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Final Decision FIC2013-242
In the Matter of a Complaint by
FINAL DECISION
Alan DiCara,
     Complainant
     against
Docket #FIC 2013-242
Town Manager, Town of Winchester; and
Town of Winchester
     Respondents
March 26, 2014

     The above-captioned matter was heard as a contested case on October 28, 2013 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 e-mail filed on April 19, 2013, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his request for records to be provided in a particular computerized format.
     3.  It is found that the complainant made an April 18, 2013 request for an electronic copy of the proposed 2013-2014 budget in a Microsoft Excel format in lieu of the PDF format the town made available.
     4.  It is found that the respondent Town Manager replied on April 18, 2013 that the town did not use Excel to create the budget worksheets, and that the software currently used by the town was not convertible to Excel.
     5.  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.
     6.  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 (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. Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void.
     7.  Section 1-211, G.S., provides in relevant part that:
(a) [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, including an electronic copy sent to the electronic mail address of the person making such request, if the agency can reasonably make any such copy or have any such copy made….
(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;
     8.  Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record. The type of copy provided shall be within the discretion of the public agency, except (1) the agency shall provide a certified copy whenever requested, and (2) if the applicant does not have access to a computer or facsimile machine, the public agency shall not send the applicant an electronic or facsimile copy.”
     9.  It is found that the requested record is a public record within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
     10. It is found that the requested budget is made available to the public by the respondents in PDF format.
     11. It is also found that the requested record is a computer-stored public record within the meaning of §1-211, G.S.
     12. The sole issue in this case is whether the complainant is entitled to receive the proposed budget in the Excel computer format he requested.
     13. It is found that §1-212(a), G.S., covers, generally, the methods by which a public agency may choose, in its discretion, to provide a public record to a requester.
     14. It is found that §1-211(a), G.S., specifically covers computer stored public records.
     15. It is found that paper, disks, tapes, and electronic storage devices or mediums, are all methods of delivery within the meaning of §1-211(a), G.S., while PDF and Excel format are two proprietary electronic document formats, among several, used to physically arrange data, characters, fields, records, and files for document use and delivery.
     16. Section 1-211(a), G.S., only provides the requester with the option to request a specific method of delivery of nonexempt computer stored data and that the public agency is required to use the method of delivery requested if it reasonably can do so or have it done (e.g., have the data copied or burned to a disk by some other agency).  Section 1-211(a), G.S., does not, however, by any of its terms, obligate a public agency to provide a copy of computer stored public record in the computer format requested by a requester.   See Fromer v. Esty, Docket #FIC 2012-158.
     17. It is found that the respondents are not required by the FOI Act to provide the data in the Excel format requested and it is concluded that the respondents did not violate the FOI Act by denying the complainant’s request.

     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 26, 2014.
__________________________
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:
Alan DiCara
244 South Road
Winsted, CT  06098
Town Manager, Town of Winchester; and
Town of Winchester
338 Main Street
Winsted, CT  06098

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2013-242/FD/cac/3/26/2014