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Town ordered to turn over obsolete GIS data

Connecticut, USA, 11 July 2006: At its June 28 meeting, state Freedom of Information Commissioner Andrew J. O’Keefe looked directly at Stephen Whitaker, who was asking that his 2001 request for Greenwich, Connecticut’s GIS data also include up-to-date records.

For five years, Greenwich has been fighting Whitaker in the courts and the legislature. Despite a clear win at the state Supreme Court, Whitaker contends he has yet to get the information he wants in a format he can use. A hearing officer proposed giving him a hard drive copy of the 2001 GIS data.

“I think you have been stonewalled, and my sympathies are with you,” said O’Keefe. Unfortunately, O’Keefe added, the commission is powerless to give him the later information, as a matter of its legal jurisdiction. The commission’s jurisdiction is limited by statute to records in existence at the time of a request.

Valerie Maze-Keeney, Greenwich assistant town attorney, accompanied the defendant, Boris Hutorin, director of Greenwich’s department of information technology. Maze-Keeney contended that compliance with the proposed remedy would force Greenwich to buy new software to create a record of what it gave Whitaker, and supply him with a free hard drive containing the GIS data. This would create a bad precedent, she said. “Given these troubling issues,” she concluded, Greenwich would prefer to give Whitaker a tape of the data in the town’s now-obsolete 2001 format.

Whitaker wanted the draft opinion modified to follow an approach federal courts have taken with the FOIA. A 2002 D.C. Circuit Court decision held that the U.S. State Department should provide data current through the time of the search, rather than from the time of the request. In Whitaker’s case, however, the FOIC rejected the “date of search” approach, out of concern that it would encompass records that were not in existence at the time of his request.

Without making any changes, the commission adopted the 28 findings issued six days earlier, on June 22, by FOIC hearing officer Mary E. Schwind. She found that Whitaker was entitled to the data through 2001 on an external hard drive provided at Greenwich’s expense. O’Keefe advised Whitaker to take what the FOIC granted, then make a new request for the subsequent data.

Still, Greenwich First Selectman Jim Lash said that the town is not likely to appeal the commission’s decision. Colleen M. Murphy, the executive director of the FOIC, said that, no matter how a request is phrased, it would be difficult to obtain documents on a date-of-search basis. “To bring the request forward to the date of ultimate decision, or provision of the records, would potentially be a denial of due process,” to the town or government agency, she said. “The agency would be denied the opportunity to argue about those forward-looking records.”

Hers is not just a hypothetical concern. Shortly after Whitaker’s original request, a 2002 homeland security-based exemption was added in the wake of the 9/11 terrorist attacks. Greenwich contends it can and should remove from the publicly available GIS database any information that could aid potential terrorists. “We’re talking about 36-inch sewer and drainage pipes that run underneath a railroad line, for example,” Lash said.