FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on July 9, 2009, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint.   

 

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 letter dated March 18, 2009, the complainant requested that the respondent provide him with “copies of any and all documents, charts, writings, listings, records, computer programs or the like used by the Tax Assessors’ Office and/or any company agent retained by the Tax Assessor and/or the City of Norwalk to perform and/or used in connection with the revaluation of” Betts Island, Parcel Number 5-95-1-0 (the “requested records”). 

 

3.  It is found that the respondent did not respond to the complainant’s March 18, 2009 letter.

 

4.  By letter dated April 16, 2009 and filed with the Commission on April 17, 2009, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information Act (“FOIA”) by failing to provide him with copies of the requested records.    

 

5.  It is found that, by letter dated May 11, 2009, the complainant made a second request concerning the removal of farmland designation from the same land, Parcel Number 5-95-1-0. However, because a copy of this request was not forwarded to the Commission until July 2, 2009, it was not included with the Commission’s notice of hearing and order to show cause dated June 22, 2009 and is not subject to adjudication in the present contested case.   

 

6.  Section 1-200(5), G.S., states:

 

“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. (emphasis added)

 

7.  Sections 1-210(a) and 1-212(a), G.S., state, respectively, in relevant parts:

 

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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. (emphasis added)

 

…

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. (emphasis added)

 

8.  Section 1-210(b), G.S., states in relevant part:

 

                  Nothing in the Freedom of Information Act shall be construed to require disclosure of…(5)(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, customer lists, film or television scripts or detailed production budgets 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 their disclosure or use, and (ii) are the subject of efforts that are reasonable under the circumstances to maintain secrecy….

 

9.  It is found that, by facsimile dated July 7, 2009, the respondent provided the complainant with an explanatory cover letter and twenty four pages, which were copies of all records maintained by the respondent concerning the revaluation of Betts Island, Parcel Number 5-95-1-0 for the 2008 Grand List. This parcel is one of twenty six properties on approximately twelve islands off the shore of the City of Norwalk.

 

10.  At the hearing, the attorney for the complainant stated that he was seeking the data and calculations that were used to establish a $400,000 base valuation for the Betts Island, Parcel Number 5-95-1-0 for the 2008 Grand List. The City of Norwalk retained J.F. Ryan Associates, Inc. to perform the relevant revaluation. The City of Norwalk also contracted with Patriot Properties, Inc. to provide the services of a computer program for mass appraisal, which was utilized by J.F. Ryan Associates, Inc. In the computer-assisted mass appraisal for the 2008 Grand List, 7,000 out of 29,000 properties in the City of Norwalk were physically inspected.

 

11.  It is found that the City of Norwalk uses the requested records of both J.F. Ryan Associates, Inc. and Patriot Properties, Inc. as the basis to fulfill its statutory mandate to re-evaluate real property. Moreover, various computer screens provided by the contractors are available to the City of Norwalk, which can be inspected by the public and printed out upon request. The complainant was provided with print-outs of screens relevant to his request.    

 

12.  The hearing officer requested that the respondent ask J.F. Ryan Associates, Inc. if they had any further requested records, particularly as specifically requested by the complainant at the hearing. The respondent filed a late filed exhibit stating that J. F. Ryan Associates, Inc. did not have additional requested records and responding to additional inquiries from the complainant concerning two arms length sales that were used to evaluate Betts Island, Parcel Number 5-95-1-0 for the 2008 Grand List.

 

            13.  At the request of the hearing officer, the respondent also submitted as late filed exhibits the contracts of the City of Norwalk with J.F. Ryan Associates, Inc. and Patriot Properties, Inc. (The terms of the contract between the City of Norwalk and J.F. Ryan Associates, Inc. limit the compensation to J.F. Ryan Associates, Inc. so as not to exceed $998,000. The terms of the contract between the City of Norwalk and Patriot Properties, Inc. limit the compensation to Patriot Properties, Inc. so as not to exceed $29,900.) It is found that the contract with Patriot Properties, Inc. specifically provides that the licensed computer program is the property of Patriot Properties, Inc. as a contractor and that the licensed computer program will remain confidential. The City of Norwalk’s license “prohibits access to the Source Code”, which is defined as the “programs used in the development of” the relevant computer program. The terms of the contract with Patriot Properties, Inc. demonstrate that Patriot Properties, Inc. believed, and it is found, that it’s “Source Code” had economic value from not being generally known and that Patriot Properties, Inc. took reasonable efforts to maintain the secrecy of the “Source Code”.

 

            14.  It is found that the respondent has only received about six FOIA requests in the last four years. It is also found that the respondent failed, at the time of receipt, to advise the City of Norwalk FOIA officer in the Office of the Corporation Counsel concerning the complainant’s request. The respondent testified that he confused the March 18, 2009 request with other request for records made by the complainant. The respondent also testified that he had seen the complainant in the respondent’s office during 2009 and concluded that the complainant’s request had been satisfied by his inspection of the computer terminal in the respondent’s office. The respondent had met with the complainant in 2007.

 

15.  It is concluded that the requested records, including the records in the possession of J.F. Ryan Associates, Inc. and Patriot Properties, Inc., but “used” by the City of Norwalk, are “public records” within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S. Docket #FIC 2007-514; Stephen Whitaker v. Commissioner, State of Connecticut, Department of Environmental Protection; Commissioner, State of Connecticut, Department of Public Works; and Pictometry International Corp.(records, including computer screens, provided as detailed in paragraphs 9 and 12, above, are data similar to the photographs ordered disclosed in FIC 2007-514); National Collegiate Athletic Association v. The Associated Press et al, No. 1D09-4385, Florida Court of Appeals, First District, October 1, 2009. 

  

16.  It is concluded that the respondent provided all requested records that he owned or maintained, but failed to provide such records promptly. Therefore, the respondent violated §1-212(a), G.S.

 

17.  It is concluded that a public agency may not contract away its statutory obligations under FOIA. Lieberman v. Board of Labor Relations, 216 Conn. 253 (1990).

 

18.  Based upon the findings at paragraph 13, above, however, it is concluded that the computer program of Patriot Properties, Inc. “(i) derive[s] 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 their disclosure or use, and (ii) [is] the subject of efforts that are reasonable under the circumstances to maintain secrecy….” Accordingly, the “computer programs or the like used by the Tax Assessors’ Office and/or any company agent retained by the Tax Assessor and/or the City of Norwalk”, as requested by the complainant (paragraph 2, above), are exempt as trade secrets from mandatory public disclosure pursuant to §1-210(b)(5)(A), G.S. The respondent did not violate §1-210(a) and 1-212(a), G.S., when he declined to take action to provide the complainant with the “Source Code” computer programs.

   

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

 

1.    Henceforth, the respondent shall confer with the City of Norwalk FOIA officer in the Office of the Corporation Counsel immediately upon receiving any request for records, and shall provide access to non-exempt requested records promptly.

 

 

 

 

                                                                                   

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 10, 2010.

 

 

 

____________________________

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:

 

Betts Island Oyster Farms, LLC

c/o Frederick A. Lovejoy, Esq.

276 Center Road

Easton, CT 06612

 

Office of the Tax Assessor, City

of Norwalk

c/o Brian L. McCann, Esq.

Associate Corporation Counsel Pos # 2

125 East Avenue

Norwalk, CT 06856

 

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2009-223FD/paj/3/11/2010