******************************************************The ‘‘officially released’’ date that appears near the

beginning of each opinion is the date the opinion willbe published in the Connecticut Law Journal or thedate it was released as a slip opinion. The operativedate for the beginning of all time periods for filingpostopinion motions and petitions for certification isthe ‘‘officially released’’ date appearing in the opinion.In no event will any such motions be accepted beforethe ‘‘officially released’’ date.

All opinions are subject to modification and technicalcorrection prior to official publication in the Connecti-cut Reports and Connecticut Appellate Reports. In theevent of discrepancies between the electronic versionof an opinion and the print version appearing in theConnecticut Law Journal and subsequently in the Con-necticut Reports or Connecticut Appellate Reports, thelatest print version is to be considered authoritative.

The syllabus and procedural history accompanyingthe opinion as it appears on the Commission on OfficialLegal Publications Electronic Bulletin Board Serviceand in the Connecticut Law Journal and bound volumesof official reports are copyrighted by the Secretary ofthe State, State of Connecticut, and may not be repro-duced and distributed without the express written per-mission of the Commission on Official LegalPublications, Judicial Branch, State of Connecticut.******************************************************

PICTOMETRY INTERNATIONAL CORPORATION v.FREEDOM OF INFORMATION

COMMISSION ET AL.(SC 18724)

DEPARTMENT OF ENVIRONMENTAL PROTECTIONv. 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 wereEmily 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, withwhom, on the brief, were George Jepsen, attorney gen-eral, and Kimberly Massicotte, assistant attorney gen-eral, for the appellant in Docket No. SC 18725 (plaintiffin 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 inthese 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 theFreedom 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 thefirst case, Pictometry International Corporation (Pic-tometry), contracted with the department of informa-tion technology (DOIT) to license the plaintiff in thesecond case, the department of environmental protec-tion (DEP),2 to use certain computerized aerial photo-graphic images of sites within the state and associateddata that are owned and copyrighted by Pictometry.The defendant Stephen Whitaker requested that theDEP provide him with, among other things, copies ofthe computerized images and associated data. The DEPresponded that the images were not public records sub-ject to the act because, as copyrighted materials, theyfell 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 alsostated that the disclosure of the images to Whitakerwould be subject to a determination by the departmentof public works (DPW) that disclosure would not posea public safety risk pursuant to § 1-210 (b) (19).3

Whitaker then filed a complaint against the DEP withthe named defendant, the freedom of information com-mission (commission). The commission concluded that,pursuant to the act, the DEP was required to provideWhitaker with copies of the photographic images ‘‘ ‘atits minimum cost,’ ’’ but was not required to providethe associated data. It further concluded that disclosureof the images without the associated data would notpose a public safety risk. Pictometry and the DEP thenfiled separate appeals from the commission’s decisionin 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, becausethe commission improperly ordered the DEP to providecopies of the images without first determining whetherWhitaker wanted copies of the images stripped of theassociated data, whether it was feasible for the DEPto provide such copies and whether doing so wouldpose a public safety risk, the matter must be remandedto the commission for further proceedings. We furtherconclude that, if the commission determines that Whi-taker wants and is entitled to copies of the photographicimages, the copying of the photographic images must bedone in compliance with the provisions of the licensingagreement and federal copyright law, including pay-ment by Whitaker of the $25 per image fee.

The record reveals the following undisputed factsand 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 Pictometryand are protected by the federal Copyright Act, 17 U.S.C.§ 101 et seq.7 Pictometry’s processes also generatemetadata, or data that describes data, at the momentthat a photographic image is taken. These metadatainclude the time that the image was captured, the angleat which it was captured and the latitude, longitudeand altitude of the camera. The metadata is enteredinto 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 contractwith the DOIT pursuant to which Pictometry grantedthe DOIT and other authorized state agencies, includingthe DEP, a license to use its software, metadata andimages for governmental purposes (licensingagreement) in exchange for a fee of $793,000. The DOITalso agreed that licensed users would not reproduce anyof the licensed images for use by persons not covered bythe licensing agreement unless the licensed user paidPictometry a fee of $25 per image, which fee the licenseduser was authorized to pass on to the person requestingthe copy.8

On July 5, 2007, Whitaker sent a freedom of informa-tion request by e-mail to the DEP, requesting copies ofall contracts with Pictometry, all imagery provided tothe DEP by Pictometry and any software required toview the Pictometry images. In response, the DEP sentan e-mail to Whitaker to which it attached a copy of thelicensing 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-mailthat the requested images were exempt from disclosureunder the act pursuant to the federal law exemptionbecause they were protected by federal copyright law.The DEP also stated that Whitaker could obtain copiesof the images if he paid the $25 per image fee providedfor in the licensing agreement. Because the DEP had139,148 oblique images and 245,806 orthographicimages on file, however, it suggested that Whitakermight want to narrow his request to images of certaingeographic areas. Finally, the DEP stated that no imageswould 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 commissionclaiming that the DEP had violated the act by refusingto provide copies of the photographic images and meta-

data. Pictometry filed a petition to intervene in thematter, which the commission granted.

After Whitaker filed his complaint with the commis-sion, the DEP sent a letter to the DPW asking whetherrelease 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 tothe letter on January 24, 2008, indicating that Pictome-try’s proprietary software would enable a person tomanipulate an image ‘‘to include displaying a locationfrom all four directions . . . and measuring the height,width and length of features such as buildings, bridges,roads, towers, trees and walls.’’ The commissioner ofpublic works also stated that ‘‘the exemption of specificimages itself may be a security risk. By redacting certainexempt images of important assets, we essentially pro-vide a road map to those assets.’’10 The commissionerof public works directed the DEP ‘‘to withhold fromdisclosure Pictometry’s software and [geographic infor-mation system] data of critical infrastructure and keyresources that are not available to the public’’ becausedisclosure would present a risk of harm to the stateand its citizens.11

The commission conducted a hearing on Whitaker’scomplaint against the DEP on January 31, 2008. There-after, Whitaker filed a complaint against the DPW anda motion to consolidate the proceedings on that com-plaint with the pending proceeding against the DEP.The commission treated the complaint against the DPWas a motion to join the DPW as a respondent in theproceeding 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 withinthe meaning of § 1-210 (b) (5) (A) and, therefore, wereexempt from the act. It also concluded that the Copy-right Act was not a ‘‘federal law’’ for purposes of thefederal law exemption because copyright law does notrequire that copyrighted material be treated as confi-dential. In addition, the commission concluded that,because the DPW’s determination that disclosure ofsome of the images could pose a safety risk was basedon the assumption that the metadata would also bedisclosed, and because the images alone revealed noth-ing that could not be observed by visible inspection ora photograph of a site, disclosure of the images did notpose a safety risk for purposes of the exemption setforth in § 1-210 (b) (19). Finally, the commission con-cluded that ‘‘the charge of $25 per image in addition tothe approximately $700,000 two year licensingagreement would be an unreasonable charge and [thatthe] 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 copiesof the images, without any associated metadata or soft-ware, at ‘‘its minimum cost.’’

Pictometry, the DEP and the DPW then filed separateappeals from the commission’s decision in the trialcourt, which appeals were ultimately consolidated fortrial. The trial court concluded that the commission’sdetermination that the disclosure of the images to Whi-taker would not pose a safety risk was supported bythe evidence; the commission had properly determinedthat federal copyright law is not encompassed by thefederal law exemption because it does not shield copy-righted material from disclosure;12 and the commissionproperly 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 obligationsunder the act. Accordingly, the trial court dismissedthe appeals.

Pictometry and the DEP then filed these appeals.Pictometry claims that the commission improperlydetermined that the Copyright Act is not a ‘‘federal law’’for purposes of the federal law exemption. The DEPalso makes this claim, and further contends that thecommission improperly reconfigured Whitaker’srequest to apply only to the photographic images,stripped of the associated metadata, without providingan opportunity for the DEP and Pictometry to respondto the request as reconfigured or to determine whetherthe release of the images stripped of the metadata wouldpose a safety risk. The commission disputes theseclaims, and also contends that the DEP lacks standingto challenge the trial court’s determination that thecommission properly concluded that disclosure of theimages would not pose a safety risk because the DPWdid not appeal from that determination.

I

We first address the DEP’s claim that the commissionimproperly ‘‘reconfigured’’ Whitaker’s request when itordered the DEP to provide Whitaker with copies ofthe photographic images licensed for use by the DEP,stripped of any associated metadata. The DEP contendsthat the commission’s order constituted an abuse ofdiscretion because: (1) it is unclear whether Whitakereven wants the photographic images if they are strippedof any associated metadata; (2) the DEP has had noopportunity to determine whether it is feasible to stripthe photographic images of the metadata; and (3) theDEP has had no opportunity to determine whether dis-closure of the photographic images stripped of themetadata would pose a significant safety risk. We agreewith the DEP.

We first address the DEP’s claim that the commissionimproperly 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 usethe records in that format. The following additionalfacts are relevant to our resolution of this claim. In hisinitial request to the DEP, Whitaker requested ‘‘[a]llcontracts with [the] DEP and Pictometry . . . for Pic-tometry services, data and software. All Pictometryimagery and any software required to view the Pictome-try images. Any DEP documents demonstrating compli-ance with [General Statutes § 1-211 (c)] . . . .’’ At theJanuary 31, 2008 hearing before the commission, Whi-taker was asked whether he was requesting that thecommission order the DEP to give him the metadata.He responded: ‘‘Yes, [the imagery is] useless withoutit. The imagery, not knowing where it is, is a jigsawpuzzle with no matching curves.’’ Whitaker also statedat a September 3, 2008 hearing before the commission,which was conducted after the commission had issueda proposed decision on the matter, that ‘‘I . . . don’tlike having images [that] I can’t effectively use withoutlicensing proprietary and expensive software from Pic-tometry.’’ He further stated that ‘‘[t]he metadata whichhas been found to be proprietary in this proposal fordecision is the data which actually references wherethe camera was in relation to the [object] on the ground,which direction it was facing, which actually makes itpossible to properly identify the image. . . . [W]ithoutthe metadata being included with the imagery, it’s actu-ally built into the imagery, it wouldn’t be possible todevelop a different viewer to use these.’’ Later duringthe hearing, Whitaker stated that ‘‘if you give me 400,000images with no ability to go anywhere, or find whichimage relates to which spot on the land, it’s useless.’’

General Statutes § 1-206 (b) (2) provides in relevantpart: ‘‘In any appeal to the [commission] under subdivi-sion (1) of this subsection or subsection (c) of thissection, the commission may confirm the action of theagency or order the agency to provide relief that thecommission, in its discretion, believes appropriate torectify the denial of any right conferred by the Freedomof Information Act. . . .’’ Accordingly, we review thecommission’s ruling that the DEP must provide Whi-taker with copies of the photographic images strippedof 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 agencywhich maintains public records in a computer storagesystem shall provide, to any person making a requestpursuant to the Freedom of Information Act, a copy ofany nonexempt data contained in such records, prop-erly identified, on paper, disk, tape or any other elec-tronic storage device or medium requested by theperson, if the agency can reasonably make any suchcopy or have any such copy made. . . .’’ (Emphasis

added.) The commission contends that this statuteclearly authorizes it to deny a portion of a request forpublic records if some of the requested records areexempt.

The commission also relies on this court’s decisionin Hartford Courant Co. v. Freedom of InformationCommission, 261 Conn. 86, 801 A.2d 759 (2002), forthe proposition that it can order a public agency toseparate exempt computerized data from nonexemptdata and to produce only the nonexempt data. See id.,94–95 (when person submits request pursuant to § 1-211 for nonexempt data contained in computerizedrecord that contains both exempt and nonexempt data,‘‘the disclosing agency must comply with such a requesteither by developing a program or contracting with anoutside entity to develop a program’’ to separate exemptdata from nonexempt data).

We conclude that neither § 1-211 nor our decisionin Hartford Courant Co. supports the commission’sposition. Hartford Courant Co. is distinguishable fromthe present case because, in that case, the plaintiff hadrequested ‘‘an electronic copy of the public portion ofall of the [department of public safety’s] criminal historyrecords for all of the adults in those records.’’ (Empha-sis added.) Id., 89. Thus, the plaintiff’s request wasclearly limited to nonexempt records. In contrast, inthe present case, Whitaker requested ‘‘[a]ll Pictometryimagery and any software required to view the Pictome-try images.’’ During the course of the proceedings onWhitaker’s complaint, it became clear that Whitaker’srequest for ‘‘Pictometry imagery’’ encompassed themetadata embedded in the computerized images. It alsobecame clear that he believed that the images strippedof the associated metadata would be useless to him.Thus, unlike in Hartford Courant Co., the record inthe present case supports the conclusion that Whitakerrequested both exempt information and nonexemptinformation and that the requests were inextricablyintertwined because the copies of the nonexemptimages would be worthless to him without access tothe exempt metadata. We agree with the propositionthat, under some circumstances, the commission hasthe discretion to redact exempt information from other-wise public records requested pursuant to the act, andthat it can order a party to produce computerized non-exempt records in a format other than the format inwhich they are maintained by the public agency. Underthe facts of this case, however, we conclude that it wasan abuse of discretion for the commission to requirethe DEP to provide copies of approximately 400,000photographic images stripped of the associated meta-data to Whitaker in the absence of any evidence thathe wants them or that he has any use for them in theformat provided.

The DEP also claims that the commission improperly

ordered it to provide copies of the photographic imageswithout providing an opportunity for the DEP to deter-mine whether it has the technical capability to strip themetadata from the computerized photographic imagesin its possession. The following additional facts arerelevant to our resolution of this claim. At an August27, 2008 hearing before the commission, one of thecommissioners stated that ‘‘the testimony was that the[DEP] couldn’t strip out . . . all that data from thevisual image and provide it to . . . Whitaker, only Pic-tometry could do that.’’ Counsel for Pictometry con-firmed that that was the case. When the commissioninquired what it would cost to strip the metadata fromthe images, counsel for Pictometry responded that hedid not know. A member of the commission then indi-cated that, if Pictometry were required to produce theimages ‘‘all on one disk,’’ the cost ‘‘would be the costof doing the disk.’’ The chairperson of the commissionthen asked Whitaker in what format the images couldbe produced. Whitaker responded that he believed thatstripping the images of the metadata was inappropriatebecause it might require the DEP ‘‘to contract backwith Pictometry for tens of thousands of dollars to stripout the metadata, and you’re going to have created sucha high cost hurdle that none of these records are evergoing to be disclosed.’’ The commission did not respondto this argument, however, and never made a findingas to whether or how the DEP could produce the copies.

Thus, there is no evidence in the record that the DEPhas the capability to provide copies of the photographicimages stripped of the metadata. Indeed, the recordsupports the conclusion that only Pictometry would beable to do so. Accordingly, it may be impossible forthe DEP to comply with the commission’s order.15 Weconclude, therefore, that the commission abused itsdiscretion by ordering the DEP to produce copies ofthe images stripped of the metadata without providingan opportunity for the parties to determine whether orhow the DEP could comply with the order.

Finally, we address the DEP’s claim that the commis-sion improperly ordered it to provide Whitaker withcopies of the photographic images stripped of associ-ated metadata without providing an opportunity for theDEP and the DPW to determine whether doing so wouldpose a safety risk for purposes of § 1-210 (b) (19).16

That statute provides that, if the commissioner of publicworks, in consultation with the chief executive officerof a state agency, finds reasonable grounds to believethat disclosure of public records may result in a safetyrisk ‘‘of harm to any person, any government-owned orleased institution or facility or any fixture or appurte-nance and equipment attached to, or contained in, suchinstitution 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 haveindicated in this opinion, Whitaker’s request encom-

passed both the photographic images and the associ-ated metadata, and the DPW’s assessment of the safetyrisk was premised on the assumption that both themetadata and software were subject to disclosure.Accordingly, the DPW did not have an opportunity toconsider whether the disclosure of the photographicimages stripped of metadata would pose a safety risk.Under § 1-210 (b) (19), this safety determination is tobe made by the DPW in consultation with the head ofthe relevant state agency, not by the commission. Weconclude, therefore, that the commission abused itsdiscretion by ordering the DEP to provide copies of thephotographic images stripped of the associated meta-data to Whitaker without first providing the DEP andthe DPW with an opportunity to determine whethertheir disclosure would pose a safety risk. Accordingly,we conclude that the matter must be remanded to thecommission for further proceedings at which theseissues may be addressed.

II

Because the issue will arise on remand if the commis-sion determines that Whitaker wants and is entitled toreceive copies of the photographic images stripped ofthe metadata from the DEP, we next address the plain-tiffs’ claim that the commission improperly determinedthat federal copyright law is not a ‘‘federal law’’ forpurposes of the federal law exemption set forth in § 1-210 (a).17 We agree.

Before addressing the merits of the plaintiffs’ claimthat the commission improperly construed the federallaw exemption set forth in § 1-210 (a), it is necessaryfor us to address an apparent inconsistency in the com-mission’s decision. Specifically, the commission statedin its decision that ‘‘the charge of $25 per image inaddition to the [fee for the] two year licensingagreement would be an unreasonable charge and [the]DEP is not entitled to recoup those costs by chargingthe complainant for disclosure.’’ In addition, it foundthat ‘‘a public agency may not contract away its statu-tory obligations under the . . . [a]ct.’’ In support ofthis 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 anagreement that was in conflict with certain provisionsof the act. These statements would appear to suggestthat the commission concluded that the licensingagreement was void to the extent that it authorizedPictometry to charge the DOIT or the DEP $25 for eachcopy of a photographic image provided to a member ofthe public pursuant to the act. Indeed, the commissionargues on appeal that the provision of the licensingagreement requiring the DOIT or the DEP to pay Pic-tometry a copying fee of $25 per image is ‘‘in violationof 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 fromplacing lawful restrictions on the copying and dissemi-nation of its copyrighted materials.’’

The trial court stated, however, that ‘‘Pictometry’srights and remedies for injunctive relief and damagesunder 17 U.S.C. §§ 502 and 504, respectively, remainintact. So too, its contractual rights and remedies.’’18

The commission does not dispute this conclusion onappeal. Indeed, at oral argument before this court, thecommission stated that Pictometry would have a privatecause of action against the DOIT or the DEP for copy-right infringement if the DEP provided copies of thephotographic images to Whitaker without paying the$25 per image fee pursuant to the licensing agreement.19

Thus, the commission appears to have concludedboth that the act abrogates Pictometry’s rights underfederal copyright law and the licensing agreement, andthat Pictometry would be entitled to bring an actionagainst the DOIT or the DEP to enforce those rights ifthe DEP provided copies of the photographic imagesto Whitaker and failed to pay Pictometry the $25 perimage fee provided for in the licensing agreement.20

Because we are unable to reconcile these apparentlyconflicting rulings, we treat them for purposes of thisopinion as alternate rulings. In other words, we assumethat the commission intended to invalidate or to limitPictometry’s rights under the licensing agreement andfederal copyright law when it concluded that the DEPwas required to provide copies of the photographicimages to Whitaker, and that payment of the $25 perimage 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, evenif the act does not abrogate Pictometry’s rights underfederal copyright law, the act prohibits the DEP frompassing on to Whitaker the $25 per image copying feethat it must pay to Pictometry.

We begin our analysis of these issues with the stan-dard of review. ‘‘As we frequently have stated, [a]nagency’s factual and discretionary determinations areto be accorded considerable weight by the courts. . . .Cases that present pure questions of law, however,invoke a broader standard of review than is ordinarilyinvolved in deciding whether, in light of the evidence,the agency has acted unreasonably, arbitrarily, illegallyor in abuse of its discretion. . . . We have determined,therefore, that the traditional deference accorded to anagency’s interpretation of a statutory term is unwar-ranted when the construction of a statute . . . has notpreviously been subjected to judicial scrutiny [or to]. . . a governmental agency’s time-tested interpreta-tion . . . . Consequently, an agency’s interpretation ofa 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 isreasonable.’’ (Citations omitted; internal quotationmarks omitted.) Longley v. State Employees RetirementCommission, 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 advisoryopinion in another matter that copyrighted materialsare exempt from the copying provisions of the act underthe federal law exemption. Advisory Opinion, Freedomof Information Commission, No. 62 (1985) p. 2, availableat 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 statuteare generally exempt from the copying provisions ofthe [act]’’). Accordingly, because the commission’s posi-tion in the present case that the Copyright Act is nota ‘‘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 inconsistentwith the position previously taken by the commission,our review is plenary.21 See Office of Consumer Councilv. 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 statutoryconstruction. See General Statutes § 1-2z;22 Testa v. Ger-essy, 286 Conn. 291, 308, 943 A.2d 1075 (2008) ([o]urfundamental objective is to ascertain and give effect tothe apparent intent of the legislature . . .).’’ (Internalquotation marks omitted.) In re Matthew F., 297 Conn.673, 688, 4 A.3d 248 (2010).

Section § 1-210 (a) provides in relevant part: ‘‘Exceptas otherwise provided by any federal law . . . allrecords maintained or kept on file by any public agency,whether or not such records are required by any lawor by any rule or regulation, shall be public recordsand every person shall have the right to (1) inspectsuch records promptly during regular office or businesshours, (2) copy such records in accordance with subsec-tion (g) of section 1-212, or (3) receive a copy of suchrecords in accordance with section 1-212. . . .’’ Noneof the parties claim that the phrase ‘‘otherwise providedby any federal law’’ either plainly and unambiguouslyencompasses or excludes federal copyright law, andwe conclude that it does not. ‘‘Accordingly, we mayconsider the statute’s legislative history, the circum-stances surrounding its enactment and the legislativepolicy that it was designed to implement in determiningthe meaning of that phrase.’’ State v. Jenkins, 288 Conn.610, 621, 954 A.2d 806 (2008).

This court repeatedly has held that ‘‘[t]he overarchinglegislative policy of the [act] is one that favors the openconduct 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 courtconsistently has interpreted that expression to requirediligent protection of the public’s right of access toagency proceedings. Our construction of the [act] mustbe guided by the policy favoring disclosure and excep-tions to disclosure must be narrowly construed.’’ (Inter-nal quotation marks omitted.) Stamford v. Freedom ofInformation Commission, 241 Conn. 310, 314, 696 A.2d321 (1997). ‘‘[T]he burden of proving the applicabilityof an exemption rests upon the agency claiming it.’’(Internal quotation marks omitted.) Commissioner ofConsumer Protection v. Freedom of Information Com-mission, 207 Conn. 698, 701, 542 A.2d 321 (1988).

A

With these general principles in mind, we firstaddress the plaintiffs’ claim that the commissionimproperly determined that, because the Copyright Actis not a ‘‘federal law’’ for purposes of the federal lawexemption, to the extent that the DEP’s obligationsunder the licensing agreement and federal copyright lawconflict with its obligations under the act, its obligationsunder the act are controlling. This court previously hasrecognized that the federal law exemption embodiesthe legislature’s ‘‘willingness to defer to federal lawsbarring disclosure of otherwise disclosable information. . . .’’ Commissioner of Correction v. Freedom ofInformation Commission, 307 Conn. 53, 81, 52 A.3d 636(2012). It is reasonable to conclude that this willingnessstemmed from the legislature’s awareness of the consti-tutional principle that, when a federal law and a statelaw conflict and compliance with both laws is impossi-ble, the federal law will preempt the state law.23 Crosbyv. National Foreign Trade Council, 530 U.S. 363, 372–73, 120 S. Ct. 2288, 147 L. Ed. 2d 352 (2000) (‘‘[w]e willfind preemption where it is impossible for a . . . partyto comply with both state and federal law . . . andwhere under the circumstances of [a] particular case,[the challenged state law] stands as an obstacle to theaccomplishment and execution of the full purposes andobjectives of Congress’’ [citation omitted; internal quo-tation marks omitted]). In other words, it is reasonableto conclude that, when the legislature enacted the fed-eral law exemption, it intended, in the spirit of comityand deference to the supreme law of the land, to fore-stall any such preemption claims by providing in thefirst instance that the act does not apply to publicrecords to the extent that any such application wouldconflict with federal law.

In the present case, the commission concluded thatthe DEP could not ‘‘contract away its statutory obliga-tions under the [act]’’ by agreeing to give Pictometrythe 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 ofcopyright under this title has the exclusive rights . . .(1) to reproduce the copyrighted work in copies [and]. . . (3) to distribute copies . . . of the copyrightedwork to the public by sale . . . or by rental, lease, orlending,’’ or to authorize these activities.24 As we haveexplained, however, the legislature intended that, to theextent that the application of the act conflicts withapplicable federal law, the act does not apply. We con-clude, therefore, that, to the extent that the act and theCopyright Act impose conflicting legal obligations, theCopyright Act is a ‘‘federal law’’ for purposes of thefederal law exemption. Accordingly, although the fed-eral law exemption does not entirely exempt copy-righted public records from the act, it exempts themfrom copying provisions of the act that are inconsistentwith 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 anagreement between a public employee union and a townto destroy a union member’s employment record. Thiscourt observed that the retention of public records issubject to a comprehensive statutory scheme intendedprimarily to protect the rights of the public under theact. Id., 268. Under that scheme, ‘‘[o]nly certain indepen-dent library officials have been vested by the legislaturewith the authority to approve the destruction of publicrecords.’’ Id., 271. Accordingly, this court concludedthat ‘‘the destruction of a public employee’s disciplinerecord 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’sphotographic images are public records subject to theact, the principle that contracts that interfere with thepublic’s rights under the act are null and void is equallyapplicable to the provisions of the licensing agreementplacing conditions on the DEP’s use of the images, andthe provisions are therefore null and void. The shortanswer to this contention is that Lieberman does notcontrol the present case because the public records atissue in that case did not come within the federal lawexemption. As we have explained, the licensingagreement does not interfere with the public’s rightsunder the act because copyrighted records are exemptunder 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 decisionin 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 theplaintiff to disclose certain records that were the sub-ject of discovery proceedings in a separate federalaction, to which the plaintiff was also a party. Id., 383.The plaintiff contended on appeal that the records wereexempt under the federal law exemption ‘‘because theFederal Rules of Civil Procedure already provide a legalprocess for [their] disclosure . . . .’’ (Internal quota-tion marks omitted.) Id., 399. This court rejected thatclaim. In doing so, this court stated that ‘‘linking a totalfederal exemption from the disclosure provisions of theact with a parallel reference to state statutes stronglysuggests that the reference to ‘federal law’ was notintended to encompass federal litigation engenderedissues of discovery. It suggests, instead, a reference tofederal and state laws that, by their terms, provide forconfidentiality of records or some other similar shieldfrom public disclosure.’’ Id. The court then emphasizedthat ‘‘the only references in the entire legislative historyof the act to the language in question are consistentwith the suggestion that it was intended to refer toother federal and state laws that by their terms shieldspecific information from disclosure.26 There is nothingtherein, therefore, that suggests that the legislatureintended this very general language to encompass thekinds 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 exemptionapplies only to federal statutes that, by their terms, barthe disclosure of certain public records, not to a federalstatute, like the Copyright Act, that permits disclosure,but prohibits or places limits on the copying of publicrecords subject to that law. We disagree. In Chief ofPolice, this court did not distinguish federal laws thatexempt documents from the right to disclosure underthe act from federal laws that exempt documents fromthe unconditional right to copy them. Rather, this courtdistinguished between federal laws that, by their terms,shield certain general types of documents from disclo-sure under freedom of information laws, such as lawsbarring the disclosure of individual tax returns; seefootnote 26 of this opinion; and federal laws that areused to make ‘‘individualized and possibly hypotheticaldeterminations’’ as to whether certain documents aredisclosable, such as federal discovery rules. Chief ofPolice v. Freedom of Information Commission, supra,252 Conn., 399–400. Accordingly, Chief of Police doesnot support the proposition that a federal law, like theCopyright Act, that, by its terms, shields a certain classof documents from the public’s unconditional rightunder the act to copy public records, does not fall withinthe federal law exemption.27

The commission also relies on a number of casesfrom other jurisdictions in which the court has consid-

ered the relationship between freedom of informationlaws and federal copyright law. The commission firstcites the decision of the United States District Courtfor the District of Columbia in Venetian Casino Resortv. Equal Employment Opportunity Commission, 453F. Sup. 2d 157 (D.D.C. 2006). The plaintiff in that caseclaimed, inter alia, that the defendant’s internal policyof releasing documents obtained during the course ofproceedings before the defendant violated federal copy-right law. Id., 160. The court held that ‘‘while the Copy-right Act proscribes infringement of copyrightedmaterial, nothing in the [Copyright] Act requires confi-dential treatment by the government of copyrightedmaterial. The [Copyright] Act provides an express rem-edy for alleged copyright violations: a private right ofaction for infringement. 17 U.S.C. § 501. Nothing in the[Copyright] Act requires the establishment of particularinternal agency procedures. As such, the Copyright Actaffords [the plaintiff] no legal basis to challenge the[defendant’s] disclosure policy.’’ Venetian CasinoResort v. Equal Employment Opportunity Commis-sion, supra, 166.

The District Court’s decision was ultimately reversed,however, by the United States Court of Appeals for theDistrict of Columbia Circuit. Venetian Casino Resort,LLC v. Equal Employment Opportunity Commission,530 F.3d 925 (D.C. Cir. 2008). Although the commissioncontends that the Court of Appeals’ decision did notaffect the portion of the District Court’s decision onwhich it relies, we are not persuaded. The United StatesCourt of Appeals stated that the District Court’s state-ments concerning the Copyright Act were ‘‘true but notdispositive because the [Copyright] Act does entitle acopyright holder to an injunction barring infringementof its copyright. 17 U.S.C. § 502. Disclosure is not an actof infringement but reproduction is.’’ Venetian CasinoResort, LLC v. Equal Employment Opportunity Com-mission, supra, 935 n.4. Thus, although the Court ofAppeals concluded that the plaintiff’s copyright claimwas not ripe for adjudication because the record didnot reveal the precise nature of the materials that weresubject to disclosure under the defendant’s policy; id.;the court clearly believed that the defendant would notbe entitled to reproduce copyrighted documents in amanner that would be inconsistent with the copyrightholder’s rights under federal copyright law. Accord-ingly, even if it is assumed that the reasoning of thiscase involving the validity of a federal agency’s internaldisclosure policy is somehow applicable to the act, theUnited States Court of Appeals’ decision does not sup-port the commission’s position that a public agencymay ignore the provisions of federal copyright law whendealing with copyrighted public records. Rather, it sup-ports the conclusion that the questions of whether andunder what conditions a public agency may reproducecopyrighted public records must be determined under

federal copyright law.

The commission’s reliance on the court’s statementin Weisberg v. United States Dept. of Justice, 631 F.2d824, 825 (D.C. Cir. 1980), that ‘‘the mere existence ofcopyright, by itself, does not automatically render [thefederal Freedom of Information Act] inapplicable tomaterials that are clearly agency records’’ is also mis-placed. After making this statement, the court in Weis-berg stated that ‘‘[d]eciding that copyrighted materialsare subject to [the federal Freedom of Information Act]. . . does not resolve whether any particular . . .request should be granted, and if so, under what terms.’’Id., 828. The court ultimately recognized that federalcopyright law could impose limits on the use of copy-righted public records that are subject to the federalFreedom of Information Act.28 Id., 829–30; see also foot-note 18 of this opinion.

In addition, the commission cites a number of opin-ions issued by various public officials in other jurisdic-tions that have concluded that copyrighted materialsare not exempt from freedom of information laws. Oneadvisory opinion concluded that, if a private entitylicensed its copyrighted documents for use by a publicagency, the public agency ‘‘would ‘own’ them and . . .they would be [public] ‘property’ ’’ subject to all of theprovisions of state freedom of information law.29 Advi-sory Opinion, Committee on Open Government, NewYork Dept. of State, No. FOIL-AO-14966 (October 26,2004) p. 1, available at http://docs.dos.ny.gov/coog/ftext/f14966.htm (last visited January 18, 2013). Thatadvisory opinion further concluded that, ‘‘once a recordis maintained by or for an agency, there can be norestriction on its use.’’ Id., p. 2. The opinion does notindicate whether the New York law at issue containeda federal law exemption analogous to that containedin § 1-210 (a), however, and it also does not addressthe questions of whether and how principles of federalpreemption might affect the application of the NewYork law to copyrighted documents. Accordingly, wefind the advisory opinion of little persuasive value. Noneof the other opinions relied on by the commissionexpressly states that federal copyright law cannotimpose conditions or restrictions on the use of copy-righted public records.30 Indeed, a number of the opin-ions expressly recognize that federal copyright law maypreempt open records provisions that otherwise wouldconfer an unconditional right to copy public records.Letter of James L. Coggeshall, Assistant Attorney Gen-eral, Texas Office of the Attorney General, OpenRecords Division, No. OR2006-07559 (July 14, 2006),available at Https://www.oag.state.tx.us/opinions/open-records/50abbott/orl/2006/htm/or200607559.htm (lastvisited January 18, 2013) (‘‘[a] custodian of publicrecords must comply with the copyright law and is notrequired to furnish copies of records that are copy-righted’’); Opinions, Va. Atty. Gen. No. 1998 #005 (Sep-

tember 23, 1998) p. 3, available at http://www.opengovva.org/component/vcogopins/index.php?option+com_content&view=article&id=443&Itemid=4 (last visited January 18, 2013) (copyrightlaw does not preclude copying of copyrighted publicrecords if copyright owner has given consent); UnitedStates Dept. of Justice, Office of Information PolicyGuidance, FOIA Update, Vol. IV, No. 4 (1983), p. 3,available at http://www.usdoj.gov/oip/foia_updates/Vol_IV_4/page3.htm (last visited January 18, 2013)(competitive harm exemption to federal Freedom ofInformation Act ‘‘should protect [copyrighted] materi-als in the same instances in which copyright infringe-ment would be found’’); Memorandum of Hugh R. Jones,Staff Attorney, Hawaii Dept. of the Attorney General,Office of Information Practices (June 12, 1990) p. 8,available at http://www.state.hi.us/oip/opinionletters/opinion%2090-20.PDF (last visited January 18, 2013)(‘‘[t]wo attorney general opinions from other states. . . have concluded that the federal Copyright Act. . . preempts state open records laws which, like [theHawaii law], permit the duplication of public recordsby members of the public’’). Accordingly, these opinionscited by the commission do not support its position.

Finally, the commission contends that, even if theact does not override federal copyright law, providingcopies of Pictometry’s copyrighted photographicimages to Whitaker ‘‘may be’’ a fair use of the materialsunder federal copyright law.31 Neither the commissionnor this court, however, has jurisdiction to determinewhether a particular use of copyrighted materialsinfringes on the copyright holder’s rights under federalcopyright law or, instead, constitutes a fair use of thematerials. Rather, that determination must be made infederal court.32 Penguin Group (USA), Inc. v. AmericanBuddha, 640 F.3d 497, 498 n.3 (2d Cir. 2011) (federalcourts have ‘‘original and exclusive jurisdiction overactions alleging copyright infringement pursuant to 17U.S.C. § 501; see 28 U.S.C. § 1338 (a)’’33 [internal quota-tion marks omitted]). We conclude, therefore, that thecommission improperly determined that federal copy-right law is not a ‘‘federal law’’ for purposes of thefederal law exemption and, therefore, places no limitsor conditions on an agency’s authority under the act toprovide the public with copies of copyrighted publicrecords.

B

We next consider the commission’s alternative rulingthat, even if the DEP is bound by federal copyright lawand must comply with the provision of the licensingagreement requiring it to pay Pictometry $25 for eachcopy of a photographic image, the act prohibits theDEP from passing that fee on to Whitaker. The DEPcontends that, to the contrary, the act expressly autho-rizes it to charge Whitaker for the actual costs of copy-

ing computerized public records. Although we disagreewith the DEP’s reasoning, we conclude that the DEPis not barred from passing on to Whitaker the $25 perimage fee that it is required to pay Pictometry to repro-duce the copyrighted photographic images.

Both the commission and the DEP rely on GeneralStatutes §§ 1-211 (a) and 1-212 (b) in support of theirrespective positions. Section 1-211 (a) provides in rele-vant part: ‘‘Except as otherwise provided by state stat-ute, the cost for providing a copy of [a public recordmaintained in a computer storage system] shall be inaccordance with the provisions of section 1-212.’’ Gen-eral Statutes § 1-212 (b) provides in relevant part: ‘‘Thefee for any copy provided in accordance with subsec-tion (a) of section 1-211 shall not exceed the cost thereofto the public agency. In determining such costs for acopy . . . an agency may include . . . (3) [t]he actualcost of the storage devices or media provided to theperson making the request in complying with suchrequest . . . .’’34 In addition, § 1-212 (b) (4) providesthat the department of administrative services ‘‘shallmonitor the calculation of the fees charged for copiesof computer-stored public records to ensure that suchfees are reasonable and consistent among agencies.’’

The DEP contends that § 1-212 (b) (3) authorizes itto pass on to Whitaker the $25 per image copying feethat it must pay to Pictometry under the licensingagreement. The commission contends that, to the con-trary, such a fee would not be reasonable, as requiredby § 1-212 (b) (4). We conclude, however, that the $25per image copying fee is not a fee for the disclosureor copying of ‘‘public records in a computer storagesystem’’ and, therefore, is not governed by §§ 1-211 (a)and 1-212 (b) (3), even though the records in the presentcase happen to be stored in a computer. Rather, it is afee for copying a copyrighted public record. It wouldbe anomalous to conclude §§ 1-211 (a) and 1-212 (b)(3) govern the fee that may be charged for copying acopyrighted record if the record is stored in a computer,but other rules govern the fee that can be charged forcopying other copyrighted records.35 Indeed, althoughthe commission relies on § 1-212 (b) (4) in support ofits position, its arguments are not premised on the factthat the photographic images are stored in a computer,but on the fact that they are public records. Specifically,it contends that Whitaker is entitled to receive copiesof the photographic images at ‘‘minimal cost’’ becausethey ‘‘are not [Pictometry’s] ‘private’ works; they arepublic records purchased at considerable expense withtaxpayer money and used for an important governmen-tal purpose.’’ Accordingly, we conclude that the issuebefore us is not whether § 1-212 (b) specifically autho-rizes the DEP to charge Whitaker for the cost of copyingthe copyrighted photographic images pursuant to thelicensing agreement, but whether § 1-212 was intendedto bar the DEP from charging Whitaker for fees incurred

pursuant to federal copyright law in addition to the feesspecifically authorized by that statute.

We conclude that § 1-212 was not intended to barpublic agencies from charging for the cost of copyingcopyrighted materials in addition to the fees specificallyauthorized by § 1-212. First, we conclude that the $25fee that the DEP is required to pay Pictometry for repro-ducing its photographic images for use by a nonlicenseduser is not a fee for a ‘‘copy’’ in the sense that that wordis used in § 1-212. That statute clearly was intended toplace limits on the mechanical, material and labor costsof preparing copies that a public agency may pass onto the person requesting the copy. The $25 per imagefee provided for in the licensing agreement is not, how-ever, a fee for the mechanical, material or labor costsof reproducing copies of the copyrighted materials.Rather, it is a licensing fee, i.e., a fee for the use ofanother entity’s private property. Nothing in § 1-212suggests that it was intended to prohibit state agenciesfrom passing on licensing fees.

In addition, it is apparent to us that a rule barringpublic agencies from passing on such costs would con-stitute an effective prohibition, or a least a drastic limi-tation, on their use of copyrighted materials. Forexample, in the present case, if the commission deter-mines on remand that Whitaker wants and is entitledto copies of all of the 400,000 photographic imagesstripped of the metadata, the DEP would be required topay Pictometry more than $9 million to provide them.36

Needless to say, the state is not in a financial position toexpend millions of dollars to provide private individualswith copies of copyrighted public records for their per-sonal use, and the commission has pointed to no evi-dence that the legislature intended such a drastic andunrealistic result when it enacted the act.

The commission contends that this conclusion isinconsistent with this court’s decision in HartfordCourant Co. v. Freedom of Information Commission,supra, 261 Conn. 86. In that case, the plaintiffs requestedfrom the department of public safety an electronic copyof the public portion of the department’s criminal his-tory records for all adults pursuant to the act. Id., 89.The department indicated that it would provide therecords for a fee of $25 per record, pursuant to GeneralStatutes § 29-11 (c). Id. The total cost would be$20,375,000. Id. The plaintiff filed a complaint with thecommission claiming that the fee was not governed by§ 29-11 (c), but by the provisions of §§ 1-211 (a) and 1-212 (b). Id. The commission concluded that § 29-11 (a)applied, and the trial court affirmed that decision. Id.,90–91. On appeal, this court concluded that § 29-11 (c)did not apply because the statute ‘‘establishes the fee fora ‘criminal history record information search . . . .’ ’’(Emphasis in original.) Id., 100. Because the plaintiffhad not requested a search of the criminal records, but

had requested all criminal records, §§ 1-211 and 1-212(b) applied. Id., 100–101. We stated, in the languagethat the commission relies on in the present case, that,‘‘[w]ere we to hold otherwise, the fee for the plaintiff’srequest would be $20,375,000, a result that would havethe practical effect of denying the plaintiff access torecords that, by statute, must be made available to thepublic. Such a result would be inconsistent both withthe act’s broad policy favoring the disclosure of infor-mation and with the well established canon of statutoryconstruction that those who promulgate statutes orrules do not intend to promulgate statutes or rules thatlead to absurd consequences or bizarre results.’’ (Inter-nal quotation marks omitted.) Id., 101.

We conclude that Hartford Courant Co. is distin-guishable from the present case because there was noclaim in that case that the public records fell withinany statutory exemption to the act. In addition, the casedid not involve a situation where, if the state agencywere barred from charging a fee in addition to thecopying fee allowed by § 1-212, the agency itself wouldbe required to incur the fee. Although we recognizethat, as in Hartford Courant Co., allowing the DEP tocharge Whitaker $25 per photographic image mighthave the same practical effect as a denial of his requestfor copies, it is also clear to us that prohibiting stateagencies from passing fees incurred pursuant to federalcopyright law on to the person who requested the copywould have the practical effect of barring, or at leastdrastically limiting, the use of copyrighted materialsby state agencies. Such a rule would not advance theunderlying policy of the act favoring ‘‘the open conductof government and free public access to governmentrecords.’’ (Internal quotation marks omitted.) Stamfordv. Freedom of Information Commission, supra, 241Conn. 314. Rather, it would subject state agencies tovirtually limitless financial exposure, thereby chillingtheir ability to obtain the information that they requireto perform vital public services, a result that the legisla-ture could not have intended. See Hartford CourantCo. v. Freedom of Information Commission, supra, 261Conn. 101 (‘‘those who promulgate statutes or rules donot intend to promulgate statutes or rules that leadto absurd consequences or bizarre results’’ [internalquotation marks omitted]).

The judgments are reversed and the cases areremanded to the trial court with direction to sustainthe plaintiffs’ appeals and to remand the cases to thefreedom of information commission for further pro-ceedings in accordance with this opinion.

In this opinion the other justices concurred.* The listing of justices reflects their seniority status on this court as of

the date of oral argument.1 General Statutes § 1-210 (a) provides in relevant part: ‘‘Except as other-

wise provided by any federal law . . . all records maintained or kept onfile by any public agency, whether or not such records are required by anylaw 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 officeor business hours, (2) copy such records in accordance with subsection (g)of section 1-212, or (3) receive a copy of such records in accordance withsection 1-212. . . .’’

We note that subsequent to the relevant proceedings here, § 1-210 (a) hasbeen amended, however, none of the changes are relevant to these appeals.For purposes of convenience, references herein to § 1-210 (a) are to the2011 revision of the statute.

2 We note that the names of the DOIT and the DEP, as well as the depart-ment of public works, which is also referenced later in this opinion, havechanged since the relevant proceedings in these appeals. DOIT is now thebureau of enterprise systems and technology, DEP is now the departmentof energy and environmental protection, and the department of public worksis now the bureau of properties and facilities management.

3 General Statutes § 1-210 (b) provides in relevant part: ‘‘Nothing in theFreedom of Information Act shall be construed to require disclosure of . . .

‘‘(19) Records when there are reasonable grounds to believe disclosuremay result in a safety risk, including the risk of harm to any person, anygovernment-owned or leased institution or facility or any fixture or appurte-nance and equipment attached to, or contained in, such institution or facility. . . . Such reasonable grounds shall be determined (A) (i) by the Commis-sioner of Public Works, after consultation with the chief executive officerof an executive branch state agency, with respect to records concerningsuch agency . . . .’’

We note that subsequent to the relevant proceedings here, § 1-210 (b) hasbeen amended, however, none of the changes are relevant to these appeals.For purposes of convenience, references herein to § 1-210 (b) are to the2011 revision of the statute.

4 The DPW, which had been joined as a respondent to Whitaker’s complaintagainst the DEP, also filed a separate appeal from the commission’s decision,which was consolidated with the DEP’s appeal and Pictometry’s appeal.The DPW is not a party to this appeal.

5 Pictometry and the DEP appealed separately from the judgment of thetrial court to the Appellate Court and we transferred the appeals to thiscourt pursuant to General Statutes § 51-199 (c) and Practice Book § 65-2.We subsequently consolidated the appeals.

6 The oblique images are taken at an angle and provide a three-dimensionaltype view of the photographed site. The orthogonal images are taken froma perspective directly above the photographed site.

7 The Copyright Act provides in relevant part: ‘‘[T]he owner of copyrightunder this title has the exclusive rights to do and to authorize any of the fol-lowing:

‘‘(1) to reproduce the copyrighted work in copies . . .‘‘(2) to prepare derivative works based upon the copyrighted work;‘‘(3) to distribute copies . . . of the copyrighted work to the public by

sale or other transfer of ownership, or by rental, lease, or lending . . . .’’17 U.S.C. § 106.

8 Schedule B of the licensing agreement provided: ‘‘1. All [l]icensed[i]mages provided pursuant to this [l]icense [a]greement are and shall remainthe property of Pictometry . . . and shall contain Pictometry’s copyrightnotices. This is a license to use the images and software.

‘‘2. Any reproductions of the [l]icensed [i]mages using the [l]icensed [s]oft-ware, or reproduction or copying of the [l]icensed [i]mages in any form byany other means by [l]icensee or an [a]uthorized [s]ubdivision thereof, shallbe for [s]tate use or use by ‘[p]roject [p]articipants’ for ‘[l]icensee [p]rojects’as covered in [s]ection 4.1 [(b) (2) of this agreement] of the [l]icensee oran [a]uthorized [s]ubdivision thereof, unless a fee is paid by [l]icensee toPictometry as follows:

‘‘A. For each [h]ard [c]opy of an [i]mage, a fee of $25 shall be paid toPictometry. All such fees shall be remitted monthly to Pictometry.

‘‘B. For each [d]igital [c]opy of an [i]mage, a fee of $25 shall be paid toPictometry. All such fees shall be remitted monthly to Pictometry.

‘‘3. Licensee may pass these fees on to the authorized persons or entitiesreceiving the [i]mages and charge additional fees for work [l]icensee per-forms in preparing, annotating and/or copying the [i]mages.’’

9 General Statutes § 1-210 (b) provides in relevant part: ‘‘Nothing in theFreedom of Information Act shall be construed to require disclosure of . . .

‘‘(5) (A) Trade secrets, which for purposes of the Freedom of InformationAct, are defined as information, including formulas, patterns, compilations,programs, devices, methods, techniques, processes, drawings, cost data,

customer lists, film or television scripts or detailed production budgets that(i) derive independent economic value, actual or potential, from not beinggenerally known to, and not being readily ascertainable by proper meansby, other persons who can obtain economic value from their disclosureor use, and (ii) are the subject of efforts that are reasonable under thecircumstances to maintain secrecy; and

‘‘(B) Commercial or financial information given in confidence, not requiredby statute . . . .’’

10 The commissioner of emergency management and homeland securityhad submitted a letter to the commissioner of public works in which hestated that the release of the images to Whitaker ‘‘would necessarily andinappropriately include detailed images of certain of the state’s criticalinfrastructure assets and key resources.’’ In addition, the commissioner ofemergency management and homeland security stated that blurring theimages or withholding images of critical infrastructure would not solve thesecurity problem because doing so ‘‘would create a ‘road map’ regardingthe location of those critical assets and resources . . . .’’ The commissionerof correction and the chairman of the department of public utility controlalso submitted letters to the commissioner of public works expressing simi-lar safety concerns.

11 The DPW stated that ‘‘[c]ritical infrastructure and key resources include,but are not limited to: agriculture and food; banking and finance; dams;drinking water and waste treatment facilities; defense industry facilities;commercial facilities; energy and utility related functions such as substationsor tank farms and pipelines; nuclear reactors, materials and waste; chemicalfacilities; telecommunications and informational technology systems; trans-portation systems; postal and shipping facilities; public health and healthcarecenters; federal, state and local government buildings including correctionsfacilities; emergency services; and [n]ational and [s]tate monuments andicons.’’

12 The trial court also stated that ‘‘[r]equiring disclosure under the [act]of the digital images does not conflict with the rights of Pictometry underthe . . . Copyright Act or its contractual rights under the licensingagreement . . . [because] Pictometry’s rights and remedies for injunctiverelief and damages under [the Copyright Act] remain intact. So too, itscontractual rights and remedies.’’

13 We conclude in part II of this opinion that, as a matter of statutoryinterpretation, the Copyright Act is a ‘‘federal law’’ for purposes of thefederal law exemption and, therefore, that the DEP must comply with thecopying provision of the licensing agreement and federal copyright law ifit provides copies of the photographic images to Whitaker. The sole questionbefore us in this part of the opinion is whether it was within the commission’sdiscretion to reconfigure Whitaker’s request to apply only to copies of thephotographic images stripped of the metadata.

14 We note that subsequent to the relevant proceedings here, § 1-211 (a)has been amended, however, none of the changes are relevant to theseappeals. For purposes of convenience, references herein to § 1-211 (a) areto the 2011 revision of the statute.

15 It is possible that the commission intended that the DEP would obtaincopies of the photographic images stripped of the metadata from Pictometry.The parties did not have an opportunity, however, to address the questionof whether the commission has the authority to require a public agency toproduce copies of materials that are not in its possession.

16 The commission contends that its ruling on the safety issue cannot bechallenged on appeal to this court because the DPW failed to appeal fromthe trial court’s ruling and the DEP lacks standing to raise the claim. Wedisagree. Although the commissioner of the DPW has the ultimate authorityto make the safety determination under § 1-210 (b) (19), the statute implicitlyrecognizes that the interests of the DPW and of other state agencies inprotecting the safety of the state and its citizens are intertwined. Accordingly,we conclude that the DEP had standing to raise the issue on appeal fromthe commission’s ruling. Canty v. Otto, 304 Conn. 546, 557, 41 A.3d 280(2012) (‘‘particular legislation grants standing to those who claim injury toan interest protected by that legislation’’ [internal quotation marks omitted]);cf. In re Christina M., 280 Conn. 474, 487, 908 A.2d 1073 (2006) (becauserights of parents and rights of children are ‘‘inextricably intertwined,’’ parentshave standing to raise children’s rights in appeal from proceeding on petitionto terminate parental rights).

The commission also contended at oral argument before this court thatthe DPW and the DEP should have foreseen that the commission would

order the disclosure of the photographic images without the associatedmetadata and that they waived any claim that such disclosure would posea safety risk by not raising it in the prior proceedings. Again, we disagree.As we have indicated, the record would support a finding that Whitakerwanted both the photographic images and the associated metadata, andthat he did not want and could not use the images stripped of the metadata.The commission gave no indication that it might order the DEP to providesomething that Whitaker had not asked for and had indicated that he couldnot use. Accordingly, the DPW and the DEP reasonably could have believedthat the commission would not order the disclosure of the images alone.

17 Both Pictometry and the DEP concede that the photographic images inthe DEP’s possession are public records for purposes of the act and thatthe images may be freely disclosed to members of the public. They claimonly that federal copyright law imposes conditions on the authority of publicagencies to provide copies of copyrighted public records to the public.

18 The trial court suggested that Pictometry’s rights under federal copyrightlaw were enforceable both against the DEP and against Whitaker, but thatany claim that Whitaker intends to use the images in a manner prohibitedby federal copyright law is not ripe.

19 We further note that the commission stated in its decision that ‘‘thecharge of $25 per image in addition to the [fee for the] two year licensingagreement would be an unreasonable charge . . . .’’ Because the commis-sion concluded that it was unreasonable to charge the per image fee inaddition to the licensing fee, the ‘‘unreasonable charge’’ referred to by thecommission could only be the copying fee that Pictometry is entitled tocharge the DEP pursuant to the licensing agreement. The commissionexpressly argues in its brief to this court, however, that it is unreasonablefor the DEP to charge Whitaker the $25 per image copying fee.

20 The conflict between these two positions is illustrated by the decisionof the United States Court of Appeals for the District of Columbia Circuitin Weisberg v. United States Dept. of Justice, 631 F.2d 824 (D.C. Cir. 1980).In that case, the plaintiff sought copies of certain copyrighted photographsin the possession of the Federal Bureau of Investigation. Id., 825. The UnitedStates District Court had concluded that the photographs were ‘‘ ‘agencyrecords’ ’’ subject to disclosure under the federal Freedom of InformationAct. Id., 826. It had further concluded the Copyright Act did not come withinan exemption to the federal Freedom of Information Act for materials thatare ‘‘ ‘specifically exempted from disclosure by statute.’ ’’ Id., 826 n.27.Accordingly, it ordered the Federal Bureau of Investigation to provide printsof the photographs to the plaintiff. Id., 826. On appeal, the United StatesCourt of Appeals agreed with the District Court that the photographs were‘‘ ‘agency records’ ’’; id., 828; and concluded that ‘‘the mere existence ofcopyright, by itself, does not automatically render [the federal Freedom ofInformation Act] inapplicable to materials that are clearly agency records.’’Id., 825. The court also concluded, however, that ‘‘[d]eciding that copyrightedmaterials are subject to [the federal Freedom of Information Act] . . . doesnot resolve whether any particular . . . request should be granted, and ifso, under what terms.’’ Id., 828. The court then recognized that the trialcourt’s ruling had ‘‘vitally affect[ed] the value of [the] alleged copyright.’’Id., 829. Because the owner of the copyright, Time, Inc. (Time), had notbeen made a party to the case, ‘‘[t]he possibility . . . remain[ed] that aseparate action by [Time] would be allowed to proceed, raising the prospectof conflicting legal obligations for the [g]overnment with respect to thedisposition of [Time’s photographs].’’ Id., 829–30. Accordingly, the Court ofAppeals concluded that Time must be made a party to the case and remandedthe matter to the trial court for that purpose. Id., 831. Thus, the court inWeisberg recognized that an order to a government agency to provide copiesof public records that are protected by copyright in a manner that ‘‘invali-dates or limits the scope of an interested party’s copyright’’; id, 830 n.39;would be in conflict with a later order enforcing the copyright holder’sstatutory and contractual rights. It is clear, therefore, that the commissionin the present case could not reasonably have concluded both that the actabrogates Pictometry’s rights under federal copyright law and that Pictome-try may fully vindicate those rights in a private enforcement action.

21 ‘‘[B]ecause the . . . appeal to the trial court [was] based solely on therecord, the scope of the trial court’s review of the [commission’s] decisionand the scope of our review of that decision are the same. . . . In otherwords, the trial court’s decision in this administrative appeal is entitled tono deference from this court.’’ (Citation omitted; internal quotation marksomitted.) Commissioner of Correction v. Freedom of Information Commis-sion, 307 Conn. 53, 63–64 n.15, 52 A.3d 636 (2012).

22 General Statutes § 1-2z provides: ‘‘The meaning of a statute shall, in thefirst instance, be ascertained from the text of the statute itself and itsrelationship to other statutes. If, after examining such text and consideringsuch relationship, the meaning of such text is plain and unambiguous anddoes not yield absurd or unworkable results, extratextual evidence of themeaning of the statute shall not be considered.’’

23 The supremacy clause of the United States constitution provides inrelevant part: ‘‘This Constitution, and the Laws of the United States whichshall be made in Pursuance thereof . . . shall be the supreme Law of theLand; and the Judges in every State shall be bound thereby . . . .’’ U.S.Const., art. VI.

24 We note that § 501 (a) of title 17 of the United States Code expresslyprovides that ‘‘any State, any instrumentality of a State, and any officer oremployee of a State or instrumentality of a State acting in his or her officialcapacity’’ that infringes on the rights of a copyright owner may be subjectto an action for infringement.

25 In its brief, the commission cites Lieberman in support of its claimthat it would not be reasonable for the DEP to charge Whitaker $25 perphotographic image. It suggests, however, that the reason that charging thefee would be unreasonable is that the provision of the licensing agreementallowing Pictometry to charge the DEP $25 for each copy made of thephotographic images, which provision is authorized by and enforceableunder § 106 of title 17 of the United States Code; see footnote 6 of thisopinion; is in conflict with the act and, therefore, is null and void underthis court’s decision in Lieberman.

26 ‘‘On the floor of the House of Representatives, Representative [MartinB.] Burke stated: ‘In line 164, there is the word ‘‘TAX RETURNS’’ insertedin one of the exemptions for public records and it would read ‘‘records, taxreturns, reports and statements exempted by federal law or state statute.’’Now the reason for this, the Tax Department called it to the Committee’sattention . . . that under federal law, tax returns are to be confidential anddid we not specifically exempt tax returns, we would probably have someproblems so we did so, although, in my own personal opinion, that was theintention of the Committee all along when we said records, reports andstatements exempted by federal law. . . .’ . . . 18 H.R. Proc., [Pt. 8, 1975Sess.], p. 3897.

‘‘Thereafter, the following exchange occurred between RepresentativesBurke and Albert R. Webber:

‘‘ ‘[Representative Webber]: Through you Mr. Speaker, a question to thegentleman from the 56th. In line with the questioning developed by [Repre-sentative Gerald F.] Stevens, could one get information from a parole board?I speak particularly of the applicant for parole. Could he receive, under theterms of this Amendment, or the Bill, the detailed information as to hisstatus and why from a board of pardons or parole board?

‘‘ ‘[Representative Burke]: Through you Mr. Speaker, there is a generalexclusion in the Bill itself concerning records, reports and statementsexempted by state statutes. There is a further exclusion concerning recordsof law enforcement agencies. It would be possibly, I guess on my part, butI would say that, because I don’t know what the parole statutes say, wecertainly didn’t peruse every section of the General Statutes in dealing withthis Bill. But if they are privileged and exempt from inspection, as they nowexist, then they would continue to be so under the blanket exclusion, if youwill, on lines 164 and 165 of the file copy.’ 18 H.R. Proc., supra, pp. 3904–3905.’’ Chief of Police v. Freedom of Information Commission, supra, 252Conn. 399–400 n.26.

27 Similarly, the trial court’s determination in Danaher v. Freedom of Infor-mation Act, Superior Court, judicial district of New Britain, Docket No. 08-4016067-S (September 5, 2008), that the federal Freedom of Information Actis not a federal law for purposes of the federal law exemption because thefederal act does not prohibit the disclosure of any public records does notsupport the proposition that a federal law that does prohibit or conditionthe copying of a public record is not a federal law within the meaning ofthe exemption.

28 The commission also cites St. Paul’s Benevolent Educational & Mission-ary Institute v. United States, 506 F. Sup. 822, 830 (1980), for the propositionthat copyrighted materials are subject to the federal Freedom of InformationAct because that act ‘‘does not provide any specific exemption for copy-righted materials, nor does the [C]opyright [A]ct meet the exemption stan-dards under 5 U.S.C. § 552 (b) (3).’’ As the court stated in Weisberg v.United States Dept. of Justice, supra, 631 F.2d 828, however, ‘‘[d]ecidingthat copyrighted materials are subject to [the federal Freedom of Information

Act] . . . does not resolve whether any particular . . . request should begranted, and if so, under what terms.’’

29 The advisory opinion also provided that, ‘‘if unnecessarily increasing afee [for a copy of a copyrighted public record] results in a lesser opportunityfor members of the public to gain access to records, such an action wouldtend to defeat the intent of the [freedom of information] law.’’ AdvisoryOpinion, Committee on Open Government, New York Dept. of State, No.FOIL-AO-14966 (October 26, 2004) p. 2, available at http://docs.dos.ny.gov/coog/ftext/f14966.htm (last visited January 18, 2013). There is no evidencein the present case, however, that the fee agreed upon by Pictometry andthe DEP was unreasonably or ‘‘unnecessarily’’ high. See footnote 25 ofthis opinion.

30 One of the opinions cited by the commission concluded that freedomof information laws may limit the right of a public entity to copyright itsown work. United States Dept. of Justice, Office of Information PolicyGuidance, FOIA Update, Vol. IV, No. 4 (1983) p. 3, available at http://www.usdoj.gov/oip/foia_updates/Vol_IV_4/page3.htm (last visited January 18,2013) (‘‘the courts have over the years placed a ‘judicial gloss’ on the Copy-right Act to generally preclude copyright status for works embodying stat-utes, opinions, and regulatory matters, based upon the general principlethat such governmental matters should properly be in the public domain’’);see also Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1331–35,89 Cal. Rptr. 374 (2009) (county had no statutory authority to copyrightits own works, thereby bringing them within exemption from freedom ofinformation law for copyrighted works); Microdecisions, Inc. v. Skinner,889 So. 2d 871, 876 (Fla. App. 2005) (county property assessor had nostatutory authority to copyright county’s own works that were subject tofreedom of information law). These authorities do not support the proposi-tion that public entities are not bound by the protections afforded to worksthat are copyrighted.

31 Title 17 of the United States Code, § 107, provides: ‘‘Notwithstandingthe provisions of sections 106 and 106A, the fair use of a copyrighted work,including such use by reproduction in copies or phonorecords or by anyother means specified by that section, for purposes such as criticism, com-ment, news reporting, teaching (including multiple copies for classroomuse), scholarship, or research, is not an infringement of copyright. Indetermining whether the use made of a work in any particular case is a fairuse the factors to be considered shall include—

‘‘(1) the purpose and character of the use, including whether such use isof a commercial nature or is for nonprofit educational purposes;

‘‘(2) the nature of the copyrighted work;‘‘(3) the amount and substantiality of the portion used in relation to the

copyrighted work as a whole; and‘‘(4) the effect of the use upon the potential market for or value of the

copyrighted work.‘‘The fact that a work is unpublished shall not itself bar a finding of fair

use if such finding is made upon consideration of all the above factors.’’32 If the DEP believed that providing Whitaker with copies of the photo-

graphic images would be a fair use of them for purposes of § 107 of title17 of the United States Code, it could do so subject to the risk that Pictometrycould bring a copyright enforcement action against the DEP if it were toconclude otherwise. The commission cannot force the DEP to take thatrisk, however, by ordering the DEP to provide copies to Whitaker andnullifying its contractual obligation to Pictometry to pay for the copies,thereby subjecting the DEP to potentially conflicting legal obligations. SeeWeisberg v. United States Dept. of Justice, supra, 631 F.2d 829–30.

33 Title 28 of the United States Code (Sup. 2011), § 1338 (a), provides inrelevant part: ‘‘The district courts shall have original jurisdiction of any civilaction arising under any Act of Congress relating to patents, plant varietyprotection, copyrights and trademarks. No State court shall have jurisdictionover any claim for relief arising under any Act of Congress relating to patents,plant variety protection, or copyrights. . . . ’’

34 General Statutes § 1-212 (b) provides: ‘‘The fee for any copy providedin accordance with subsection (a) of section 1-211 shall not exceed the costthereof to the public agency. In determining such costs for a copy, otherthan for a printout which exists at the time that the agency responds to therequest for such copy, an agency may include only:

‘‘(1) An amount equal to the hourly salary attributed to all agency employ-ees engaged in providing the requested computer-stored public record,including their time performing the formatting or programming functionsnecessary to provide the copy as requested, but not including search or

retrieval costs except as provided in subdivision (4) of this subsection;‘‘(2) An amount equal to the cost to the agency of engaging an outside

professional electronic copying service to provide such copying services,if such service is necessary to provide the copying as requested;

‘‘(3) The actual cost of the storage devices or media provided to theperson making the request in complying with such request; and

‘‘(4) The computer time charges incurred by the agency in providing therequested computer-stored public record where another agency or contrac-tor provides the agency with computer storage and retrieval services. Not-withstanding any other provision of this section, the fee for any copy of thenames of registered voters shall not exceed three cents per name deliveredor the cost thereof to the public agency, as determined pursuant to thissubsection, whichever is less. The Department of Information Technologyshall monitor the calculation of the fees charged for copies of computer-stored public records to ensure that such fees are reasonable and consistentamong agencies.’’

We note that subsequent to the relevant proceedings here, § 1-212 (b) hasbeen amended, however, none of the changes are relevant to these appeals.For purposes of convenience, references herein to § 1-212 (b) are to the2011 revision of the statute.

35 For public records that are not maintained in a computer storage system,§ 1-212 (a) (A) provides that the agencies listed in that subparagraph cannotcharge more than twenty-five cents per page for copies and § 1-212 (a) (B)provides that all other agencies cannot charge more than fifty cents per page.

36 In addition, if Whitaker had the right to obtain copies of the imagesfrom the DEP at ‘‘minimal cost,’’ every member of the public would havethe same right.