The Connecticut Appellate Court ruled this week that a state open records law provision permitting records requesters to use “hand-held scanner[s]” to copy records excludes the use of flatbed scanners. Under the court's interpretation of the statute, requesters seeking to scan public records using their own scanning devices may now be limited to using those that are actually "hand-held."
Title search company operator Thomas Germain argued that his portable, flatbed scanner fit within the law’s definition of “hand-held scanner” – “a battery operated electronic scanning device” that does not leave marks on the records or “unreasonably interfere” with agency operations. However, the court – affirming the rulings of the state Freedom of Information Commission and the lower court – stated that to adopt Germain’s interpretation would “render meaningless the word ‘hand-held’” in the statute. It quoted the Commission’s definition of a “hand-held” scanner as one that is “held in one’s hand and is moved by hand across the document being scanned.” Since Germain’s scanner did not meet this element, the court declined to address whether it would actually damage the records being scanned.
“It just doesn’t make any sense,” said Germain, who relies on land records in conducting title searches on properties for his clients. “A flatbed scanner is the same thing as a photocopier, which is what all the town clerks use.”
Colleen Murphy, executive director and general counsel for the Commission, said town clerks are concerned with maintaining the integrity of records, and worry about the effects of unstapling and restapling on older, fragile documents.
“Some of the books go back many, many years" in clerks' offices, said Timothy O’Neil, administrative staff attorney for Manchester, Conn., which opposed Germain in the case. "Anything other than a hand-held scanner would theoretically jeopardize the integrity of the books.”
Germain also challenged the fact that the commission, in ruling against him, overruled its own 2005 opinion in which it held that a portable scanner that rested on a flat surface and required pages to be fed through rollers was a “hand-held scanner” because it otherwise met the statutory definition. The Commission in that case found that a flatbed scanner did not leave marks. It also rejected both the claims that the legislature must have – in specifying “hand-held” – intended to avoid the removal of staples, and that removing staples could disrupt office operations.
However, the court upheld the commission's overruling of its earlier opinion, holding that the commission came to its new, 2010 conclusion “appropriately” and “reasonably.”
Murphy says that while the commission is “sympathetic” to Germain’s case, it was “constrained” in interpreting the provision as it is written. She explains it was added to the open records law in 2002 in the legislature’s attempt to “remedy” the outcome of a 2001 case in which a Connecticut Superior court ruled that a records requester – a title examiner – could not use a “hand-held scanner” to copy land records.
“It was exactly the type of scanner that the legislature then permitted to be used [in the statute],” said Murphy. She notes that while other methods may now exist by which requesters can copy documents themselves without harming the documents, "the statute hasn’t caught up with that yet."
According to the opinion, Germain began using his portable, flatbed scanner for his business-related copying in Manchester in 2002, and the litigation began when the town clerk told him in 2009 that he could no longer use it. While Germain owned a hand-held scanner, he explained to the Commission that using it was “more difficult” because it requires a steady hand in dragging the device across the pages.
Murphy says Tuesday’s ruling could cause the legislature to take “another look” at the statute.
Germain, who represented himself and has a law degree, says he does not plan to appeal the ruling.
Related Reporters Committee resources:
· Connecticut – Open Government Guide: e. Other.