FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Stephen Whitaker,  
  Complainant  
  against   Docket #FIC 2007-514

Commissioner, State of Connecticut, Department of Environmental Protection; Commissioner, State of Connecticut,

Department of Public Works; and   Pictometry International Corp.,

 
  Respondents September 3, 2008
       

 

The above-captioned matter was heard as a contested case on January 31, 2008 and March 27, 2008, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  Pictometry International Corp. moved without objection to intervene as party respondent.  Pictometry was granted party status, having satisfied the requirements of  1-21j-30 of the Regulations of Connecticut State Agencies.

 

After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

1.      The respondents Connecticut Department of Environmental Protection (“DEP”) and Connecticut Department of Public Works (“DPW”) are public agencies within the meaning of 1-200(1), G.S.

 

2.   It is found that by e-mail sent July 5, 2007, the complainant requested that the respondent Commissioner of DEP provide him with copies of:

 

a.       All contracts with [sic] DEP and Pictometry, including DEMHS [Department of Emergency Management and Homeland Security] for Pictometry services, data and software;

 

b.      All Pictometry imagery and any software required to view the Pictometry images; [and]

 

c.       Any DEP documents demonstrating compliance with Section 211(c) of CT. FOIA.

 

3.   It is found that, by e-mail sent July 10, 2007, the respondent acknowledged receipt of the complainant’s request. 

 

4.   It is found that on August 24, 2007, DEP sent an e-mail to the complainant, providing a redacted copy of the contract requested by the complainant.  It is found that DEP claimed that some of the records requested by the complainant were exempt from mandatory disclosure as trade secrets and that others were protected by federal copyright law and available under the licensing agreement at a cost of $25 per image.  It is found that DEP asked the complainant whether he wished to narrow the scope of his request for images, in light of the cost of nearly 300,000 images at $25 per image.  It is found that DEP further advised the complainant that once the complainant narrowed his request for images, DEP would still need to seek a determination from DPW as to whether disclosure of the images requested by the complainant would constitute a safety risk.

 

5.      It is found that on September 19, 2007, DEP learned from the complainant that he decided not to narrow his request. 

 

6.     By letter of complaint dated and filed September 20, 2007, the complainant appealed to the Commission, alleging that DEP violated the Freedom of Information (“FOI”) Act by failing to comply promptly and completely with his request for records, described in paragraph 2, above. 

 

7.     It is found that on September 28, 2007, DEP asked DPW to determine whether disclosure of the Pictometry images “could pose a significant safety risk to the public.”

 

8.      It is found that on January 25, 2008, DPW directed DEP not to disclose “Pictometry’s software and GIS data of critical infrastructure and key resources that are not available to the public.”  DPW also directed DEP to withhold from disclosure “all of Pictometry’s detailed oblique (angled) aerial photography images and the specialized software for zooming in for additional detail…”

 

9.      Following the evidentiary hearing in this matter on January 31, 2008, the Hearing Officer added DPW as a party, pursuant to 1-21j-30(a), Regulations of Connecticut State Agencies.

 

10.  It is found that Pictometry is a private corporation that provides specialized aerial photographic services throughout the United States.  Pictometry’s imaging processes capture georeferenced, high resolution oblique images (images at an angle that provide for a 3D-like view) and ortho images (looking straight down).  It is found that the apparatus on the airplane that captures the images is covered by U.S. patent. 

 

11.   It is found that the method of capturing the images, especially the oblique images, is the subject of a pending patent application. 

 

12.   It is found that Pictometry also generates metadata (individual data files that contain discrete information about corresponding images) at the moment an image is captured.  It is found that the metadata contains such information as:  time the image was captured, the angle at which the image was captured, and the position of the camera, expressed in terms of its latitude, longitude, altitude, and other characteristics. 

 

13.   It is found that Pictometry has developed and owns software that generates measurements utilizing the metadata.  It is found that the measurements generated by the software are what makes Pictometry’s product unique, useful and, therefore, valuable to the company.  It is found that the precise georeferences make Pictometry’s product attractive to its customers for its accurate measurements and great detail of the physical landscape.

 

14.   In the words of the witness for Pictometry, it is found that “this ability to measure on the oblique is what is unique.”

 

15.   It is found that Pictometry contracted with the Connecticut Department of Information Technology (“DOIT”) to license DEP to use its software, metadata, and images of Connecticut’s shoreline communities and communities along the Connecticut River as far north as Bloomfield. 

 

16.   It is found that Pictometry licensed DEP to install on the agency’s computers the company’s visual information system with respect to the communities described in paragraph 15, above.  It is found that the visual information system provided to DEP under the licensing agreement contains software, metadata, and images.  It is further found that the software, metadata, and images in the possession of DEP are the subject of the complainant’s request for records, described in paragraph 2.b, above.

 

17.   Section 1-200(5), G.S., defines public record or file as:

 

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.

 

18.  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.

 

19.   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.

 

20.    It is found that, to the extent that they exist, the contracts described in paragraph 2.a, above, are public records within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

 

21.   With respect to the contracts described in paragraph 2.a, above, it is found that DEP has not entered into any contractual agreements with Pictometry.  It is found that DOIT signed the licensing agreement with Pictometry.  It is found that, in response to the complainant’s request for a copy of the contract, DEP obtained a copy of such licensing agreement and provided a redacted copy of it to the complainant on August 24, 2007.

 

22.   It is found that DEP redacted Schedule C of the licensing agreement.  DEP claimed that Schedule C contains digital image specifications that are trade secrets and exempt from mandatory disclosure pursuant to 1-210(b)(5), G.S.

 

23.  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.

 

24.  It is found that the Commission previously concluded that Schedule C of the state’s licensing agreement with Pictometry is exempt from mandatory disclosure as a trade secret.  Docket #FIC 2007-090; Stephen Whitaker v. Commissioner, State of Connecticut, Department of Emergency Management and Homeland Security; (Final Decision, Nov. 14, 2007).  Accordingly, it is concluded that the respondents did not violate the FOI Act by withholding such record from the complainant.

 

25.  With respect to the records described in paragraph 2.c, above, 1-211(c), G.S. provides:

 

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. 

 

26.  It is found that DEP informed the complainant on August 24, 2007, that the agency had no responsive records relating to 1-211(c), G.S.  The complainant alleged in his complaint that DEP’s “admission that no [1-]211(c)[, G.S.], documents exist demonstrate [sic] violation of FOIA [1-]211(c)[, G.S.].”

 

27.  It is found that DOIT, not DEP or DPW, negotiated with Pictometry to acquire the software.  It is found that DOIT considered the rights of the public under the FOI Act, within the meaning of 1-211(c), G.S.  Accordingly, it is concluded that the respondent public agencies did not violate the FOI Act in the manner alleged in paragraph 2.c, above.

 

28.   With respect to the complainant’s request for “[a]ll Pictometry imagery and any software required to view the Pictometry images,” described in paragraph 2.b, above, the respondents contend that the software, metadata and images are not public records, within the meaning of 1-200(5), G.S., because Pictometry retains its ownership interest in such materials.  The respondents contend, in the alternative, that if the software and metadata are public records, then they are exempt from mandatory disclosure pursuant to 1-210(b)(5) and 1-210(b)(19), G.S.  The respondents contend that if the images are public records, they are exempt from mandatory disclosure pursuant to the Federal Copyright Act of 1976, 17 U.S.C. 106. 

 

29.   The respondents contend that Pictometry is the exclusive owner of the information and systems requested by the complainant, and that the licensing agreement merely gave DEP the limited right to use Pictometry’s property.  The respondents emphasize that the State purchased only the right to possess and use Pictometry’s visual information system within the confines of the license.

 

30.   It is found, however, that DEP uses, receives, or retains Pictometry’s software, metadata, and images as recorded data or information, within the meaning of 1-200(5), G.S., albeit Pictometry prepared and owns its product. 

 

31.   It is found, also, that, within the meaning of 1-210(a), G.S., DEP maintains or keeps on file the software, metadata and images that it received from Pictometry pursuant to the licensing agreement.

 

32.   The respondents cite Docket #FIC1998-373; Devine v. Middletown; (Final Decision, June 30, 1999), to support their claim that the complainant has no right to copies of Pictometry’s private property under the FOI Act.  It is found, however, that the issue in Devine was solely whether the private corporation that licensed software to a municipality was the functional equivalent of a public agency with respect to the software.  It is found that Devine did not reach the issue of whether private property that is licensed to the state for use in conducting the public’s business becomes a public record, in addition to retaining its status as copyrighted property of the private owner. 

 

33.   It is found, therefore, that the software, imagery, and metadata, described in paragraph 2.b, above, are public records within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.   

 

34.   With respect to the complainant’s request for copies of Pictometry’s software and metadata, described in paragraph 2.b., above, it is found that such records contain information that derives independent economic value 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, within the meaning of 1-210(b)(5), G.S.  As Pictometry’s Vice-President of Administration testified, it is found that the software and metadata are the “lifeline” of the company.

 

35.   It is further found that Pictometry has undertaken reasonable efforts to maintain the secrecy of the software and metadata, within the meaning of 1-210(b)(5), G.S. 

 

36.   Consequently, it is found that the software and metadata, described in paragraph 2.b, above, constitute a “trade secret” within the meaning of 1-210(b)(5), G.S., and, therefore, are exempt from mandatory disclosure.  Accordingly it is concluded that the respondents did not violate the FOI Act by withholding such records from the complainant.

 

37.   With respect to the complainant’s request for copies of the images described in paragraph 2.b, above, it is found that such records are protected by the Federal Copyright Act of 1976, 17 U.S.C. 106, which provides in relevant part:

 

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

 

 (1) to reproduce the copyrighted work in copies or phonorecords;

 

(2) to prepare derivative works based upon the copyrighted work;

 

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; …

 

38.   The respondents contend that the Federal Copyright Act protects the images from mandatory disclosure pursuant to 1-210(a), G.S., which exempts all records “as otherwise provided by any federal law.”

 

39.  Section 1-210(a), G.S., however, refers to federal laws that “by their terms, provide for confidentiality of records or some other similar shield from public disclosure.” Chief of Police v. FOI Commission, 252 Conn. 377, 399 (2000). 

 

40.   It is found that the Federal Copyright Act is not a “federal law” that provides for the explicit confidentiality of records or some other similar shield from public disclosure.  “Significantly, while the Copyright Act proscribes infringement of copyrighted material, nothing in the Act requires confidential treatment by the government of copyrighted material.  Venetian Casino Resort v. EEOC, 453 F.Supp.2d 157, 166 (D. D.C. 2006).  

 

41.   It is found that there are exceptions to the Act that contain affirmative disclosure requirements, such as 17 U.S.C. 705, which permits full public inspection of registered copyrighted documents at the Copyright Office.  Moreover, the Act itself contains affirmative disclosure requirements, codified at 17 U.S.C. 107, which limits a copyright holder’s exclusive rights where the copyrighted material is to be put to “fair use.” 

 

42.   The respondents cite the FOI Commission’s Advisory Opinion #62 to support their claim that copyrighted records are exempt from the disclosure requirements of the FOI Act, pursuant to 1-210(a), G.S.  The Commission observes that it issued Advisory Opinion #62 in 1985; Chief, supra and Venetian Casino, supra, were decided in 2000 and 2006, respectively. 

 

43.   It is concluded that the Federal Copyright Act does not prohibit DEP from disclosing the records described in paragraph 2.b., above, pursuant to its obligations under the FOI Act.

 

44.   The respondents further claim that the images described in paragraph 2.b, above, are exempt from mandatory disclosure pursuant to 1-210(b)(19), G.S., which 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 … by the Commissioner of Public Works, after consultation with the chief executive officer of the agency …. 

 

45.   It is found that the determination by the Commissioner of DPW that there was reasonable grounds to believe that disclosure of the records requested by the complainant may result in a safety risk was based on the assumption that not only the photographic images would be disclosed, but also the associated software and metadata. 

 

46.   It is found that without the software and metadata, which provide detailed georeferencing, the oblique and ortho images remaining are high-resolution photographs of the physical landscape.  It is found that the images alone reveal nothing that is not available from visible inspection or a photograph.  For instance, it is found that the promotional material for Pictometry (Exhibit I-1) displays an oblique image, without accompanying metadata or any georeference markers, of the Statue of Liberty.  It is found that it is not reasonable to believe that disclosure of such images, without accompanying geo-references, may result in a safety risk, within the meaning of 1-210(b)(19), G.S.

 

47.   Accordingly, it is concluded that it is not reasonable to believe that disclosure of the images, alone, that are responsive to the records requested by the complainant, as described in paragraph 2.b., above, may result in a safety risk, within the meaning of 1-210(b)(19), G.S. 

 

48.   The respondents observe that, pursuant to the licensing agreement, Pictometry will charge DEP $25/image for each copy of a Pictometry image that is beyond the scope of the licensing agreement, even if the software and metadata are not disclosed.  It is found that the $25/image is in addition to the approximately $700,000 two-year licensing agreement.  DEP contends that DEP is entitled to recoup that cost by charging the complainant for copies of the records he requested.  It is further found that the charge of $25 per image in addition to the $700,000 two-year licensing agreement would be an unreasonable charge and DEP is not entitled to recoup those costs by charging the complainant for disclosure. 

 

49.   It is found that a public agency may not contract away its statutory obligations under the FOI Act. Lieberman v. Board of Labor Relations, 216 Conn. 253 (1990).

 

50.   Based on the facts and circumstances of this case, it is concluded that the respondents violated the disclosure requirements of the FOI Act by failing to provide to the complainant copies of the images, only, described in paragraph 2.b., above.

 

 

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

 

1.      DEP shall forthwith provide to the complainant copies of the images, only,

without any associated metadata or software, described in paragraph 2.b. in the findings of fact, at its minimum cost.

 

 

Approved by Order of the Freedom of Information Commission at its special meeting of September 3, 2008.

 

 

____________________________

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 Environmental Protection

c/o Melisa Chan, Esq.

Administrative & Legislative Advisor

Office of Legal Counsel

Office of the Commissioner

Connecticut Department of Environmental Protection

79 Elm Street

Hartford, CT 06106

and

Charles H. Walsh, Esq.

Assistant Attorney General

55 Elm Street

Hartford, CT 06106

 

Commissioner, State of Connecticut,

Department of Public Works

c/o Raeanne V. Curtis, Commissioner,

Department of Public Works

165 Capitol Avenue

Hartford, CT 06106-1606

and

Charles H. Walsh, Esq.

Assistant Attorney General

55 Elm Street

Hartford, CT 06106

and

Melisa Chan, Esq.

Administrative & Legislative Advisor

Office of Legal Counsel

Office of the Commissioner

Connecticut Department of Environmental Protection

79 Elm Street

Hartford, CT 06106

 

 

 

Pictometry International Corp.

c/o Paul Guggina, Esq.

Tyler Cooper & Alcorn, LLP

185 Asylum Street

City Place I, 35th Floor

Hartford, CT 06103-3488

and

Joseph P. Titterington, Esq. and

Douglas J. Sorocco, Esq.

Dunlap Codding, P.C.

1601 Northwest Expressway, Suite 1000

Oklahoma City, OK 73118

 

 

 

 

__________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-514FD/paj/9/10/2008