiff's request for the criminal conviction information in either tape or CD-ROM format clearly falls within the broad language of § 1-211 (a), specifically the language requiring the disclosure of "any non-exempt data . . . ." The flexibility and breadth of this statute is further illustrated by the language providing that a copy of such data shall be provided "on paper, disk, tape or any other electronic storage device or medium requested by the person. . . ." General Statutes § 1-211 (a). There is no indication in the language of § 1-211 that the scope of that statute is restricted to document formats currently in existence. Indeed, such a conclusion is belied by the fee provisions contained in § 1-212 (b), which permits an agency to include in its fee for a request pursuant to § 1-211 (a) "[a]n amount equal to the hourly salary attributed to all agency employees engaged in providing the requested computer-stored public record, including their time per-forming the formatting or programming functions necessary to provide the copy as requested"; (emphasis added) General Statutes § 1-212 (b) (1); or "[a]n 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 . . . ." General Statutes § 1-212 (b) (2). Section 1-212 (b) contemplates that an agency may be required to perform formatting or programming functions, or that the agency may contract with an outside entity to perform such functions, in order to comply with requests pursuant to...