History may describe the Connecticut Supreme Court’s 2012-2013 term as the “eye of the hurricane” with respect to First Amendment and freedom of information cases.

The immediately preceding year—the leading edge of the storm—produced several important free speech cases involving the rights of public and private employers to terminate employees based on workplace-related speech (Perez-Dickson v. City of Bridgeport and Schumann v. Dianon Systems Inc.). It also produced an important Freedom of Information Act decision concerning access to UConn trade secrets, University of Connecticut v. Freedom of Information Commission.

Similarly, the court year that commenced this month—the following edge of the storm—will likely produce some very important First Amendment and freedom of information cases, particularly ones arising out of the tragic shooting at the Sandy Hook Elementary School.

By contrast, last year was pretty quiet. The Court released only one significant Freedom of Information Act case—Pictometry International Corp. v. Freedom of Information Commission—a case that involved the intersection of our state’s open government laws with federal copyright law. Overruling both the Freedom of Information Commission and the Superior Court, the Supreme Court held that federal Copyright Act is a “federal law” for the purpose of General Statutes § 1-210(a), which requires the disclosure of documents of public agencies “except as otherwise provided by any federal law. . . .”

Aerial Photography

Before delving into a discussion of the Court’s decision in Pictometry, a very brief introduction to the world of aerial photography in the late 20th and early 21st century is in order. Since 1858, when history records that French photographer and balloonist Gasper Felix Tournachon produced the first successful aerial photograph taken from a tethered balloon, man has been taking pictures of the earth from the skies.

After balloons came aircraft, and after aircraft came satellites. And as the world moved into the digital age, the process of photography moved from dry film and chemicals to electronic sensors that recognize light and transform it into digital bits and pieces of information. And as the world moved further into the digital age, cameras began to record not only the photographed image itself, but information about the image, such as the date on which it was taken, the precise latitude and longitude of the object photographed, even the altitude and angle at which the photograph was taken.

This information is called “metadata,” and it is critically important part of the digital photography process. Amongst other things, it is what allows you to enter your home address into Google maps and instantly see a satellite photograph of your house.

Back to Pictometry. A number of companies have spent considerable time and capital developing databases of digital photographs of the entire surface of the world. The digital photographs, including the metadata, are copyrighted. For a fee, these companies will license their images, the associated metadata, and special software, to other companies and to federal, state and local agencies. Pictometry is one such company. In March 2006, for a fee of $793,000, it entered into a licensing agreement with the State of Connecticut to authorize what was then called the state Department of Environmental Protection and several other agencies to use its software, images and metadata for governmental purposes. The agreement provided that the state would not reproduce any of the license images for persons who were not parties to the agreement unless the state paid Pictometry a fee of $25 per image, which could be passed on to the person who requested the photos.

In July 2007, one Stephen Whitaker made a Freedom of Information Act request to the DEP, essentially asking the agency to give him a copy of the Pictometry image database and related software. The DEP informed Mr. Whitaker that it believed the database was exempt from disclosure, but offered to give him copies of the images it contained if he paid the $25 per image fee, a rather expensive proposition given that the database contained nearly 400,000 images. Needless to say, Mr. Whitaker did not pay the DEP $10 million. Instead, he filed an FOIA complaint.

After a hearing, the Freedom of Information Commission reached several conclusions. First, it held that the federal Copyright Act was not a “federal law” within the meaning of Section 1-210(a) because the Copyright Act does not actually prohibit the disclosure of copyrighted information. Second, the commission concluded that the metadata and software were exempt from disclosure on the ground that they were trade secrets. It therefore ordered the disclosure of images without the associated metadata, although it was not at all clear that Mr. Whitaker was interested in mere photographs.

Third, it concluded that the $25 per image charge set forth in the licensing agreement between Pictometry and the state was effectively void on the theory that public agencies may not contract out of their obligations under the FOIA to provide copies of the documents to the public for a statutorily-mandated fee.

‘Abuse Of Discretion’

The DEP, along with the Department of Public Works, which also had a role in the case, filed administrative appeals to the Superior Court, which largely affirmed the FOIC’s findings and conclusions. The state agencies found a more receptive audience in the justices of the Connecticut Supreme Court.

Initially, the Court agreed with the agencies’ argument that the FOIC had erred by ordering them to disclose images stripped of their metadata when what Mr. Whitaker wanted were the images with the associated data. “[W]e conclude that it was an abuse of discretion for the commission to require the DEP to provide copies of approximately 400,000 photographic images stripped of the associated metadata to Whitaker in the absence of any evidence that he wants them or that he has any use for them in the format provided.” The Court also noted an absence of evidence in the record that DEP, as opposed to Pictometry, had the technical ability to strip the metadata from the images.

The Court then addressed the most important legal question in the case, to wit, whether the federal Copyright Act was a “federal law” for the purposes of the federal law disclosure exemption in section 1-210a. As noted, the Court answered that question in the affirmative. Specifically, it held: “[T]o the extent that the [FOIA] and the Copyright Act impose conflict legal obligations, the Copyright Act is a ‘federal law’ for purposes of the federal law exemption. Accordingly, although the federal law exemption does not entirely exempt copyrighted public records from the act, it exempts them from copying provisions of that act that are inconsistent with federal copyright law.” (Emphasis supplied.)

According to the Court, the $25 per image copying fee required under the licensing agreement between the state and Pictometry was not “a fee for the mechanical, material or labor costs of reproducing copies of the copyright materials. Rather, it was a

licensing fee, i.e., a fee for the use of another entity’s private property. Nothing in [the FOIA] suggests that it was intended to prohibit state agencies from passing on licensing fees.”

In sum, Pictometry represents the Supreme Court’s effort to balance the “public’s right to know” with the legal rights that federal law affords to owners of copyrighted material who license that material to the state. As I said, it was a fairly quiet year for the Court on the freedom of information front. •