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The Hartford Courant took a potentially groundbreaking electronic data case to the Connecticut Supreme Court Jan. 18, but it may make slow progress due to a lack of prior spadework. The newspaper is attempting to get the state police to let it buy the whole database of 815,000 criminal records in its computers. Three years ago, when Courant staff writer Jack Dolan asked the Department of Public Safety for the records, the agency multiplied its files by the statutory $25 fee per record and came up with a whopping $20 million proposed bill. In an appeal before the Freedom of Information Commission, Dolan argued his case without the aid of a lawyer or outside computer expert. The FOIC sided with the state police, agreeing that the $25 per record charge was reasonable, even when the records could be provided through a computer search. The Courant offered to pay to have a software program created that would remove any part of the criminal records that is not subject to release under the Freedom of Information Act. Those include arrests that did not lead to convictions, or the names and private information of juveniles. The newspaper also suffered a setback when it appealed to New Britain, Conn., Superior Court Judge Henry S. Cohn, who ruled April 27, 2001, that the Courant was basically asking the DPS to create a new document, not just copy an existing paper document in electronic form. NO GEEK Ralph G. Elliot, the Courant‘s appellate advocate in its appeal, is one of Connecticut’s most accomplished practitioners. A senior partner in the Hartford, Conn., offices of Tyler, Cooper & Alcorn, constitutional scholar Elliot is known for multiple talents. Computer geekdom isn’t one of them — a fact noted early in his argument by Connecticut Supreme Court Justice David M. Borden, in a playful mood. He wanted to know whether this was a case Elliot really wanted to argue, “knowing your aversion to modern technology.” With a smile, Borden quipped, “Have you put aside your quill pens?” “There will be no Luddite arguments,” Elliot shot back cheerfully. But, in fact, because of a lack of clear explanation in the case record of how much work it would take to separate public from non-public data, Elliot’s efforts to simplify the case were not enlightening. He said the Courant wanted to pay a single fee to have someone at the DPS push a button. The question is one of “taking the data apple and slicing it in half — we get one half and the DPS gets the other.” Borden then asked Elliot about the factual record at the agency hearing. “The evidence before the FOIC — was it unequivocal? How concrete was it that it would take one week, or two weeks or three weeks to do this?” He went on to answer his own question, saying it seemed to be “a kind of off-the-cuff first stab at it.” At the FOIC hearing, reporter Dolan gamely proceeded without the aid of Elliot, or any other lawyer. The Courant didn’t have a computer expert to offer testimony, so the best evidence supporting the Courant‘s case came from a computer professional within the Department of Public Safety itself. Fred Oldenburg, the DPS data processing manager, was asked by a DPS lawyer whether programming the Courant‘s request would cost $20 million. “No, I don’t think it would cost that,” he answered. It wouldn’t even cost $1 million, he estimated. However, he said, “We’re talking weeks of effort to look at the database, lay down the rules and write the program and then we would have to check and make sure everything was correct. We couldn’t just write it and give it to you, we’d have to print it out and look at it because it is very sensitive data,” Oldenburg testified at the 1999 FOIC hearing. Borden said that even if the Courant were right on the law, there would probably have to be more fact finding done to figure out the price of its request. “This looks awful murky,” he mused. Assistant Attorney General Matthew Beiser, arguing for the DPS, said the FOI law takes a back seat to the specific fee-setting statute that prices criminal records at $25 apiece. That record-by-record approach should prevail under C.G.S. � � 29-11 “due to the unique and sensitive nature of the information” in the police files. “Our position is that this is outside the FOIA,” Beiser contended. Not if someone is willing to come up with $20 million, Borden noted, adding “this strikes me as a somewhat bizarre result.” On rebuttal, Elliot contended that the request is fully covered by the FOIA, and should be sifted and delivered as requested.

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