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Final Decision FIC2013-337
In the Matter of a Complaint by
FINAL DECISION
John Llewellyn,
     Complainant
     against
Docket #FIC 2013-337
Superintendent of Schools,
Fairfield Public Schools;
Director of Finance &
Business Services, Fairfield
Public Schools; and
Board of Education,
Fairfield Public Schools,
     Respondents
April 9, 2014

     The above-captioned matter was heard as a contested case on November 5, 2013 and January 31, 2014, at which times 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.  It is found that, by email dated February 6, 2013, the complainant requested copies of the following records:
(a) Any and all electronic accounting records that relate to cash receipts and disbursements, including all related accounting and/or booking detail for the fiscal year 2011/2012 and year-to-date 2012/2013.  Please include Fund Code, School Code, Department Code, Class Code, Program Code, Objection Code, amount, check or wire transfer number, transaction description or memo field (as available), and any other accounting codes that are utilized to book entries to your general ledger. . . . For the purposes of payroll related data, please do not include any personally identifiable information.  This data should be in a raw electronic format, such as database tables, Excel or csv or txt.
(b) In addition, it is found that the complainant made the following additional requests and comments:
1. Please provide a chart of accounts and descriptions related thereto;
2. Please provide any field definition tables that will establish relationships between accounts and sub-accounts, as well as data tables and fields;
3. Please provide the latest detailed actual to budget report at the object level in an electronic format, such as Excel, csv, txt or a database format.  If one of the formats is not available, please provide as a PDF;
4. Please provide me with a list of all reports that can be generated by your accounting and or booking systems.  This list should include both “standard” and “custom” reports;
5. In addition, please provide the latest open accounts payable report generated including vendor level details;
6. For records that were generated electronically, I am asking that those records be in their native electronic format . . . . If any documents MUST be provided in a PDF format, then those PDFs should be searchable;
7. If, in their native format, some records are in hard copy, then I would like to examine those records prior to deciding which ones should be copied;
8. Please provide the record(s) on a disc or hard drive; and
9. As this request is for several simple data extracts, it is not meant to be time consuming or burdensome in its preparation.  If you would like me to have a conversation with one of your accounting/IT staff to clarify data formats or other technical aspects, please let me know and I will be happy to sit with them.
     3.  It is found that, by email dated February 7, 2013, the respondents acknowledged the complainant’s request.  In their acknowledgement, it is found that the respondents informed the complainant that they had someone already working on the request, but that the Finance and Business Office was very busy, and that the respondents might not be able to respond as quickly as the complainant desired. 
     4.  It is found that, prior to the filing of the appeal and by email dated March 13, 2013, the respondents informed the complainant that, upon payment of $8.95 (the cost of a flash drive), the following fifteen categories of records would be provided to him: 1) Balance Sheets (2012-13); 2) Balance Sheet Accounts (2011-12); 3) Revenue (2012-13); 4) Revenue (2011-12); 5) Chart of Accounts; 6) Reports – Forms – Utilities; 7) Object Code Descriptors; 8) School Budget Descriptors; 9) Detail Object Descriptors; 10) Summary Object Descriptors; 11) Location Descriptors; 12) Program Descriptors; 13) Department Descriptors; 14) Funding Source Descriptors; and 15) Statement of Account – Detail by Summary. 
     5.  It is further found that, in the March 13, 2013 email, the respondents informed the complainant that the remaining records would have to be reviewed to see if redactions were required pursuant to Family Educational Rights and Privacy Act, 20 U.S.C. §1232g (“FERPA”).1   It is found that, because the records needed to be printed out before they were reviewed, the respondents sought prepayment of copying fees in the amount of $1,686.50.  In addition, it is found that the respondents informed the complainant that they would be assessing a fee relative to the hourly salary attributable to Board employees engaged in providing expenditure reports, including their time performing the necessary redactions.

1
The Family Educational Rights and Privacy Act, commonly referred to as "FERPA," is a federal law that protects the privacy of student education records.
     6.  It is found that, by email dated March 19, 2013, the complainant corresponded with the respondents, indicating that he had reviewed the records provided to him on the flash drive.  It is further found that the complainant summarized the four categories of records that he considered to be outstanding, as follows:  1) list of all funds and definitions related thereto; 2) tables corresponding to SRC, REF1, REF2, REF3, and JNL; 3) cash disbursement reports; and 4) accounts payable aging, including vendor detail, without the memo field.  In addition, the complainant contended that, because FERPA related information could only be located in the memo field of expenditure reports, by eliminating this field, the respondents would not have to redact the records.  It is further found that the complainant expressed displeasure with the format in which the records had been provided to him, indicating the all additional electronic records should be provided to him “as either an Excel file, delineated text file, CSV file or database file.”  Finally, it is found that the complainant requested that the outstanding records be provided to him within two business days. 
     7.  It is found that, by email dated March 20, 2013, the respondents informed the complainant that they were still working on his request, but that they required additional time.  It is further found that the respondents indicated that they should have some additional records prepared for the complainant within one week.
     8.  It is found that, by email dated March 26, 2013, the complainant requested that the respondents provide him with an update on the status of the outstanding records. 
     9.  It is found that, by email dated April 3, 2013, the respondents provided the complainant additional responsive records.
     10. Thereafter, it is found that, by email dated April 24, 2013, the complainant again requested an update on the status of the outstanding records. 
     11. It found that, by email dated April 29, 2013, the respondents responded to the complainant’s request for an update, provided additional records, and requested some clarification.  Specifically, it is found that the respondents confirmed the four outstanding categories of records, as set forth by the complainant.  See ¶ 6, above.  With regard to the third category, the respondents sought the following clarification:  “Is your reference to ‘Cash Disbursement Reports,’ a reference to the Statement of Account – Detail by Summary?”  It is found that the respondents needed clarification in order to determine whether the records needed to be reviewed for FERPA related information. 
     12. It is found that, by email dated May 2, 2013, the complainant replied to the respondents in a two page letter.  However, it is found that the complainant did not respond to the respondents’ request for clarification; rather, it is found that he demanded that the respondents “immediately” comply with his request.  Additionally, it is found that the complainant again expressed his displeasure with the format in which the records had been provided to him, as follows:  “Additionally, the information that your office provided has been in the pdf format, which makes it difficult to analysis [sic] and thus much less transparent to the reader.”
     13. It is found that, by email dated May 24, 2013, the respondents replied to the complainant’s May 2, 2013 correspondence.  It is found that the respondents noted that they had been doing their best to provide the complainant with the requested records, but that the complainant had neglected to respond to their request for clarification.  It is further found that the respondents informed the complainant that they had been providing the records in a searchable PDF format to protect the integrity of the information contained in the documents.  It is further found that, while the respondents were not required to do so under the FOI Act2, they used their May 24, 2013 correspondence as an opportunity to respond to some of the questions that the complainant had been asking throughout the process.

2
See, e.g., Chad St. Louis v. Chief Med. Examiner, State of CT, Office of the Chief Med. Examiner, et al., Docket #FIC 2009-389 (May 4, 2010) (dismissing the complainant's appeal concerning the respondents' failure to answer questions because "nothing in the FOI Act requires public agencies to answer questions").
     14. By email dated May 31, 2013, and filed June 3, 2013, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying his request for a copy of or access to the records described in paragraph 2, above.3 

3
The Commission notes that, subsequent to the filing of his appeal, and by email dated April 1, 2013, the complainant forwarded the respondents the following additional records request: "Can you please provide me with an electronic copy of the "Statement of Account - Detail by Summary" for FYE 2011/2012. . . . As this is an informal request, could you please let me know whether this is something that can be forwarded to me over the (stet) day or two. . . . ?" It is found that, by email dated April 3, 2013, the respondents provided the complainant with the requested records, thereby satisfying the second FOI request.
     15. 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.
     16. 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…. (Emphasis supplied).
     17. Section 1-212, G.S., provides in relevant part that:
(a) Any 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.  The fee for any copy provided in accordance with the Freedom of Information Act:  
. . . .
(B)  By all other [municipal] public agencies, as defined in section 1-200, shall not exceed fifty cents per page.  If any copy provided in accordance with said Freedom of Information Act requires a transcription, or if any person applies for a transcription of a public record, the fee for such transcription shall not exceed the cost thereof to the public agency.
(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.  Notwithstanding any other provision of this section, the fee for any copy of the names of registered voters shall not exceed three cents per name delivered or the cost thereof to the public agency, as determined pursuant to this subsection, whichever is less.  The Department of Administrative Services shall provide guidelines to agencies regarding the calculation of the fees charged for copies of computer-stored public records to ensure that such fees are reasonable and consistent among agencies.
(c) A public agency may require the prepayment of any fee required or permitted Board employees under the Freedom of Information Act if such fee is estimated to be ten dollars or more. . .
     18. It is found that the requested records are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
     19. With regard to the four category of records deemed outstanding according to the complainant, see ¶ 6, above, the following findings are made.
     20. With regard to the first category of outstanding records (a list of all funds and definitions related thereto), it is found that, on April 29, 2013, the respondent provided the complainant with all of the records responsive to this request. 
     21. With regard to the second category of outstanding records (tables corresponding to SRC, REF1, REF2, REF3 and JNL), it is found that the respondents understood the complainant to be seeking definitions for various abbreviations.  The fact that this was the respondents’ understanding of this particular request is evidenced by their April 29, 2013 email, in which they say the following: 
. . . this information is only defined in the system, but the abbreviations are intuitive.  For example, SRC is ‘source.’  However, I have attached a ‘Source Code Table’ that is available for your reference.   
     22. While the complainant testified that he was seeking something very different than what was provided to him, it was reasonable for the respondents to have interpreted this second category of outstanding records to be a request for definitions—especially since the first category of outstanding records (as defined by the complainant) was a request for a list and the definitions related to such list.  See ¶ 6, above.  While the complainant describes his overall request in this case as one seeking “several simple data extracts,” it is found that it was not always clear what the complainant was seeking.  It is concluded that the respondents did not violate the FOI Act when they provided the complainant with the Source Code Table in response to the second category of outstanding records. 
     23. With regard to the third category of outstanding records (cash disbursement reports), it is found that the respondents provided the complainant with the cash disbursement reports pertaining to “the general fund.”  It is found, however, that the general fund is only one of eleven funds that the respondents maintain.  The complainant contends that the respondents should have known that he desired the cash disbursement reports from all eleven funds, and not just from the general fund.  It is found that the complainant had the opportunity to clarify this aspect of his request on April 29, 2013, when the respondents sought specific clarification with regard to the third category of outstanding records.  See ¶ 11, above.  It is found, however, that the complainant did not respond to the respondents’ request for clarification.  It is further found that it was reasonable for the respondents to provide the complainant with the cash disbursement reports pertaining only to the general fund in response to the third category of outstanding records.
     24. Nonetheless, it is found that, between the time of the November 4, 2013 contested case hearing and the January 13, 2014 continued contested case hearing, the respondents worked to provide the records from the ten other funds to the complainant.  It is further found that, before providing these records to the complainant, the respondents met with the complainant and removed certain fields from the overall structure of the records, in order to provide them to the complainant without FERPA related information.4   It is found that these records totaled approximately 12,000 pages, and were provided to the complainant on a flash drive.  It is found the complainant was only required to pay the respondents $8.95 for these records, which was the cost of the flash drive.

4
At the continued contested case hearing, the complainant contended that the respondents over-redacted the records providing to him with regard to FERPA. However, it is found that the respondents redacted the records in accordance with the data extraction instructions provided to them by the complainant. The complainant also contended that records provided to him did not contain teacher payroll information. However, it is found that the general ledger information provided to the complainant did reveal the total amount of payroll disbursed. In addition, it is found that the complainant's original request stated that, with regard to payroll related data, "please do not include any personally identifiable information." See 2.b, above. It is found that the complainant's March 19, 2013 correspondence to the respondents did not include payroll information as one of the categories of outstanding records. See 6, above. It is further found that the complainant did not raise an issue with regard to payroll-related records at the November 5, 2013 hearing. Accordingly, it is found that the respondents were not unreasonable in understanding the request to be one for overall payroll information and not one seeking individual payroll information.
     25. With regard to the fourth category of outstanding records (accounts payable aging), it is found that the respondents do not maintain an electronic accounting record, (see ¶ 2.a, above), pertaining to a category of records referred to as “accounts payable aging,” (see ¶ 6, above).  It is found that the respondents do prepare a document at the end of the year pertaining to outstanding food services’ invoices.  It is found, however, that the respondents could not determine whether this was a record that the complainant was requesting.  It appears that some discussion with respect to this fourth category of records might have been very helpful to both of the parties.  Nonetheless, because the respondents do not maintain an electronic “accounts payable aging” record, it is concluded that they did not violate the FOI Act by not providing such a record to the complainant.5

5
The respondents agreed on the record at the November 5, 2013 contested case hearing to forward their year-end document pertaining to outstanding food services' invoices to the complainant.
     26. With regard to the form of the records, it is found that the requested records are currently maintained electronically in a system called Munis.  It is further found that, in order to provide the records to the complainant, the records had to be converted—that is, exported from Munis into some format.  It is found that the majority of records provided to the complainant were converted into a searchable PDF format, in accordance with one of the complainant’s format preferences.  See ¶ 2.b.6, above.  It is found that the respondents did not charge the complainant for the conversion process.  It is further found that the records which were not provided to the complainant in a searchable format were converted by the complainant into searchable records.
     27. It is found that the respondents did not provide the records in a “native” format because they believed that doing so would compromise the security and integrity of the records, in that the records could be altered and, thereafter, represented as original records.  It is further found that, with respect to the financial records requested in this case, it is the respondents’ policy to disclose such records only in a secured format. 
     28. It is found that §1-212(a), G.S., covers, generally, the method by which a public agency may choose, in its discretion, to provide a public record to a requester.
     29. It is found that §1-211(a), G.S., specifically covers computer stored public records.
     30. 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.
     31. Notwithstanding the complainant’s contention, §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 agency).  Section 1-211(a), G.S., does not, however, by any of its terms, obligate a public agency to provide a copy of a computer stored public record in the computer format requested by a requester. 
     32. It is concluded that, while the complainant is entitled pursuant to §1-211(a), G.S., to request that a copy of the records be provided to him (that is, delivered) in a certain manner, the respondents are not required by the FOI Act to provide the data in the format requested and it is concluded that the respondents did not violate the FOI Act by denying the complainant’s request in this regard. 
     33. With regard to the copying costs, it is found that were approximately 3,400 pages of records that were initially not provided to the complainant.  It is found that the respondents believed that these records would have to be printed, reviewed for FERPA related information, and redacted as necessary.  It is found that the respondents are statutorily permitted to charge fifty cents per page.  See §1-212(a)(2)(B), G.S.  It is found that the respondents are permitted to request prepayment when copying fees total ten dollars or more.  See §1-212(c), G.S.  Accordingly, it was not a violation of the FOI Act when the respondents requested that the complainant prepay the costs associated with copying the records.  See ¶ 5, above.  However, it is noted that the respondents were ultimately able to provide the records on a flash drive or by email, and did not charge the complainant a per page fee. 
     34. Finally, it is found that the respondents initially sought to have the complainant prepay the fees associated with certain Board employees’ time redacting the requested records.  The testimony in this case established that the redactions concerned FERPA related information. 
     35. In this case, while there is federal statute that prohibits disclosure of student related information, the respondents were able to electronically redact such information from the records prior to their disclosure, which thereby eliminated the redaction fee.  However, it is found that the subject of electronic redaction was first considered during the November 5, 2013 contested case hearing.  It is concluded that the respondents did not violate the FOI Act by initially believing it would be necessary to perform a manual redaction of the requested records.
     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 April 9, 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:
John Llewellyn
524 Sturges Road
Fairfield, CT  06824
Superintendent of Schools, Fairfield Public Schools;
Director of Finance & Business Services, Fairfield
Public Schools; and Board of Education,
Fairfield Public Schools
c/o Joshua J. Wyatt, Esq.
Durant, Nichols, Houston, Hodgson & Cortese-Costa
1067 Broad Street
Bridgeport, CT  06604

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2013-337/FD/cac/4/9/2014