FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on March 23, 2010, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  Pictometry International Corp. moved without objection to intervene as party respondent.  Pictometry was granted party status, having satisfied the requirements of §1-21j-30 of the Regulations of Connecticut State Agencies.

 

After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

1.      The respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.     By letter of complaint dated and filed June 1, 2009, the complainant appealed to the Commission, alleging that respondents violated the Freedom of Information (“FOI”) Act by failing to comply completely with his May 27, 2009 request for certain electronic software and applications described in paragraph 3, below.

 

3.      It is found that by e-mails sent May 9 and May 27, 2009, the complainant requested that the respondents provide him with a copy, on an electronic storage device, of geographic information systems (“GIS”) data, metadata, and applications or programs.

 

4.      It is found that, by email sent May 28, 2009, the respondent Cavallari informed the complainant that he would need a 300 GB drive on which to copy the requested records, and to contact the respondent Varney to coordinate the timing of the delivery.    

 

5.      It is also found that, by email sent on the same day, the respondent Cavallari provided a list of the records to be provided (See Respondent’s Exhibit 5).

 

6.      The respondents contend that they have offered and are willing to provide all of the electronic files described on the list except for (a) Pictometry files that were the subject of Docket #FIC 2007-514 and are the subject of a pending administrative appeal (Department of Environmental Protection v. FOIC, Docket No. HHB-CV-08-4019025-S); and (b) electronic files that are either (i) licensed applications or (ii) data not in the respondents’ custody or control.

 

7.     The complainant contends that the respondents’ offer is incomplete, and that he is entitled to the electronic files described in paragraph 6(b)(i) and (ii), above.

 

8.                  Section 1-200(5), G.S., defines public records or files as:

 

… 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.]

 

9.       Section 1-210(a), G.S., provides in relevant part:

 

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…receive a copy of such records in accordance with section 1-212.

 

10.  Section 1-211(a), G.S., provides:

 

Any public agency which maintains public records in a computer storage system shall provide, to any person making a request pursuant to the Freedom of Information Act, a copy of any nonexempt data contained in such records, properly identified, on paper, disk, tape or any other electronic storage device or medium requested by the person, if the agency can reasonably make such copy or have such copy made.  Except as otherwise provided by state statute, the cost for providing a copy of such data shall be in accordance with the provisions of section 1-212. [Emphasis added.]

 

11.  It is found that the disclosure of electronic files described in paragraph 6(a), above, is a matter already finally adjudicated by this Commission in Docket #FIC 2007-514, Whitaker v. DEP, and subject to a pending appeal, and therefore not properly before the Commission in this matter.  The respondents therefore did not violate the FOI Act by declining to provide those files.

 

12.  It is found that the respondents do not have the portion of the complainant’s request that seeks “LIDAR” files, which comprise elevation data, described in paragraph 6(b)(ii), above.

13.  It is found that the remainder of the electronic files withheld by the respondents, including so-called “templates” and “scripts,” described in paragraph 6(b)(i), are various off-the-shelf commercial software applications licensed to the respondent Department used to manipulate data, and are therefore not themselves “recorded data or information” within the meaning of §1-200(5), G.S., or “data” within the meaning of §1-211(a), G.S.

14.  It is therefore concluded that the respondents did not violate §§1-210(a) or 1-211(a), G.S., when they declined to provide licensed software applications to the complainant.

 

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

 

            1.  The complaint is dismissed.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 12, 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:

 

Stephen Whitaker

15 East Putnam Avenue

Greenwich, CT 06830

Augustus Cavallari, Counsel,

State of Connecticut,

Department of Information Technology

101 East River Drive

East Hartford, CT 06108

 

Michael Varney, State of Connecticut,

Department of Information Technology; and

State of Connecticut

Department of Information Technology

C/o Charles H. Walsh, Esq.

Assistant Attorney General

55 Elm Street, 3^rd Floor Annex

Hartford, CT 06106

 

Pictometry International Corp.

C/o Timothy P. Jensen, Esq. and

Amy E. Drega, Esq.

HinckleyAllenSnyder, LLP

20 Church Street

Hartford, CT 06103

 

and

 

Joseph P. Titterington, Esq.

Dunlap Codding, P.C.

1601 Northwest Expressway

Suite 1000

Oklahoma City, OK 73118

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

FIC/2009-316FD/sw/5/14/2010