FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Stephen Whitaker,  
  Complainant  
  against   Docket #FIC 2007-090

Commissioner, State of Connecticut,

Department of Emergency Management

and Homeland Security,

 
  Respondent November 14, 2007
       

 

The above-captioned matter was heard as a contested case on July 16, 2007 and October 12, 2007, at which times the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  On the consent of the parties, the Commission takes administrative notice of the records and final decisions in Docket # FIC2006-608; Stephen Whitaker v. Director, State of Connecticut, Department of Information Technology; and State of Connecticut, Geospatial Information Systems Council; and Docket # FIC2007-091; 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 respondent is a public agency within the meaning of 1-200(1), G.S.

 

2.  It is found that, by email dated November 20, 2006, the complainant requested that the respondent provide him with access to and copies of “documents which detail funding for, contracts for and plans for a statewide GIS application for emergency management.”  It is found that the complainant also requested copies of “RFI and RFPs issued for the Phase 1 or Phase 2 components for the ESRI plan.”

3.  It is found that, by email dated November 21, 2006, the complainant requested that the respondent provide him with access to and copies of “documents which detail any requests to the Director of Information Technology under FOI Section 211(c) for written guidelines or advice relating to a statewide GIS application for homeland security, hardware and software purchases, public records transfer procedures and mediums, non-proprietary data formats and data update procedures to enable public access to current GIS public records.  Please also provide the copies of the DO-IT Directors’ or staff responses to any such requests from your agency made during the last two years.”

 

4.  It is found that, by emails dated November 23, 2006, and December 1, 2006, the respondent informed the complainant that he had received the complainant’s requests and that he was in the process of putting together responsive materials.

 

            5.  It is also found that beginning on January 4, 2007 and continuing through January 29, 2007, the respondent provided to the complainant copies of records responsive to the requests described in paragraphs 2 and 3, above. 

 

6.  By letter of complaint dated and filed February 8, 2007, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to promptly and completely reply to his email requests of November 20, 2006 and November 21, 2006, and by developing “information technology systems” without “sufficient planning for provisions of digital public records,” within the meaning of 1-211(c), G.S.

 

7.  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.

 

8.  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.

 

9.  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.

 

10.  It is found that, to the extent the respondent maintains the requested records as described in paragraphs 2 and 3, above, such records are public records within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

 

11.  With respect to the complainant’s requests, as described in paragraphs 2 and 3, above, the complainant specifically claimed at the hearing, that he still has not received Schedule C of the Pictometry International Corp. (hereinafter “Pictometry”) licensing agreement, as well as copies of attachments referenced in emails provided to the complainant by the respondent.

 

12.  The respondent contends that Schedule C of the Pictometry licensing agreement contains digital image specifications which are trade secrets and exempt from mandatory disclosure pursuant to 1-210(b)(5), G.S.

 

            13.  Section 1-210(b)(5)(A), G.S., exempts from mandatory disclosure:

 

        (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.

 

14.  At the hearing in this matter, the respondent contended that Pictometry considers Schedule C to be proprietary trade secret information on the production of their images.  At the hearing in this matter, even the complainant testified that such schedule contains the “technical description of [Pictometry’s] unique photographic approach” or “the family jewels.” 

 

15.  Following the close of the hearing in this matter, the respondent provided the Commission with Schedule C of the Pictometry licensing agreement for an in camera inspection.  Such in camera records consist of 2 pages, which have been marked for identification purposes as IC#2007-090-1 through IC#2007-090-2, inclusive.

 

16.  Upon careful review of the in camera records, it is found that such records contain proprietary image specifications.  It is further found that such records contain information that derives economic value, actual or potential, from not being generally known to persons who can obtain economic value from their disclosure or use, within the meaning of 1-210(b)(5), G.S.

 

17.  It is found that Pictometry has undertaken reasonable efforts to maintain the secrecy of the in camera records, within the meaning of 1-210(b)(5), G.S.

 

18.  Consequently, it is found that the in camera records at issue constitute a “trade secret” within the meaning of 1-210(b)(5), G.S., and are therefore exempt from mandatory disclosure.  Accordingly, it is concluded that the respondent did not violate the FOI Act by withholding the in camera records from the complainant. 

 

19.  With respect to the copies of attachments referenced in emails, as described in paragraph 11, above, the respondent credibly testified at the hearing in this matter, that all relevant emails and corresponding attachments relating to the complainant’s requests, except for a draft press release, had been transmitted to the complainant, and the complainant testified credibly that he had not received such attachments.  Except as described in paragraph 20, below, it is found that any failure to receive the email attachments was technical and not a violation of the FOI Act. 

 

20.  With respect to the draft press release, it is found that in late January 2007, the complainant emailed the respondent requesting such draft.  The respondent believed that such draft press release was exempt as a preliminary draft, and therefore, she did not disclose the draft press release.  However, the respondent also indicated at the hearing that she would be willing to reexamine the draft press release to determine whether she is willing to disclose it to the complainant.  Since such draft was not subject of the complaint described in paragraph 6, above, it will not be further addressed herein. 

 

21.  The complainant contends that the respondent failed to provide the requested records promptly.

 

22.  The meaning of the word “promptly” is a particularly fact-based question that has been previously addressed by the FOI Commission.  In Advisory Opinion #51, In the Matter of a Request for Declaratory Ruling, Third Taxing District of the City of Norwalk, Applicant (Notice of Final Decision dated January 11, 1982) the Commission advised that the word “promptly” as used in 1-210(a), G.S., means quickly and without undue delay, taking into consideration all of the factors presented by a particular request.  The Commission also gave the following guidance:

 

The Commission believes that timely access to public records by persons seeking them is a fundamental right conferred by the Freedom of Information Act.  Providing such access is therefore as much a part of their mission as their other major functions.  Although each agency must determine its own set of priorities in dealing with its responsibilities within its limited resources, providing access to public records should be considered as one such priority.  Thus, it should take precedence over routine work that has no immediate or pressing deadline.

 

23.  The advisory opinion goes on to describe some of the factors that should be considered in weighing a request for records against other priorities:  the volume of records requested; the time and personnel required to comply with a request; the time by which the person requesting records needs them; the time constraints under which the agency must complete its other work; the importance of the records to the requester, if ascertainable; and the importance to the public of completing the other agency business without the loss of the personnel time involved in complying with the request.

 

24.  It is found that the respondent acknowledged the complainant’s request by email dated November 23, 2006, three days after the complainant made his request to the respondent.

 

25.  It is also found that the requested records were difficult to locate since they were kept with various units of the respondent’s agency as well as with the Department of Information Technology (hereinafter “DOIT”) and the Department of Environmental Protection (hereinafter “DEP”).

 

26.  It is further found that the respondent conducted a diligent and thorough search for the requested records, and retrieved such records located within various units of the respondent’s agency and with DOIT and DEP.  It is further found that the respondent reviewed the records to determine which records would be responsive to the complainant’s request and whether the respondent should claim any exemptions or exclusions to the disclosure of such records.  It is further found that the respondent worked steadily and extensively with the complainant for approximately two months, regularly emailing the complainant. 

 

27.  It is concluded, therefore, that under the circumstances of this case, the records were provided promptly within the meaning of 1-212(a), G.S.

 

28.  With respect to the complainant’s allegation that the respondent violated 1-211(c), G.S., the complainant contends that, although the respondent provided him with all records responsive to his request as described in paragraph 3, above, the lack of the records which the complainant believes should exist prove that the respondent violated 1-211(c), G.S. 

 

29.  Section 1-211(c), G.S., provides:   

 

(c)  On and after July 1, 1992, before any public agency acquires any computer system, equipment or software to store or retrieve nonexempt public records, it shall consider whether such proposed system, equipment or software adequately provides for the rights of the public under the Freedom of Information Act at the least cost possible to the agency and to persons entitled to access to nonexempt public records under the Freedom of Information Act.  In meeting its obligations under this subsection, each state public agency shall consult with the Department of Information Technology as part of the agency's design analysis prior to acquiring any such computer system, equipment or software.  The Department of Information Technology shall adopt written guidelines to assist municipal agencies in carrying out the purposes of this subsection.  Nothing in this subsection shall require an agency to consult with said department prior to acquiring a system, equipment or software or modifying software, if such acquisition or modification is consistent with a design analysis for which such agency has previously consulted with said department…. The provisions of this subsection shall not apply to software modifications which would not affect the rights of the public under the Freedom of Information Act. 

 

            30.  It is found that the DEP, and not the respondent in this matter, entered into a contractual agreement for licensing of GIS data with Pictometry.  It is found, therefore, that since the respondent did not acquire any computer system, equipment or software to store or retrieve nonexempt public records from Pictometry, it is not the public agency required to comply with the requirements of 1-211(c), G.S., as alleged in the complaint.

 

31.  Nonetheless, based on the credible testimony of the respondent’s witnesses, it is found that over many months, the respondent has worked closely with several state agencies, including DOIT, in contemplation of considering whether the statewide GIS system adequately provides for the rights of the public under the FOI Act at the least cost possible to the state of Connecticut, and to persons entitled to access to nonexempt public records under the FOI Act.

 

            32.  It is concluded that the respondent did not violate 1-211(c), G.S., as alleged in the complaint. 

 

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

 

1.                  The complaint is hereby dismissed.

 

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

           

Commissioner, State of Connecticut,

Department of Emergency Management

and Homeland Security

c/o Richard T. Biggar, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-090FD/paj/11/15/2007