SC Year In Review: Justices Wade Into World Of Metadata
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. . . ."
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.