FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Stephen Whitaker,  
  Complainant  
  against   Docket #FIC 2006-608

Director, State of Connecticut,

Department of Information

Technology; and State of Connecticut, Geospatial Information Systems Council,

 
  Respondents November 14, 2007
       

 

Prior to the hearing in this matter, ESRI, Inc. (hereinafter “ESRI”) moved to intervene as a party in this matter.  Such motion was granted.  The above-captioned matter was heard as a contested case on June 26, 2007, at which time the complainant, the respondents, and the intervenor appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The complainant’s motion to strike ESRI’s testimony is hereby denied.  For purposes of hearing, the above-captioned matter was consolidated with docket #FIC 2007-091; Stephen Whitaker v. Director, State of Connecticut, Department of Information Technology

 

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 October 20, 2006, the complainant informed the respondents that he would like to review the “document proposal on the statewide public safety GIS application development.”  It is also found that the complainant asked several questions of the respondents. 

 

3.  It is found that by email dated October 27, 2006, to the respondents, the complainant stated: “I hereby make formal my FOI request to you in any capacity you hold in state government for a copy of the documents relating to the proposal for a statewide public safety GIS Application.”

            4.  It is found that, by email dated October 31, 2006, the respondents acknowledged the complainant’s request, informing him that such request was being processed.  It is also found that, by email dated November 2, 2006, the respondents sought clarification of the complainant’s request described in paragraph 3, above.

 

            5.  It is found that, by email dated November 3, 2006, the complainant replied to the respondents’ November 2, 2006, email described in paragraph 4, above, but failed to provide the respondents with further clarification.

 

6.  By letter of complaint dated and filed November 15, 2006, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (hereinafter “FOI”) Act by denying his October 20, 2006, request for “copies of the requested records.”  The complainant for the first time stated that such request included:  “Geographic Information Systems proposal for a Connecticut Homeland, GIS budget and grant documents supporting the initiative detailed in the above document; and Agreements/contracts for Homeland security portal GIS services with vendors or agencies.”  The complainant also alleged that the respondents violated the FOI Act by: failing to respond to his questions; failing to file notice of the respondent Council’s November 15, 2006 meeting with the Office of the Secretary of the State; and failing to make available minutes of the September 27, 2006, meeting of the respondent Council. 

           

            7.  It is well settled that a public agency is not required to answer questions under the FOI Act.  Accordingly, such allegation in the complaint shall not be further addressed herein. 

 

8.  At the hearing on this matter, the respondents contended that, since the October 20, 2006, request described in paragraph 2, above, was not a request for “copies,” as indicated in the complaint, that the complaint was defective.  However, it is found that the October 27, 2006, request for copies described in paragraph 3, above, is a continuation of the October 20 request for review of records.  The Commission will not invalidate the complaint on those grounds.  It is concluded that the Commission has jurisdiction in this matter.

 

9.  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.

 

10.  Section 1-210(a), G.S., states 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…receive a copy of such records in accordance with section 1-212.

 

11.  Section 1-212(a), G.S., states in relevant part:

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.

 

12.  It is found that the respondents maintain the requested record as described in paragraph 13, below, and that such record is a public record within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

 

13.  It is found that, by email with attachments dated November 17, 2006, the respondents provided the complainant with a copy of records they believed were responsive to the complainant’s request described in paragraph 3, above.  It is also found that the respondents provided the complainant with a redacted copy of a document entitled “Proposal for Phase 1 Development of Enterprise and Homeland Security GIS”, marked for the record as complainant’s exhibit O.  It is found that, based on the complainant’s requests described in paragraphs 2 and 3, above, and based on the presentations of the parties at the hearing in this matter, exhibit O is the requested record in this matter. 

 

14.  It is found that the respondents redacted certain portions of the requested record based on the trade secrets exemption and also redacted Appendices A and B, of the requested record, based on 1-210(b)(19), G.S.

 

15.  At the hearing in this matter, the complainant withdrew his allegation with respect to Appendices A and B, as described in paragraph 14, above.  Therefore, such allegation shall not be further addressed herein. 

 

16.  The complainant contends that the respondents failed to provide the requested record promptly upon request.  The complainant also claims that it is impossible to ascertain whether the redactions contained in exhibit O, provided to him by the respondents, are appropriate.  The complainant further claims that he never received a copy of respondents’ contract for Homeland security portal GIS services with ESRI, detailing the scope of work to be completed by such vendor.  The respondents contend that such record was provided to the complainant.  Since such record is not the requested record at issue, such allegation will not be further addressed herein. 

 

17.  The respondents claim that they promptly provided the complainant with the requested record, excepting exempt portions.  The respondents contend that 1-210(b)(5), G.S., allows for the withholding of portions of the requested record. 

 

            18.  Section 1-210(b)(5), G.S., provides in relevant part that nothing in the FOI Act shall be construed to require disclosure of:

 

        (A)  trade secrets, which for purposes of the Freedom of Information Act, are defined as information, including formulas, patterns, compilations, programs, devices, methods, techniques, processes, drawings, cost data, or customer lists that (i) derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) are the subject of efforts that are reasonable under the circumstances to maintain secrecy; and

 

(B)  commercial or financial information given in confidence, not required by statute.

 

            19.  Following the close of the hearing in this matter, the respondents provided the Commission with an unredacted copy of the requested record for in camera inspection.  Such in camera records consist of 78 pages, which have been marked for identification purposes as IC#2006-608-1 through IC#2006-608-78, inclusive. 

 

            20.  It is found that the redacted portions of the in camera records consist of processes, methodologies, and costs carefully and privately developed by ESRI over many years.  Upon careful review of the in camera records, it is found that the redacted material, with the exception of the records described in paragraphs 22 and 23, below, constitutes information that derives economic value, actual or potential, from not being generally known to persons who can obtain economic value from its disclosure, which are the subject of reasonable efforts to maintain its secrecy.  Consequently, it is found that such records are trade secrets exempt from mandatory disclosure by virtue of 1-210(b)(5), G.S. 

 

            21.  It is concluded that the respondents did not violate the FOI Act, with respect to the records described in paragraph 20, above. 

 

            22.  With respect to the last figure redacted on page IC-2006-608-31, which corresponds to the page marked 27 of Exhibit O, it is found that the respondents, on page 28 of Exhibit O, have released such figure to the public and to the complainant.  Accordingly, it is found that such record is not the subject of reasonable efforts to maintain its secrecy, and that such record is not exempt from mandatory disclosure as a trade secret, within the meaning of 1-210(b)(5), G.S. 

 

            23.  With respect to IC-2006-608-1, which corresponds to page marked “i”, the Table of Contents page, of Exhibit O, the respondents claim both the state and federal trade secrets exemption.  However, upon careful review of such record, it is found that it does not contain the kind of detailed private information exempt as a trade secret.  Rather, such record is a generic overview of the scope of work detailed, and found as exempt, in the remainder of the in-camera record.  Accordingly, it is found that such record is not a trade secret exempt from mandatory disclosure by virtue of 1-210(b)(5), G.S. 

 

            24.  It is concluded that the respondents violated the FOI Act by not promptly providing the complainant with copies of the records described in paragraphs 22 and 23, above.  

 

            25.  With respect to the allegation that the minutes of the September 27, 2006 meeting, were not available in a timely manner, 1-225(a), G.S., provides:

 

“…The votes of each member of any such public agency upon any issue before such public agency shall be reduced to writing and made available for public inspection within forty-eight hours and shall also be recorded in the minutes of the session at which taken, which minutes shall be available for public inspection within seven days of the session to which they refer.”

 

            26.  The complainant testified that the September 27, 2006, minutes were not available on the respondent Council’s website when he checked in November 2006.  However, it is found that there is no requirement in the FOI Act to post minutes on a public agency website.  The respondents testified that the minutes were available for public inspection had the complainant asked to review them. 

 

27.  It is found, therefore, that under the facts and circumstances of this case, the respondents did not violate 1-225(a), G.S., with respect to the September 27, 2006, minutes.

 

28.  With respect to the complainant’s allegation that the respondents failed to provide notice of the November 15, 2006 meeting of the respondent Council, neither the complainant nor the respondents addressed such allegation at the lengthy hearing in this matter.  Accordingly, the Commission will not further address such allegation herein. 

           

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

1.  Forthwith, the respondents shall provide the complainant with a copy of the records described in paragraphs 22 and 23, of the findings, above.

 

                                                                                               

Approved by Order of the Freedom of Information Commission at its regular meeting of November 14, 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

           

Director, State of Connecticut,

Department of Information

Technology; and

State of Connecticut,

Geospatial Information Systems Council

c/o Charles H. Walsh, Esq.

Assistant Attorney General

55 Elm Street

3rd Floor Annex

Hartford, CT 06106

 

ESRI, Inc.

c/o Judith A. Jones, Esq.

ESRI

380 New York Street

Redlands, CA 92373-8100

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2006-608FD/paj/11/14/2007