SC Year In Review: Justices Wade Into World Of Metadata
After a hearing, the Freedom of Information Commission reached several conclusions. First, it held that the federal Copyright Act was not a "federal law" within the meaning of Section 1-210(a) because the Copyright Act does not actually prohibit the disclosure of copyrighted information. Second, the commission concluded that the metadata and software were exempt from disclosure on the ground that they were trade secrets. It therefore ordered the disclosure of images without the associated metadata, although it was not at all clear that Mr. Whitaker was interested in mere photographs.
Third, it concluded that the $25 per image charge set forth in the licensing agreement between Pictometry and the state was effectively void on the theory that public agencies may not contract out of their obligations under the FOIA to provide copies of the documents to the public for a statutorily-mandated fee.
'Abuse Of Discretion'
The DEP, along with the Department of Public Works, which also had a role in the case, filed administrative appeals to the Superior Court, which largely affirmed the FOIC's findings and conclusions. The state agencies found a more receptive audience in the justices of the Connecticut Supreme Court.
Initially, the Court agreed with the agencies' argument that the FOIC had erred by ordering them to disclose images stripped of their metadata when what Mr. Whitaker wanted were the images with the associated data. "[W]e conclude that it was an abuse of discretion for the commission to require the DEP to provide copies of approximately 400,000 photographic images stripped of the associated metadata to Whitaker in the absence of any evidence that he wants them or that he has any use for them in the format provided." The Court also noted an absence of evidence in the record that DEP, as opposed to Pictometry, had the technical ability to strip the metadata from the images.
The Court then addressed the most important legal question in the case, to wit, whether the federal Copyright Act was a "federal law" for the purposes of the federal law disclosure exemption in section 1-210a. As noted, the Court answered that question in the affirmative. Specifically, it held: "[T]o the extent that the [FOIA] and the Copyright Act impose conflict 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 that act that are inconsistent with federal copyright law." (Emphasis supplied.)
According to the Court, the $25 per image copying fee required under the licensing agreement between the state and Pictometry was not "a fee for the mechanical, material or labor costs of reproducing copies of the copyright materials. Rather, it was a
licensing fee, i.e., a fee for the use of another entity's private property. Nothing in [the FOIA] suggests that it was intended to prohibit state agencies from passing on licensing fees."
In sum, Pictometry represents the Supreme Court's effort to balance the "public's right to know" with the legal rights that federal law affords to owners of copyrighted material who license that material to the state. As I said, it was a fairly quiet year for the Court on the freedom of information front. •