Pictometry International Corp. v. Freedom of Information Commission
CourtSupreme Court of Connecticut
Date FiledJanuary 29, 2013
DocketSC18724
JudgeRogers; Norcott; Palmer; Zarella; Eveleigh; Harper
StatusPublished
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Full Opinion
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PICTOMETRY INTERNATIONAL CORPORATION v.
FREEDOM OF INFORMATION
COMMISSION ET AL.
(SC 18724)
DEPARTMENT OF ENVIRONMENTAL PROTECTION
v. FREEDOM OF INFORMATION
COMMISSION ET AL.
(SC 18725)
Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh and Harper, Js.*
Argued October 23, 2012—officially released January 29, 2013
Joseph P. Titterington, pro hac vice, with whom were
Emily E. Campbell, pro hac vice, and, on the brief,
Timothy P. Jensen and Amy E. Markim, for the appel-
lant in Docket No. SC 18724 (plaintiff in the first case).
Matthew I. Levine, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Kimberly Massicotte, assistant attorney gen-
eral, for the appellant in Docket No. SC 18725 (plaintiff
in the second case).
Lisa Fein Siegel, commission counsel, with whom,
on the brief, was Colleen M. Murphy, general counsel,
for the appellee in Docket Nos. SC 18724 and SC 18725
(named defendant in both cases).
Opinion
ROGERS, C. J. The primary issue to be resolved in
these appeals is whether public records that are pro-
tected by federal copyright law fall within the ‘‘other-
wise provided by any federal law’’ exemption to the
Freedom of Information Act (act), General Statutes § 1-
200 et seq., set forth in General Statutes § 1-210 (a)
(federal law exemption).1 The named plaintiff in the
first case, Pictometry International Corporation (Pic-
tometry), contracted with the department of informa-
tion technology (DOIT) to license the plaintiff in the
second case, the department of environmental protec-
tion (DEP),2 to use certain computerized aerial photo-
graphic images of sites within the state and associated
data that are owned and copyrighted by Pictometry.
The defendant Stephen Whitaker requested that the
DEP provide him with, among other things, copies of
the computerized images and associated data. The DEP
responded that the images were not public records sub-
ject to the act because, as copyrighted materials, they
fell into the federal law exemption. The DEP indicated,
however, that Whitaker could obtain copies of the pho-
tographic images if he paid the $25 per image fee pro-
vided for in the licensing agreement. The DEP also
stated that the disclosure of the images to Whitaker
would be subject to a determination by the department
of public works (DPW) that disclosure would not pose
a public safety risk pursuant to § 1-210 (b) (19).3
Whitaker then filed a complaint against the DEP with
the named defendant, the freedom of information com-
mission (commission). The commission concluded that,
pursuant to the act, the DEP was required to provide
Whitaker with copies of the photographic images ‘‘ ‘at
its minimum cost,’ ’’ but was not required to provide
the associated data. It further concluded that disclosure
of the images without the associated data would not
pose a public safety risk. Pictometry and the DEP then
filed separate appeals from the commission’s decision
in the trial court, which were subsequently consoli-
dated.4 The trial court affirmed the commission’s deci-
sion and rendered judgments dismissing the appeals,
and these appeals followed.5 We conclude that, because
the commission improperly ordered the DEP to provide
copies of the images without first determining whether
Whitaker wanted copies of the images stripped of the
associated data, whether it was feasible for the DEP
to provide such copies and whether doing so would
pose a public safety risk, the matter must be remanded
to the commission for further proceedings. We further
conclude that, if the commission determines that Whi-
taker wants and is entitled to copies of the photographic
images, the copying of the photographic images must be
done in compliance with the provisions of the licensing
agreement and federal copyright law, including pay-
ment by Whitaker of the $25 per image fee.
The record reveals the following undisputed facts
and procedural history. Pictometry is a private corpora-
tion in the business of selling specialized aerial photo-
graphic services throughout the United States.
Pictometry’s processes are capable of capturing high-
resolution oblique and orthographic aerial photo-
graphic images.6 The images are owned by Pictometry
and are protected by the federal Copyright Act, 17 U.S.C.
§ 101 et seq.7 Pictometry’s processes also generate
metadata, or data that describes data, at the moment
that a photographic image is taken. These metadata
include the time that the image was captured, the angle
at which it was captured and the latitude, longitude
and altitude of the camera. The metadata is entered
into Pictometry’s proprietary software, which is pro-
tected by federal copyright and state trade secret laws.
The software is capable of generating precise measure-
ments of the photographed site.
In March, 2006, Pictometry entered into a contract
with the DOIT pursuant to which Pictometry granted
the DOIT and other authorized state agencies, including
the DEP, a license to use its software, metadata and
images for governmental purposes (licensing
agreement) in exchange for a fee of $793,000. The DOIT
also agreed that licensed users would not reproduce any
of the licensed images for use by persons not covered by
the licensing agreement unless the licensed user paid
Pictometry a fee of $25 per image, which fee the licensed
user was authorized to pass on to the person requesting
the copy.8
On July 5, 2007, Whitaker sent a freedom of informa-
tion request by e-mail to the DEP, requesting copies of
all contracts with Pictometry, all imagery provided to
the DEP by Pictometry and any software required to
view the Pictometry images. In response, the DEP sent
an e-mail to Whitaker to which it attached a copy of the
licensing agreement between the DOIT and Pictometry,
except for appendix C to the agreement, which Pictome-
try claimed was exempt trade secret information pursu-
ant to § 1-210 (b) (5).9 The DEP stated in the e-mail
that the requested images were exempt from disclosure
under the act pursuant to the federal law exemption
because they were protected by federal copyright law.
The DEP also stated that Whitaker could obtain copies
of the images if he paid the $25 per image fee provided
for in the licensing agreement. Because the DEP had
139,148 oblique images and 245,806 orthographic
images on file, however, it suggested that Whitaker
might want to narrow his request to images of certain
geographic areas. Finally, the DEP stated that no images
would be released to Whitaker until the DPW had deter-
mined that disclosure would not pose a safety risk.
Whitaker then filed a complaint with the commission
claiming that the DEP had violated the act by refusing
to provide copies of the photographic images and meta-
data. Pictometry filed a petition to intervene in the
matter, which the commission granted.
After Whitaker filed his complaint with the commis-
sion, the DEP sent a letter to the DPW asking whether
release of the Pictometry images would pose a signifi-
cant safety risk to the public pursuant to § 1-210 (b)
(19). The commissioner of public works responded to
the letter on January 24, 2008, indicating that Pictome-
try’s proprietary software would enable a person to
manipulate an image ‘‘to include displaying a location
from all four directions . . . and measuring the height,
width and length of features such as buildings, bridges,
roads, towers, trees and walls.’’ The commissioner of
public works also stated that ‘‘the exemption of specific
images itself may be a security risk. By redacting certain
exempt images of important assets, we essentially pro-
vide a road map to those assets.’’10 The commissioner
of public works directed the DEP ‘‘to withhold from
disclosure Pictometry’s software and [geographic infor-
mation system] data of critical infrastructure and key
resources that are not available to the public’’ because
disclosure would present a risk of harm to the state
and its citizens.11
The commission conducted a hearing on Whitaker’s
complaint against the DEP on January 31, 2008. There-
after, Whitaker filed a complaint against the DPW and
a motion to consolidate the proceedings on that com-
plaint with the pending proceeding against the DEP.
The commission treated the complaint against the DPW
as a motion to join the DPW as a respondent in the
proceeding against the DEP, and granted the motion.
Thereafter, the commission conducted additional hear-
ings on the matter.
Ultimately, the commission concluded that Pictome-
try’s software and metadata were trade secrets within
the meaning of § 1-210 (b) (5) (A) and, therefore, were
exempt from the act. It also concluded that the Copy-
right Act was not a ‘‘federal law’’ for purposes of the
federal law exemption because copyright law does not
require that copyrighted material be treated as confi-
dential. In addition, the commission concluded that,
because the DPW’s determination that disclosure of
some of the images could pose a safety risk was based
on the assumption that the metadata would also be
disclosed, and because the images alone revealed noth-
ing that could not be observed by visible inspection or
a photograph of a site, disclosure of the images did not
pose a safety risk for purposes of the exemption set
forth in § 1-210 (b) (19). Finally, the commission con-
cluded that ‘‘the charge of $25 per image in addition to
the approximately $700,000 two year licensing
agreement would be an unreasonable charge and [that
the] DEP is not entitled to recoup those costs by charg-
ing [Whitaker] for disclosure.’’ Accordingly, the com-
mission concluded that the DEP had violated the act
and ordered the DEP to provide Whitaker with copies
of the images, without any associated metadata or soft-
ware, at ‘‘its minimum cost.’’
Pictometry, the DEP and the DPW then filed separate
appeals from the commission’s decision in the trial
court, which appeals were ultimately consolidated for
trial. The trial court concluded that the commission’s
determination that the disclosure of the images to Whi-
taker would not pose a safety risk was supported by
the evidence; the commission had properly determined
that federal copyright law is not encompassed by the
federal law exemption because it does not shield copy-
righted material from disclosure;12 and the commission
properly determined that the DEP could not pass the
$25 per image copying fee on to Whitaker because pub-
lic agencies may not contract out of their obligations
under the act. Accordingly, the trial court dismissed
the appeals.
Pictometry and the DEP then filed these appeals.
Pictometry claims that the commission improperly
determined that the Copyright Act is not a ‘‘federal law’’
for purposes of the federal law exemption. The DEP
also makes this claim, and further contends that the
commission improperly reconfigured Whitaker’s
request to apply only to the photographic images,
stripped of the associated metadata, without providing
an opportunity for the DEP and Pictometry to respond
to the request as reconfigured or to determine whether
the release of the images stripped of the metadata would
pose a safety risk. The commission disputes these
claims, and also contends that the DEP lacks standing
to challenge the trial court’s determination that the
commission properly concluded that disclosure of the
images would not pose a safety risk because the DPW
did not appeal from that determination.
I
We first address the DEP’s claim that the commission
improperly ‘‘reconfigured’’ Whitaker’s request when it
ordered the DEP to provide Whitaker with copies of
the photographic images licensed for use by the DEP,
stripped of any associated metadata. The DEP contends
that the commission’s order constituted an abuse of
discretion because: (1) it is unclear whether Whitaker
even wants the photographic images if they are stripped
of any associated metadata; (2) the DEP has had no
opportunity to determine whether it is feasible to strip
the photographic images of the metadata; and (3) the
DEP has had no opportunity to determine whether dis-
closure of the photographic images stripped of the
metadata would pose a significant safety risk. We agree
with the DEP.
We first address the DEP’s claim that the commission
improperly ordered it to provide copies of the photo-
graphic images stripped of the metadata to Whitaker
when it was unclear whether he wanted or could use
the records in that format. The following additional
facts are relevant to our resolution of this claim. In his
initial request to the DEP, Whitaker requested ‘‘[a]ll
contracts with [the] DEP and Pictometry . . . for Pic-
tometry services, data and software. All Pictometry
imagery and any software required to view the Pictome-
try images. Any DEP documents demonstrating compli-
ance with [General Statutes § 1-211 (c)] . . . .’’ At the
January 31, 2008 hearing before the commission, Whi-
taker was asked whether he was requesting that the
commission order the DEP to give him the metadata.
He responded: ‘‘Yes, [the imagery is] useless without
it. The imagery, not knowing where it is, is a jigsaw
puzzle with no matching curves.’’ Whitaker also stated
at a September 3, 2008 hearing before the commission,
which was conducted after the commission had issued
a proposed decision on the matter, that ‘‘I . . . don’t
like having images [that] I can’t effectively use without
licensing proprietary and expensive software from Pic-
tometry.’’ He further stated that ‘‘[t]he metadata which
has been found to be proprietary in this proposal for
decision is the data which actually references where
the camera was in relation to the [object] on the ground,
which direction it was facing, which actually makes it
possible to properly identify the image. . . . [W]ithout
the metadata being included with the imagery, it’s actu-
ally built into the imagery, it wouldn’t be possible to
develop a different viewer to use these.’’ Later during
the hearing, Whitaker stated that ‘‘if you give me 400,000
images with no ability to go anywhere, or find which
image relates to which spot on the land, it’s useless.’’
General Statutes § 1-206 (b) (2) provides in relevant
part: ‘‘In any appeal to the [commission] under subdivi-
sion (1) of this subsection or subsection (c) of this
section, the commission may confirm the action of the
agency or order the agency to provide relief that the
commission, in its discretion, believes appropriate to
rectify the denial of any right conferred by the Freedom
of Information Act. . . .’’ Accordingly, we review the
commission’s ruling that the DEP must provide Whi-
taker with copies of the photographic images stripped
of the metadata for abuse of discretion.13
In support of its position that it was within its discre-
tion to order the DEP to provide copies of the photo-
graphic images stripped of any associated metadata,
the commission relies on General Statutes § 1-211 (a),14
which provides in relevant part: ‘‘Any public agency
which maintains public records in a computer storage
system shall provide, to any person making a request
pursuant to the Freedom of Information Act, a copy of
any nonexempt data contained in such records, prop-
erly identified, on paper, disk, tape or any other elec-
tronic storage device or medium requested by the
person, if the agency can reasonably make any such
copy or have any such copy made. . . .’’ (Emphasis
added.) The commission contends that this statute
clearly authorizes it to deny a portion of a request for
public records if some of the requested records are
exempt.
The commission also relies on this court’s decision
in Hartford Courant Co. v. Freedom of Information
Commission, 261 Conn. 86, 801 A.2d 759 (2002), for
the proposition that it can order a public agency to
separate exempt computerized data from nonexempt
data and to produce only the nonexempt data. See id.,
94–95 (when person submits request pursuant to § 1-
211 for nonexempt data contained in computerized
record that contains both exempt and nonexempt data,
‘‘the disclosing agency must comply with such a request
either by developing a program or contracting with an
outside entity to develop a program’’ to separate exempt
data from nonexempt data).
We conclude that neither § 1-211 nor our decision
in Hartford Courant Co. supports the commission’s
position. Hartford Courant Co. is distinguishable from
the present case because, in that case, the plaintiff had
requested ‘‘an electronic copy of the public portion of
all of the [department of public safety’s] criminal history
records for all of the adults in those records.’’ (Empha-
sis added.) Id., 89. Thus, the plaintiff’s request was
clearly limited to nonexempt records. In contrast, in
the present case, Whitaker requested ‘‘[a]ll Pictometry
imagery and any software required to view the Pictome-
try images.’’ During the course of the proceedings on
Whitaker’s complaint, it became clear that Whitaker’s
request for ‘‘Pictometry imagery’’ encompassed the
metadata embedded in the computerized images. It also
became clear that he believed that the images stripped
of the associated metadata would be useless to him.
Thus, unlike in Hartford Courant Co., the record in
the present case supports the conclusion that Whitaker
requested both exempt information and nonexempt
information and that the requests were inextricably
intertwined because the copies of the nonexempt
images would be worthless to him without access to
the exempt metadata. We agree with the proposition
that, under some circumstances, the commission has
the discretion to redact exempt information from other-
wise public records requested pursuant to the act, and
that it can order a party to produce computerized non-
exempt records in a format other than the format in
which they are maintained by the public agency. Under
the facts of this case, however, we 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 meta-
data 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 DEP also claims that the commission improperly
ordered it to provide copies of the photographic images
without providing an opportunity for the DEP to deter-
mine whether it has the technical capability to strip the
metadata from the computerized photographic images
in its possession. The following additional facts are
relevant to our resolution of this claim. At an August
27, 2008 hearing before the commission, one of the
commissioners stated that ‘‘the testimony was that the
[DEP] couldn’t strip out . . . all that data from the
visual image and provide it to . . . Whitaker, only Pic-
tometry could do that.’’ Counsel for Pictometry con-
firmed that that was the case. When the commission
inquired what it would cost to strip the metadata from
the images, counsel for Pictometry responded that he
did not know. A member of the commission then indi-
cated that, if Pictometry were required to produce the
images ‘‘all on one disk,’’ the cost ‘‘would be the cost
of doing the disk.’’ The chairperson of the commission
then asked Whitaker in what format the images could
be produced. Whitaker responded that he believed that
stripping the images of the metadata was inappropriate
because it might require the DEP ‘‘to contract back
with Pictometry for tens of thousands of dollars to strip
out the metadata, and you’re going to have created such
a high cost hurdle that none of these records are ever
going to be disclosed.’’ The commission did not respond
to this argument, however, and never made a finding
as to whether or how the DEP could produce the copies.
Thus, there is no evidence in the record that the DEP
has the capability to provide copies of the photographic
images stripped of the metadata. Indeed, the record
supports the conclusion that only Pictometry would be
able to do so. Accordingly, it may be impossible for
the DEP to comply with the commission’s order.15 We
conclude, therefore, that the commission abused its
discretion by ordering the DEP to produce copies of
the images stripped of the metadata without providing
an opportunity for the parties to determine whether or
how the DEP could comply with the order.
Finally, we address the DEP’s claim that the commis-
sion improperly ordered it to provide Whitaker with
copies of the photographic images stripped of associ-
ated metadata without providing an opportunity for the
DEP and the DPW to determine whether doing so would
pose a safety risk for purposes of § 1-210 (b) (19).16
That statute provides that, if the commissioner of public
works, in consultation with the chief executive officer
of a state agency, finds reasonable grounds to believe
that disclosure of public records may result in a safety
risk ‘‘of harm to any person, any government-owned or
leased institution or facility or any fixture or appurte-
nance and equipment attached to, or contained in, such
institution or facility,’’ the act does not require disclo-
sure of the records. General Statutes § 1-210 (b) (19);
see footnote 3 of this opinion. As we previously have
indicated in this opinion, Whitaker’s request encom-
passed both the photographic images and the associ-
ated metadata, and the DPW’s assessment of the safety
risk was premised on the assumption that both the
metadata and software were subject to disclosure.
Accordingly, the DPW did not have an opportunity to
consider whether the disclosure of the photographic
images stripped of metadata would pose a safety risk.
Under § 1-210 (b) (19), this safety determination is to
be made by the DPW in consultation with the head of
the relevant state agency, not by the commission. We
conclude, therefore, that the commission abused its
discretion by ordering the DEP to provide copies of the
photographic images stripped of the associated meta-
data to Whitaker without first providing the DEP and
the DPW with an opportunity to determine whether
their disclosure would pose a safety risk. Accordingly,
we conclude that the matter must be remanded to the
commission for further proceedings at which these
issues may be addressed.
II
Because the issue will arise on remand if the commis-
sion determines that Whitaker wants and is entitled to
receive copies of the photographic images stripped of
the metadata from the DEP, we next address the plain-
tiffs’ claim that the commission improperly determined
that federal copyright law is not a ‘‘federal law’’ for
purposes of the federal law exemption set forth in § 1-
210 (a).17 We agree.
Before addressing the merits of the plaintiffs’ claim
that the commission improperly construed the federal
law exemption set forth in § 1-210 (a), it is necessary
for us to address an apparent inconsistency in the com-
mission’s decision. Specifically, the commission stated
in its decision that ‘‘the charge of $25 per image in
addition to the [fee for the] two year licensing
agreement would be an unreasonable charge and [the]
DEP is not entitled to recoup those costs by charging
the complainant for disclosure.’’ In addition, it found
that ‘‘a public agency may not contract away its statu-
tory obligations under the . . . [a]ct.’’ In support of
this conclusion, the commission cited Lieberman v.
State Board of Labor Relations, 216 Conn 253, 271,
579 A.2d 505 (1990), in which this court invalidated an
agreement that was in conflict with certain provisions
of the act. These statements would appear to suggest
that the commission concluded that the licensing
agreement was void to the extent that it authorized
Pictometry to charge the DOIT or the DEP $25 for each
copy of a photographic image provided to a member of
the public pursuant to the act. Indeed, the commission
argues on appeal that the provision of the licensing
agreement requiring the DOIT or the DEP to pay Pic-
tometry a copying fee of $25 per image is ‘‘in violation
of the [act]’’ and is therefore ‘‘null and void.’’ Moreover,
Pictometry’s appeal is premised on its belief that the
commission’s decision ‘‘will serve to abrogate [its]
rights under federal copyright law by preventing it from
placing lawful restrictions on the copying and dissemi-
nation of its copyrighted materials.’’
The trial court stated, however, that ‘‘Pictometry’s
rights and remedies for injunctive relief and damages
under 17 U.S.C. §§ 502 and 504, respectively, remain
intact. So too, its contractual rights and remedies.’’18
The commission does not dispute this conclusion on
appeal. Indeed, at oral argument before this court, the
commission stated that Pictometry would have a private
cause of action against the DOIT or the DEP for copy-
right infringement if the DEP provided copies of the
photographic images to Whitaker without paying the
$25 per image fee pursuant to the licensing agreement.19
Thus, the commission appears to have concluded
both that the act abrogates Pictometry’s rights under
federal copyright law and the licensing agreement, and
that Pictometry would be entitled to bring an action
against the DOIT or the DEP to enforce those rights if
the DEP provided copies of the photographic images
to Whitaker and failed to pay Pictometry the $25 per
image fee provided for in the licensing agreement.20
Because we are unable to reconcile these apparently
conflicting rulings, we treat them for purposes of this
opinion as alternate rulings. In other words, we assume
that the commission intended to invalidate or to limit
Pictometry’s rights under the licensing agreement and
federal copyright law when it concluded that the DEP
was required to provide copies of the photographic
images to Whitaker, and that payment of the $25 per
image copying fee to Whitaker in addition to the licens-
ing fee would be ‘‘unreasonable.’’ We also assume, how-
ever, that the commission further concluded that, even
if the act does not abrogate Pictometry’s rights under
federal copyright law, the act prohibits the DEP from
passing on to Whitaker the $25 per image copying fee
that it must pay to Pictometry.
We begin our analysis of these issues with the stan-
dard of review. ‘‘As we frequently have stated, [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. . . . We have determined,
therefore, that the traditional deference accorded to an
agency’s interpretation of a statutory term is unwar-
ranted when the construction of a statute . . . has not
previously been subjected to judicial scrutiny [or to]
. . . a governmental agency’s time-tested interpreta-
tion . . . . Consequently, an agency’s interpretation of
a statute is accorded deference when the agency’s inter-
pretation has been formally articulated and applied for
an extended period of time, and that interpretation is
reasonable.’’ (Citations omitted; internal quotation
marks omitted.) Longley v. State Employees Retirement
Commission, 284 Conn. 149, 163–64, 931 A.2d 890
(2007).
With respect to the issue before us in the present case,
the commission previously concluded in an advisory
opinion in another matter that copyrighted materials
are exempt from the copying provisions of the act under
the federal law exemption. Advisory Opinion, Freedom
of Information Commission, No. 62 (1985) p. 2, available
at http://www.state.ct.us/foi/Advisory_Opinions_&
_Dec/AO_62.htm (last visited January 18, 2013) (materi-
als ‘‘that are properly copyrighted under federal statute
are generally exempt from the copying provisions of
the [act]’’). Accordingly, because the commission’s posi-
tion in the present case that the Copyright Act is not
a ‘‘federal law’’ for purposes of the federal law exemp-
tion has not previously been subjected to judicial scru-
tiny and is not time-tested, but, indeed, is inconsistent
with the position previously taken by the commission,
our review is plenary.21 See Office of Consumer Council
v. Dept. of Public Utility Control, 252 Conn. 115, 121,
742 A.2d 1257 (2000). ‘‘In making such determinations,
we are guided by fundamental principles of statutory
construction. See General Statutes § 1-2z;22 Testa v. Ger-
essy, 286 Conn. 291, 308, 943 A.2d 1075 (2008) ([o]ur
fundamental objective is to ascertain and give effect to
the apparent intent of the legislature . . .).’’ (Internal
quotation marks omitted.) In re Matthew F., 297 Conn.
673, 688, 4 A.3d 248 (2010).
Section § 1-210 (a) provides in relevant part: ‘‘Except
as otherwise provided by any federal law . . . all
records maintained or kept on file by any public agency,
whether or not such records are required by any law
or by any rule or regulation, shall be public records
and every person shall have the right to (1) inspect
such records promptly during regular office or business
hours, (2) copy such records in accordance with subsec-
tion (g) of section 1-212, or (3) receive a copy of such
records in accordance with section 1-212. . . .’’ None
of the parties claim that the phrase ‘‘otherwise provided
by any federal law’’ either plainly and unambiguously
encompasses or excludes federal copyright law, and
we conclude that it does not. ‘‘Accordingly, we may
consider the statute’s legislative history, the circum-
stances surrounding its enactment and the legislative
policy that it was designed to implement in determining
the meaning of that phrase.’’ State v. Jenkins, 288 Conn.
610, 621, 954 A.2d 806 (2008).
This court repeatedly has held that ‘‘[t]he overarching
legislative policy of the [act] is one that favors the open
conduct of government and free public access to gov-
ernment records. . . . The sponsors of the [act] under-
stood the legislation to express the people’s sovereignty
over the agencies which serve them . . . and this court
consistently has interpreted that expression to require
diligent protection of the public’s right of access to
agency proceedings. Our construction of the [act] must
be guided by the policy favoring disclosure and excep-
tions to disclosure must be narrowly construed.’’ (Inter-
nal quotation marks omitted.) Stamford v. Freedom of
Information Commission, 241 Conn. 310, 314, 696 A.2d
321 (1997). ‘‘[T]he burden of proving the applicability
of an exemption rests upon the agency claiming it.’’
(Internal quotation marks omitted.) Commissioner of
Consumer Protection v. Freedom of Information Com-
mission, 207 Conn. 698, 701, 542 A.2d 321 (1988).
A
With these general principles in mind, we first
address the plaintiffs’ claim that the commission
improperly determined that, because the Copyright Act
is not a ‘‘federal law’’ for purposes of the federal law
exemption, to the extent that the DEP’s obligations
under the licensing agreement and federal copyright law
conflict with its obligations under the act, its obligations
under the act are controlling. This court previously has
recognized that the federal law exemption embodies
the legislature’s ‘‘willingness to defer to federal laws
barring disclosure of otherwise disclosable information
. . . .’’ Commissioner of Correction v. Freedom of
Information Commission, 307 Conn. 53, 81, 52 A.3d 636
(2012). It is reasonable to conclude that this willingness
stemmed from the legislature’s awareness of the consti-
tutional principle that, when a federal law and a state
law conflict and compliance with both laws is impossi-
ble, the federal law will preempt the state law.23 Crosby
v. National Foreign Trade Council, 530 U.S. 363, 372–
73, 120 S. Ct. 2288, 147 L. Ed. 2d 352 (2000) (‘‘[w]e will
find preemption where it is impossible for a . . . party
to comply with both state and federal law . . . and
where under the circumstances of [a] particular case,
[the challenged state law] stands as an obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress’’ [citation omitted; internal quo-
tation marks omitted]). In other words, it is reasonable
to conclude that, when the legislature enacted the fed-
eral law exemption, it intended, in the spirit of comity
and deference to the supreme law of the land, to fore-
stall any such preemption claims by providing in the
first instance that the act does not apply to public
records to the extent that any such application would
conflict with federal law.
In the present case, the commission concluded that
the DEP could not ‘‘contract away its statutory obliga-
tions under the [act]’’ by agreeing to give Pictometry
the right to determine whether and under what condi-
tions the copyrighted materials could be copied. Thus,
the commission concluded that the provision of § 1-210
(a) conferring an unconditional right on ‘‘every person
[to] . . . copy [public] records . . . or . . . [to]
receive a copy of such records’’ conflicts with the provi-
sions of 17 U.S.C. § 106 mandating that ‘‘the owner of
copyright under this title has the exclusive rights . . .
(1) to reproduce the copyrighted work in copies [and]
. . . (3) to distribute copies . . . of the copyrighted
work to the public by sale . . . or by rental, lease, or
lending,’’ or to authorize these activities.24 As we have
explained, however, the legislature intended that, to the
extent that the application of the act conflicts with
applicable federal law, the act does not apply. We con-
clude, therefore, that, to 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 fed-
eral law exemption does not entirely exempt copy-
righted public records from the act, it exempts them
from copying provisions of the act that are inconsistent
with federal copyright law.
In support of its conclusion to the contrary, the com-
mission relies on this court’s decision in Lieberman v.
State Board of Labor Relations, supra, 216 Conn 253.25
In Lieberman, this court considered the validity of an
agreement between a public employee union and a town
to destroy a union member’s employment record. This
court observed that the retention of public records is
subject to a comprehensive statutory scheme intended
primarily to protect the rights of the public under the
act. Id., 268. Under that scheme, ‘‘[o]nly certain indepen-
dent library officials have been vested by the legislature
with the authority to approve the destruction of public
records.’’ Id., 271. Accordingly, this court concluded
that ‘‘the destruction of a public employee’s discipline
record is an illegal subject of collective bargaining’’; id.,
261; and the agreement was, therefore, null and void.
Id., 271.
The commission contends that, because Pictometry’s
photographic images are public records subject to the
act, the principle that contracts that interfere with the
public’s rights under the act are null and void is equally
applicable to the provisions of the licensing agreement
placing conditions on the DEP’s use of the images, and
the provisions are therefore null and void. The short
answer to this contention is that Lieberman does not
control the present case because the public records at
issue in that case did not come within the federal law
exemption. As we have explained, the licensing
agreement does not interfere with the public’s rights
under the act because copyrighted records are exempt
under the federal exemption from the copying provi-
sions of the act that conflict with federal copyright law,
which the licensing agreement embodies.
The commission also relies on this court’s decision
in Chief of Police v. Freedom of Information Commis-
sion, 252 Conn. 377, 746 A.2d 1264 (2000), to support
its position. In that case, the commission ordered the
plaintiff to disclose certain records that were the sub-
ject of discovery proceedings in a separate federal
action, to which the plaintiff was also a party. Id., 383.
The plaintiff contended on appeal that the records were
exempt under the federal law exemption ‘‘because the
Federal Rules of Civil Procedure already provide a legal
process for [their] disclosure . . . .’’ (Internal quota-
tion marks omitted.) Id., 399. This court rejected that
claim. In doing so, this court stated that ‘‘linking a total
federal exemption from the disclosure provisions of the
act with a parallel reference to state statutes strongly
suggests that the reference to ‘federal law’ was not
intended to encompass federal litigation engendered
issues of discovery. It suggests, instead, a reference to
federal and state laws that, by their terms, provide for
confidentiality of records or some other similar shield
from public disclosure.’’ Id. The court then emphasized
that ‘‘the only references in the entire legislative history
of the act to the language in question are consistent
with the suggestion that it was intended to refer to
other federal and state laws that by their terms shield
specific information from disclosure.26 There is nothing
therein, therefore, that suggests that the legislature
intended this very general language to encompass the
kinds of individualized and possibly hypothetical deter-
minations under federal discovery rules that the plain-
tiff’s argument would suggest.’’ Id., 399–400.
The commission contends that Chief of Police sup-
ports the proposition that the federal law exemption
applies only to federal statutes that, by their terms, bar
the disclosure of certain public records, not to a federal
statute, like the Copyright Act, that permits disclosure,
but prohibits or places limits on the copying of public
records subject to that law. We disagree. In Chief of
Police, this court did not distinguish federal laws that
exempt documents from the right to disclosure under
the act from federal laws that exempt documents from
the unconditional right to copy them. Rather, this court
distinguished between federal laws that, by their terms,
shield certain general types of documents from disclo-
sure under freedom of information laws, such as laws
barring the disclosure of i