FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on July 27, 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 24, 2009, the complainant requested that the respondent provide her with copies of all records for the 2008 revaluation concerning “all vacant land sales used in determining market land values” and “all land value data and supporting assumptions used in any regression analysis for land market valuations” (the “requested records”). 

 

3.  It is found that, by letter dated March 30, 2009, the respondent provided to the complainant a three page computer print-out listing “all sales from 10-1-06 to 10-1-08” with address, date of sale and price, and showing whether the property was improved or vacant.

 

4.  It is found that, by letter dated April 7, 2009, the complainant more specifically restated her request, asking the respondent to provide her with copies of all records for the 2008 revaluation concerning “the market sales data and analyses used to create the ‘land valuation pricing chart….’”

 

5.  It is found that, on April 13, 2009, with no cover letter, the respondent provided the complainant with a revised copy of the three page computer print-out, listing relevant sales, with an additional notation as to whether each sale was “qualified” or “unqualified.”

 

6.  By letter dated April 20, 2009 and filed with the Commission on April 23, 2009, the complainant appealed to the Commission, alleging that the two computer print-outs were “meaningless” and “bear no relation to the records and files requested.” She also requested that the Town of Sharon be penalized for failing to provide her with copies of the requested records.    

 

7.  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)

 

8.  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)

 

9.  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….

 

10.  It is found that the complainant has been a certified general real estate appraiser for over eighteen years, is a former commissioner of the State of Connecticut Real Estate Commission, and is also an attorney specializing in tax appeals.

 

11.  It is found that the Town of Sharon retained Vision Appraisal Technology, Inc. (“Vision Appraisal”) to perform the relevant revaluation. The respondent provided the complainant with access to inspect a copy of the Vision Appraisal revaluation manual, which the respondent maintains in her offices. The manual contains cost schedules and shows generally how the evaluation analysis is performed. The manual does not, however, show each step of actual calculations, and instead, only shows final results. The complainant spent at least two hours reviewing the Vision Appraisal revaluation manual. Finally, the complainant had a thirty five minute telephone conversation with Paul McKenney of Vision Appraisal concerning the revaluation calculations.

 

            12.  It is found that the Town of Sharon uses the requested records of Vision Appraisal as the basis to fulfill its statutory mandate to re-evaluate real property.

 

13.  At the request of the hearing officer, the respondent also submitted as late filed exhibits the contract of the Town of Sharon with Vision Appraisal and the Vision Appraisal Software License Agreement. (The terms of the contract between the Town of Sharon and Vision Appraisal limit the compensation to Vision Appraisal to $147,000.) It is found that the Software License Agreement specifically provides that:

 

a.       “[Vision Appraisal] grants to [the Town of Sharon] a non-transferable, limited, non-exclusive license object code of the Installed Software and the Documentation…”;

 

b.       “[the Town of Sharon] shall keep confidential the Software, the Documentation, the terms of this agreement and any other information of [Vision Appraisal] which is confidential, proprietary or nonpublic (‘Confidential Information’) and shall not disclose the Confidential Information to any Person…”;

 

c.       “Installed Software” is defined in Schedule 1.5 to be “the [Vision Appraisal], Windows-based appraisal software, Appraisal Vision,V6. This Software uses a Relational Database and a Visual Basic User Interface. The modules included provide for data maintenance, sales analysis, reporting and query, video storage and display, personal property valuation, and income capitalization”; and

 

d.      “Documentation” is defined to “mean the user documentation describing the Software and providing guidelines for its use, and any and all additions and updates thereto provided to [the Town of Sharon] by [Vision Appraisal], and any portion of the foregoing.”

           

14.  It is found that the “supporting assumptions used in any regression analysis”, as referenced at paragraph 2, above, and the analyses used to create the ‘land valuation pricing chart’, as referenced at paragraph 4, above, are included in the “Installed Software”, as defined at paragraph 13c., above, and the “Documentation”, as defined at paragraph 13d., above. Therefore, these assumptions and analyses are included in the Confidential Information that is not to be disclosed, pursuant to the provisions of the contract set forth at paragraph 13b. and paragraph 13a., above. The terms of the contract with Vision Appraisal demonstrate that Vision Appraisal believed, and it is found, that it’s “Installed Software” and the “Documentation” had economic value from not being generally known and that Vision Appraisal took reasonable efforts to maintain the secrecy of the “Installed Software” and the “Documentation”.

   

15.  It is concluded that the requested records, including the records in the possession of Vision Appraisal, but “used” by the Town of Sharon, 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 provided as detailed in paragraphs 3, 5 and 11, 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 she owned or maintained.

 

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 paragraphs 13 and 14, above, however, it is concluded that the “Installed Software” and the “Documentation” of Vision Appraisal “(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 “supporting assumptions used in any regression analysis for land market valuations” and the “analyses used to create the ‘land valuation pricing chart….’”, as requested by the complainant (paragraphs 2 and 4, respectively, 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 she declined to take action to provide the complainant with the “Installed Software” and the “Documentation” computer programs.

 

19.  Because there was no violation of the Freedom of Information Act herein, there is no basis for the assessment of any civil penalty.

 

 

 

 

 

 

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

 

1.      The complaint is hereby dismissed.

 

2.      The Commission observes that there is a public policy problem when property re-evaluations are, as is commonplace in Connecticut, contracted out to an independent contractor, with confidentiality provisions for the software of the contractor. Even a highly trained professional, like the complainant herein, cannot ascertain the detailed basis for the evaluation of her property. Of course, evaluation firms compete with each other for contracts with the various towns and have an interest in protecting the confidentiality of their software. The General Assembly may want to address these competing interests, and the gap in transparency that exists when persons attempt to determine in detail the basis for a given evaluation. In the meantime, of course, the Commission must apply the law as it currently exists.   

 

 

 

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

 

 

____________________________

S. Wilson

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:

 

Audrey Cole

270 West Cornwall Road

West Cornwall, CT 06796

 

Office of the Assessor,

Town of Sharon

C/o Judith Dixon, Esq.

Dixon & Brooks, P.C.

45 Center Street

Winsted, CT 06098

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-244FD/sw/3/11/2010