Connecticut court's ruling on FOIA and Pictometry imagery

Recently, a Superior Court in Connecticut made a ruling as to whether Pictometry imagery, metadata and software was subject to disclosure under the state's Freedom of Information Act. (FOIA). The state's Freedom of Information Commission (FOIC) ruled in 2008. (The request was made by a Mr. Stephen Whitaker, who is quite well known in FOIA circles, for cases such as this.) asked for Pictometry imagery, software and metadata under Connecticut's Freedom of Information Act.

The state's Freedom of Information Commission (FOIC) ruled in 2008 in part that:

a. software and metadata were trade secrets and therefore exempt from mandatory disclosure under FOIA; and

b. imagery was not subject to any of the FOIA exemptions and should be disclosed.

On appeal, the court in this decision ruled the following:

a. the disclosure of the imagery, without metadata and software, was not a security risk. (A security risk being one of the reasons a government agency in Connecticut does not have disclose information under FOIA);

b. material protected under the Federal Copyright Act, such as Pictometry imagery, was not exempted under the state's FOIA;

c. because the Pictometry imagery was protected by copyright, however, if Whitaker used it for anything other than "fair use" under the Copyright Act, Pictometry might have a claim against him (or perhaps the state). Specifically, the court stated: "[S]hould disclosure as ordered by the FOIC and use by Whitake not fall within "Fair Use" exception and infringe the copyright, matters not ripe for consideration here, Pictometry's rights and remedies for injunctive relief . . . remain intact. So too, it its contractual rights and remedies"; and

d. state agencies cannot charge Whitaker $25 per image they disclose to him, even though that is what they have to for each image under the contract with Pictometry.