Opinion
No. CV02 051 91 53S
January 2, 2004
MEMORANDUM OF DECISION
This is an administrative appeal from a final decision of the defendant, Freedom of Information Commission ("FOIC"), brought pursuant to General Statutes § 4-179(a). The Plaintiff, Director, Department of Information Technology, Town of Greenwich (the "Town") seeks review of the decision of the FOIC in its contested case Docket #FIC 2001-546.
The administrative record sets forth the following factual background. On December 4, 2001, (Subsequent to the catastrophic September 11, 2001 terrorist attacks) Stephen Whitaker ("Complainant") submitted a written request to the Greenwich Board of Estimate and Taxation (the "Board") for a copy of the town's Geographic Information System ("GIS") database. (Return of Record ("ROR"), p. 6. More specifically, complainant requested all the GIS database pertinent to orthophotography, Arc Info coverages which is a GIS software program, sequel server which is a database format that houses the tax assessment records, and all documentation created to support and define coverages for the Arc Info data set. (ROR, Transcript p. 33.) In a letter dated December 4, 2001 complainant was notified that his request would be forwarded to the Director of Information Technology ("Director") for disposition. (ROR, p. 7.) The Director, in a letter dated December 10, 2001, denied complainant's request for a copy of the GIS database claiming the data requested was exempt from disclosure under the Freedom of Information Act ("FOIA") pursuant to General Statutes § 1-210(b), including but not limited to subsections (5) and (20). (ROR, p. 8.)
Section 1-210(b), G.S., provides in relevant part:
Nothing in the Freedom of Information Act shall be construed to require disclosure of: CT Page 800
Section 1-210(b)(5)(A), G.S., provides in relevant part:
Trade secrets, which for purposes of the Freedom of Information Act, are defined as information, including formulas, patterns, compilations, programs, devices, methods, techniques, processes, drawings, cost data, or customer lists that (i) derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from their disclosure or use, and (ii) are the subject of efforts that are reasonable under the circumstances to maintain secrecy;
Section 1-210(b)(20), G.S., provides in relevant part:
Records of standards, procedures, processes, software and codes, not otherwise available to the public, the disclosure of which would compromise the security or integrity of an information technology system.
By electronic mail dated December 12, 2001, complainant filed a complaint with the FOIC alleging that the town refused to provide him with a copy of the town's computerized public records located in the GIS. (ROR, p. 4.) The FOIC held a hearing on the matter on January 25, 2002 before Mary Schwind ("Hearing Officer"), designated for this matter. The Hearing Officer, in her report dated October 22, 2002, found the following:
1. The requested records are public records within the meaning of § 1-210(a). (ROR, p. 74.)
2. Contentions for an exemption are speculative in nature. (ROR, p. 74.)
3. Respondent failed to prove that the requested records constituted" records of standards, procedures, processes, software and codes," within meaning of § 1-210(b)(20), G.S. (ROR, p. 75.)
4. Respondent failed to prove that the requested records constituted a trade secret within the meaning of § 1-210(b)(5)(A), G.S. (ROR, p. 75.)
5. Respondent violated the FOIA. (ROR, p. 76.)
6. Complainant was not requesting any exempt information. (ROR, p. 76.)
The town was ordered to provide complainant with copies of his request, excluding all medical information and social security numbers, if any. (ROR, p. 76.) On November 13, 2002 at its regular meeting, the FOIC adopted the hearing officer's report as a Final Decision and this appeal followed. (ROR, p. 86.)
This case presents a significant question of first impression in this state that will define the extent to which documents located in a municipality's GIS database are subject to public disclosure under the FOIA. The FOIA expresses a strong legislative policy in favor of the open conduct of government and free public access to government records. Wilson v. Freedom of Information Commission et al., 181 Conn. 324, 328, 435 A.2d 353 (1980).
"The standard of review of an agency decision is well established. Ordinarily, [the] court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes . . . [A]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . Furthermore, when a state agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law." Office of Consumer Counsel v. Dept. of Public Utility Control, 252 Conn. 115, 120, A.2d 1257 (2000). Since the question of whether the GIS maps are exempt from disclosure pursuant to General Statutes § 1-210(b)(5)(A), 1-210(b)(19), and 1-210(b)(20) has not been subject to judicial scrutiny, this court's review is plenary. Nonetheless, conclusions of law reached by the administrative agency must stand if the court determines that they resulted from the correct application of the law to the facts found and could reasonably and logically follow from such facts. New Haven v. Freedom of Information Commission, 205 Conn. 767, 774, 535 A.2d 1297 (1988). This court in making its determination in plenary fashion cannot completely disregard the agency's legal conclusions if they are fully supported by the record.
The court first considers whether plaintiff established a legitimate public safety concern over release of GIS data. Plaintiff argues that release of the GIS database would result in the assistance and facilitation of criminal and/or terrorist activities. (ROR, p. 78.) Plaintiff relies solely on the testimony given by the Chief of Police for the Town of Greenwich ("Chief") to support this argument. There is no nexus between his opinion and the ultimate conclusion. More importantly plaintiff fails to provide through the Chief's testimony any specific statistical data that correlates criminal activity or potential terrorist type activity with disclosure of GIS data. Additionally, no specific evidence was provided to demonstrate how disclosure of the requested data would compromise the security or integrity of the GIS. It is significant that complainant carefully requested those portions in the GIS database pertinent to orthophotography and tax assessments, which are public records, and not the entire contents of the GIS database which includes additional information that may not be for public disclosure.
The court next considers whether GIS data is exempt from disclosure under General Statutes § 1-210(b)(5)(A)(ii), supra. The Connecticut Supreme Court has long held that, when reviewing agency decisions, the courts should "accord great deference to the construction given [a] statute by the agency charged with its enforcement." Perkins v. Freedom of Information Commission, 228 Conn. 158, 165, 635 A.2d 783 (1993). The general rule under FOIA favors disclosure. Exceptions to that rule will be narrowly construed in light of the underlying purpose of the act. Mazzola v. Southern New England Telephone Co., 169 Conn. 344, 355, 363 A.2d 170 (1975). Furthermore, the burden of proving the applicability of an exemption rests upon the agency claiming it. Plaintiff argues that GIS data is a trade secret, within the meaning of § 1-210(b)(5)(A)(ii), G.S. This court is not persuaded that GIS data is a trade secret. The GIS database is merely a computerized compilation of each department's records. The public could inconveniently go to each department and request public data. The GIS database is a convenience to the town so that all the departments' records can be accessed from one system. This convenience should also benefit the public.
Despite the fact that complainant could gain economic value from a copy of the GIS database, plaintiff's argument is without merit because a member of the public could request copies from individual departments and once assimilated gain the same economic value from their copies that complainant would from a copy of the GIS database. Anxiety concerning public safety should not become a canard for creating an exemption. To require the public to obtain information on a piece meal basis does nothing to promote the legislative concerns that have been mandated through our Freedom of Information Statute. Open government is not promoted when the public is required to sift through voluminous documents in various departments and the municipality can counter this by push button automation.
The claim that the GIS records are trade secrets is as best specious. Trade secrets are secrets of those private entities that are in a trade but to argue that a municipality can have a trade secret strains credulity.
In addition to the other reasons the Town of Greenwich asserts for its claim of exemption it adds a claim that computer hackers may break through the security "fire wall" and steal or manipulate and corrupt the data in a way that may go undetected for years. Again, a claim that is freely asserted and lacks documentation or expert testimony leaves nothing in the record except the claim. With the degree of expertise and sophistication of today's computer age an unsupported claim of this sort would apply to many aspects of life where computer technology plays a significant part. The court finds that Mr. Whitaker's request for specific information from the GIS data base is appropriate for public disclosure.
The appeal is dismissed.
OWENS, JUDGE.