Pictometry Int'l Corp. v. Freedom of Info. Comm'n

• Decision Date: 29 January 2013
• Docket Number: 18725.,Nos. 18724,s. 18724
• Court: Connecticut Supreme Court
• Parties: PICTOMETRY INTERNATIONAL CORPORATION v. FREEDOM OF INFORMATION COMMISSION et al. Department of Environmental Protection v. Freedom of Information Commission et al.

307 Conn. 648

59 A.3d 172

PICTOMETRY INTERNATIONAL CORPORATION

v.FREEDOM OF INFORMATION COMMISSION et al.

Department of Environmental Protection

v.Freedom of Information Commission et al.

Nos. 18724, 18725.

Supreme Court of Connecticut.

Argued Oct. 23, 2012.

Decided Jan. 29, 2013.

Joseph P. Titterington, pro hac vice, with whom were Emily E. Campbell, pro hac vice, and, on the brief, Timothy P. Jensen and Amy E. Markim, for the appellant in Docket No. SC 18724 (plaintiff in the first case).

Matthew I. Levine, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Kimberly Massicotte, assistant attorney general, for the appellant in Docket No. SC 18725 (plaintiff in the second case).

Lisa Fein Siegel, commission counsel, with whom, on the brief, was Colleen M. Murphy, general counsel, for the appellee in Docket Nos. SC 18724 and SC 18725 (named defendant in both cases).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH and HARPER, Js.^*

ROGERS, C.J.

The primary issue to be resolved in these appeals is whether public records that are protected by federal copyright law fall within the “otherwise provided by any federal law” exemption to the Freedom of Information Act (act), General Statutes § 1–200 et seq., set forth in General Statutes § 1–210(a) (federal law exemption).¹ The named plaintiff in the first case, Pictometry International Corporation (Pictometry), contracted with the department of information technology (DOIT) to license the plaintiff in the second case, the department of environmental protection (DEP),² to use certain computerized aerial photographic images of sites within the state and associated data that are owned and copyrighted by Pictometry. The defendant Stephen Whitaker requested that the DEP provide him with, among other things, copies of the computerized images and associated data. The DEP responded that the images were not public records subject to the act because, as copyrighted materials, they fell into the federal law exemption. The DEP indicated, however, that Whitaker could obtain copies of the photographicimages if he paid the $25 per image fee provided for in the licensing agreement. The DEP also stated that the disclosure of the images to Whitaker would be subject to a determination by the department of public works (DPW) that disclosure would not pose a public safety risk pursuant to § 1–210(b)(19).³

Whitaker then filed a complaint against the DEP with the named defendant, the freedom of information commission (commission). The commission concluded that, pursuant to the act, the DEP was required to provide Whitaker with copies of the photographic images “ ‘at its minimum cost,’ ” but was not required to provide the associated data. It further concluded that disclosure of the images without the associated data would not pose a public safety risk. Pictometry and the DEP then filed separate appeals from the commission's decision in the trial court, which were subsequently consolidated.⁴ The trial court affirmed the commission's decision and rendered judgments dismissing the appeals, and these appeals followed.⁵ We conclude that, because the commission improperly ordered the DEP to provide copies of the images without first determining whether Whitaker wanted copies of the images stripped of the associated data, whether it was feasible for the DEP to provide such copies and whether doing so would pose a public safety risk, the matter must be remanded to the commission for further proceedings. We further conclude that, if the commission determines that Whitaker wants and is entitled to copies of the photographic images, the copying of the photographic images must be done in compliance with the provisions of the licensing agreement and federal copyright law, including payment by Whitaker of the $25 per image fee.

The record reveals the following undisputed facts and procedural history. Pictometry is a private corporation in the business of selling specialized aerial photographic services throughout the United States. Pictometry's processes are capable of capturing high-resolution oblique and orthographic aerial photographic images.⁶ The images are owned by Pictometry and are protected by the federal Copyright Act, 17 U.S.C. § 101 et seq.⁷ Pictometry's processes also generate metadata, or data that describes data, at the moment that a photographic image is taken. These metadata include the time that the image was captured, the angle at which it was captured and the latitude, longitude and altitude of the camera. The metadata is entered into Pictometry's proprietary software, which is protected by federal copyright and state trade secret laws. The software is capable of generating precise measurements of the photographed site.

In March, 2006, Pictometry entered into a contract with the DOIT pursuant to which Pictometry granted the DOIT and other authorized state agencies, including the DEP, a license to use its software, metadata and images for governmental purposes (licensing agreement) in exchange for a fee of $793,000. The DOIT also agreed that licensed users would not reproduce any of the licensed images for use by persons not covered by the licensing agreement unless the licensed user paid Pictometry a fee of $25 per image, which fee the licensed user was authorized to pass on to the person requesting the copy. ⁸

On July 5, 2007, Whitaker sent a freedom of information request by e-mail to the DEP, requesting copies of all contracts with Pictometry, all imagery provided to the DEP by Pictometry and any software required to view the Pictometry images. In response, the DEP sent an e-mail to Whitaker to which it attached a copy of the licensing agreement between the DOIT and Pictometry, except for appendix C to the agreement, which Pictometry claimed was exempt trade secret information pursuant to § 1–210(b)(5).⁹ The DEP stated in the e-mail that the requested images were exempt from disclosure under the act pursuant to the federal law exemption because they were protected by federal copyright law. The DEP also stated that Whitaker could obtain copies of the images if he paid the $25 per image fee provided for in the licensing agreement. Because the DEP had 139,148 oblique images and 245,806 orthographic images on file, however, it suggested that Whitaker might want to narrow his request to images of certain geographic areas. Finally, the DEP stated that no images would be released to Whitaker until the DPW had determined that disclosure would not pose a safety risk. Whitaker then filed a complaint with the commission claiming that the DEP had violated the act by refusing to provide copies of the photographic images and metadata. Pictometry filed a petition to intervene in the matter, which the commission granted.

After Whitaker filed his complaint with the commission, the DEP sent a letter to the DPW asking whether release of the Pictometry images would pose a significant safety risk to the public pursuant to § 1–210(b)(19). The commissioner of public works responded to the letter on January 24, 2008, indicating that Pictometry's proprietary software would enable a person to manipulate an image “to include displaying a location from all four directions ... and measuring the height, width and length of features such as buildings, bridges, roads, towers, trees and walls.” The commissioner of public works also stated that “the exemption of specific images itself may be a security risk. By redacting certain exempt images of important assets, we essentially provide a road map to those assets.” ¹⁰ The commissioner of public works directed the DEP “to withhold from disclosure Pictometry's software and [geographic information system] data of critical infrastructure and key resources that are not available to the public” because disclosure would present a risk of harm to the state and its citizens.¹¹

The commission conducted a hearing on Whitaker's complaint against the DEP on January 31, 2008. Thereafter, Whitaker filed a complaint against the DPW and a motion to consolidate the proceedings on that complaint with the pending proceeding against the DEP. The commission treated the complaint against the DPW as a motion to join the DPW as a respondent in the proceeding against the DEP, and granted the motion. Thereafter, the commission conducted additional hearings on the matter.

Ultimately, the commission concluded that Pictometry's software and metadata were trade secrets within the meaning of § 1–210(b)(5)(A) and, therefore, were exempt from the act. It also concluded that the Copyright Act was not a “federal law” for purposes of the federal law exemption because copyright law does not require that copyrighted material be treated as confidential. In addition, the commission concluded that, because the DPW's determination that disclosure of some of the images could pose a safety risk was based on the assumption that the metadata would also be disclosed, and because the images alone revealed nothing that could not be observed by visible inspection or a photograph of a site, disclosure of the images did not pose a safety risk for purposes of the exemption set forth in § 1–210(b)(19). Finally, the commission concluded that “the charge of $25 per image in addition to the approximately $700,000 two year licensing agreement would be an unreasonable charge and [that the] DEP is not entitled to recoup those costs by charging [Whitaker] for disclosure.” Accordingly, the commission concluded that the DEP had violated the act and ordered the DEP to provide Whitaker with copies of the images, without any associated metadata or software, at “its minimum cost.”

Pictometry, the DEP and the DPW then filed separate appeals from the commission's decision in the trial court, which appeals were ultimately consolidated for trial. The trial court concluded that the commission's determination that the disclosure of the images to Whitaker would not pose a...