PICTOMETRY INTERNATIONAL CORP. v. FREEDOM OF INFORMATION COMMISSION et al., SC 18724;
DEPARTMENT OF ENVIRONMENTAL PROTECTION v. FREEDOM OF INFORMATION COMMISSION, SC 18725
Judicial District of New Britain
Freedom of Information; Whether Disclosure of Aerial Photographic Images Would Pose Safety Risk; Whether the FOIC Properly Ordered the DEP to Disclose Copyrighted Materials. The department of environmental protection (DEP) obtained, through a licensing agreement with Pictometry International Corporation, aerial images of portions of Connecticut as well as associated data (metadata) and software to view the images. Stephen Whitaker requested, under the Freedom of Information Act (FOIA), copies of all licensed Pictometry imagery and the associated software. The DEP took the position that some of the records were exempt from disclosure as trade secrets and others were protected by federal copyright law and only available under the licensing agreement at a cost of $25 per image. Whitaker appealed to the FOIC. While the case was pending, the department of public works (DPW) determined that there was a safety risk under General Statutes § 1-210 (b) (19) of the FOIA in disclosing the software and in disclosing certain categories of data and images, and it directed the DEP not to disclose those records. The FOIC's decision ordered the DEP to provide Whitaker with the images only, without any associated metadata or software, at "its minimal cost." The FOIC determined that the requested records were public records and that the software and metadata were exempt from disclosure because they constituted trade secrets. With respect to the images, the FOIC found that their disclosure, without accompanying geo-references, did not pose a safety risk. It also determined that the images, although protected by the federal Copyright Act, were not exempt from disclosure, including copying, because the federal act is not a “federal law” for purposes of General Statutes § 1-210 (a), which exempts from disclosure all records “as otherwise provided by any federal law.” Pictometry, the DEP and the DPW appealed to the Superior Court. The trial court dismissed the appeals, upholding the FOIC's determination that disclosure of the images did not constitute a safety risk. The court also determined that the Copyright Act is not a “federal law” that provides an exemption from production under § 1-210 (a) because the act does not require confidential treatment of copyrighted material and does not bar disclosure. The court further found that the FOIC properly ordered the DEP to provide Whitaker with copies of the images at the agency's minimal cost. Pictometry and the DEP appeal, claiming, among other things, that the court improperly determined that the disclosure of images would not constitute a safety risk and that the federal Copyright Act does not provide an exception to the copying of the images.