Federal Law Exemption in State FOIA Applies To Copyright; Royalties May Be Passed On

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The federal Copyright Act is a “federal law” that makes certain information exempt from public disclosure under the state Freedom of Information Act, the Connecticut Supreme Court ruled in a decision dated for official release on Jan. 29 (Pictometry International Corp. v. Connecticut Department of Environmental Protection, Conn., No. 307-cr-14, 1/29/13).

Reversing a ruling by a state trial court, the court also ruled in the alternative that if the state is required to hand over information that it has licensed from a third party, then it may pass on to the FOIA requester the $9 million in licensing fees that it would be charged pursuant to its licensing agreement.

Connecticut Resident Demands Images, Data

Pictometry International Corp. of Rochester, N.Y., is an aerial imaging company. In 2006, the Connecticut Department of Information Technology entered into a contract for several state agencies to use Pictometry's aerial images, metadata associated with the images, and software to view the images.

In 2007, Stephen Whitaker of Greenwich, Conn., requested that the Connecticut Department of Environmental Protection--one of the state agencies authorized to make use of the Pictometry information--provide him copies of all 400,000 images, the metadata, and the software required to view them, pursuant to the Connecticut Freedom of Information Act, Conn. Gen. Stat. §1-200 et seq.

The DEP asserted that the information requested was subject to an exemption set forth in Section 1-210(a), which states that for minimal costs:

Except as otherwise provided by any federal law … all records maintained or kept on file by any public agency … shall be public records and every person shall have the right to (1) inspect …, (2) copy … , or (3) receive a copy of such records … .  


According to the DEP, because the Pictometry information was subject to the protection of the federal Copyright Act, they were not available under the FOIA's minimal fee provision, Section 1-212. The DEP stated that Whitaker could obtain copies pursuant to the licensing agreement with Pictometry, which set a licensing fee of $25 for each copy made by non-parties to the license, amounting to about $9 million for all the images.

Commission, Trial Court Require Disclosure

Whitaker then filed a complaint with the Connecticut Freedom of Information Commission. The commission first determined that the metadata and software images were exempt as trade secrets under Section 1-210(B)(5)(A) of the FOIA.

However, it then determined that the Copyright Act was not a “federal law” for the purposes of Section 1-201(a), because the Copyright Act does not require that the information in question be treated as confidential information.

The commission also ruled that the charge of $25 per image was unreasonable and that Pictometry could file a private cause of action against the DEP to enforce the licensing fee, but that the DEP could not recoup the licensing fees from Whitaker. According to the commission, the state could not “contract away its statutory obligations under” the FOIA by agreeing to the unreasonable licensing fee.

The commission thus ruled that the DEP must provide copies of the images to Whitaker at minimum cost, but not the associated data.

On appeal, the Connecticut Superior Court for the Judicial District of New Britain affirmed the FOI commission's rulings. All parties appealed.

Copyright Act Is a 'Federal Law'

Chief Justice Chase T. Rogers reversed the rulings after concluding that the federal law exemption was applicable in this case. Citing the language of Section 1-210(a), the court said:

[T]o the extent that the act and the Copyright Act impose conflicting 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 the act that are inconsistent with federal copyright law.  

The court also said that neither the FOI commission, nor the Connecticut Supreme Court had jurisdiction to determine whether the use in question constituted fair use under the Copyright Act.

Next, the court rejected the commission's alternative ruling, that even if the DEP was required by the FOIA to disclose Pictometry's information, that it could not pass on the $25 licensing fee to Whitaker.

Section 1-212 of the FOIA limits the “mechanical, material, and labor” costs of providing information to the public, the court noted, but the licensing fee was none of these things. Furthermore, if agencies could not pass along such costs, then government agencies would effectively be prohibited from making use of certain kinds of materials protected by copyright law.

The court said:

[I]n the present case, if the commission determines on remand that Whitaker wants and is entitled to copies of all of the 400,000 photographic images stripped of the metadata, the DEP would be required to pay Pictometry more than $9 million to provided them. Needless to say, the state is not in a financial position to expend millions of dollars to provide private individuals with copies of copyrighted public records for their personal use, and the commission has pointed to no evidence that the legislature intended such a drastic and unrealistic result when it enacted the act.  


The court thus reversed the trial court's rulings and directed it to remand the matter back to the FOI commission for further proceedings in accordance with the court's opinion.

Concurring in the court's opinion were Justices Flemming L. Norcott Jr., Richard N. Palmer, Peter T. Zarella, Dennis G. Eveligh, and Lubbie Harper Jr.

Pictometry was represented by Joseph P. Titterington of Dunlap Codding, Oklahoma City. The state was represented by Matthew I. Levine of the Office of the Attorney General of Connecticut and Lisa Fein Siegel of the Connecticut Freedom of Information Commission's Office of the Counsel.

By Anandashankar Mazumdar  

Text is available at http://pub.bna.com/ptcj/Pictometry2013Jan29.pdf.