FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Stephen Whitaker,  
  Complainant  
  against   Docket #FIC 2006-478

Commissioner,

State of Connecticut

Department of Public Works,

 
  Respondent August 22, 2007
       

           

The above-captioned matter was heard as a contested case on February 27, 2007, at which time the complainant and the respondent 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 respondent is a public agency within the meaning of 1-200(1), G.S.

 

2.  By letter of complaint filed September 15, 2006, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying his request for public records.

 

3.  It is found that, by letter dated December 1, 2005, the complainant requested that the mayor of Stamford provide him, among other records no longer at issue, with all the city’s GIS (Geographical Information System) data, to be delivered on an external hard drive, including:

 

a.       digital orthophotography;

b.      digital elevation models (“DEMs”);

c.       digital GIS coverages, layers, themes, shapefiles, geodatabases, etc;

d.      digital tax assessment database(s);

e.       digital building permit database(s);

f.        digital building and housing code violations database(s);

g.       digital or paper GIS data documentation/metadata; and

h.       other town data referenced to or linked to the GIS data; i.e., U.S. census data.

 

4.  It is found that, on January 17, 2006, the City of Stamford, through its attorney, requested a determination from the respondent Commissioner of Public Works whether he had reasonable grounds to believe that disclosure of some of the GIS data may result in a safety risk, within the meaning of 1-210(b)(19), G.S.

 

5.  It is found that representatives from the City and the respondent engaged in research and discussions concerning the requested GIS data.

 

6.  It is found that the respondent ultimately determined on June 12, 2006 that he had reasonable grounds to believe that disclosure of the following GIS data may result in a safety risk:

 

…those “data layers” that graphically indicate, by overlaying detailed aerial photography, the specific location, size, connections and characteristics of the following facilities and structures: dry hydrants for use by fire services; fixed fire hydrants; sanitary sewer manholes and sewer lines and sewage pumping stations; storm drains, manholes and lines; catch basins; underground utility lines and access points; and any ditches, levees or other features necessary for flood management

 

7.  It is found that, on August 30, 2006, the City of Stamford provided the requested GIS data, on a hard drive it had purchased, but with the data described in paragraph 6, above, removed from the data on the hard drive.  The City charged $50.00 for the data and hard drive.

 

8.  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.

 

9.  Section 1-210(a), G.S., provides in relevant part:

 

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. 

 

10.  Section 1-211(a), G.S., provides in relevant part:

 

Any 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.

 

11.  Section 1-210(b)(19), G.S., provides in relevant part that disclosure is not required of:

 Records when there are reasonable grounds to believe disclosure may result in a safety risk, including the risk of harm to any person, any government-owned or leased institution or facility or any fixture or appurtenance and equipment attached to, or contained in, such institution or facility, except that such records shall be disclosed to a law enforcement agency upon the request of the law enforcement agency.  Such reasonable grounds shall be determined (A) with respect to records concerning any executive branch agency of the state or any municipal, district or regional agency, by the Commissioner of Public Works, after consultation with the chief executive officer of the agency …. 

12.  It is found that the records requested by the complainant are public records within the meaning of 1-200(5), 1-210(a) and 1-211(a), G.S.

 

13.  The complainant contends that the data removed from the hard drive provided to him is not exempt from disclosure pursuant to 1-210(b)(19), G.S.  More specifically, the complainant contends that the City has released water and sewer data to developers and engineering firms, but not to him; that it is logically inconsistent to withhold data about visible structures, such as hydrants, storm drains and manhole covers; and that a community is better prepared to deal with an emergency when more citizen responders know where the critical infrastructure is located and therefore how better to keep a watchful eye or be prepared to protect it.

 

14.  It is concluded however, that the City’s release of similar data to developers and engineering firms is not binding on the respondent’s determination of whether release may result in a safety risk.

 

15.  It is also concluded that there is no logical inconsistency in withholding GIS data about visible structures, because the GIS data contains information not apparent from the structures themselves, or photographs of the structures, such as the direction of underground piping or utilities.

 

16.  It is also concluded that how a community is better prepared to deal with emergencies is a factor to be weighed in the judgment of the respondent.

 

17.  In general, the respondent’s witness, the Director of Safety and Security for DPW, testified credibly that it was his opinion that disclosure of the withheld data may result in a safety risk.  Without attempting to describe all of the facts for the respondent’s belief that disclosure of the GIS data may result in a safety risk, it is found, for example, that the GIS data described in paragraph 6, above, contains information not available from visible inspection or a photograph.  For example, the GIS data contains information about the direction of underground piping or utilities, and the circumference and location of undergrounds pipes.  Knowledge of the direction of the water supply would be useful to an individual seeking to introduce chemicals to the water supply.  Knowledge of the size and location of sewer mains would be useful to an individual seeking to access and harm public buildings or utilities through those sewer mains.

 

18.  It is found, however, that the respondent had reasonable grounds to believe that disclosure of the GIS data described in paragraph 6, above, may result in a safety risk, within the meaning of 1-210(b)(19), G.S.

 

19.  The complainant nonetheless contends that this Commission must determine whether the respondent’s grounds for withholding the requested data are reasonable in terms of the Supreme Court’s decision in as Director, Department of Information Technology of the Town of Greenwich v. Freedom of Information Commission, 274 Conn. 179 (2005). 

 

20.  It is concluded, however, that Greenwich v. FOIC, above, in which the town of Greenwich failed to consult with the respondent, provides no standard by which the reasonableness of the respondent’s determination is to be judged.

 

21.  Finally, the complainant additionally contends that the respondent’s witness “testified that he had no factual evidence to support his opinions that this data should be exempt,” and that therefore the witness’s opinion should not be accepted.  However, a better characterization of the witness’s testimony is that he had no knowledge of anyone actually using the requested data to inflict harm in the ways described in paragraph 17 above.  Essentially, the testimony contained an element of speculation about the possibility of a safety risk.  As the Superior Court recently stated in Department of Correction v. FOIC, Docket No. CV064012025S, Superior Court, J.D. of New Britain, Memorandum of Decision dated July 3, 2007 (Levine, J.):

 

The statutory phrases "reasonable grounds to believe" and "may result" establish a standard which has an inherently subjective component. That is, whether reasonable grounds exist to believe that something may happen cannot be scientifically established. That test can only be established by opinion evidence.

      An opinion, not representing certainty, necessarily has an element of speculation. Accordingly, requiring evidence which is devoid of speculation in order to establish a subjective matter requires a type of evidence which cannot exist.

22.  It is therefore concluded that data withheld from the complainant is exempt from disclosure pursuant to 1-210(b)(19), G.S., and that the respondent did not violate 1-210(a) or 1-211(a), G.S.

 

 

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 August 22, 2007.

 

 

________________________________

Petrea A. Jones

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:

 

Stephen Whitaker

15 East Putnam Avenue, Suite 311

Greenwich, CT 06830

 

Commissioner,

State of Connecticut

Department of Public Works

c/o Jeffrey R. Beckham, Esq.

Managing Attorney

Department of Public Works

165 Capitol Avenue

Hartford, CT 06106

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2006-478FD/paj/8/28/2007