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FOIL-AO-13550 August 14, 2002

E-Mail

TO:

FROM: Robert J. Freeman, Executive Director

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear

I have received your letter in which you referred to a request made to the City of Syracuse for "the digital files of two maps that they had supplied...in a paper format two years ago." Based on a discussion with staff, you indicated that the "City's only hesitation has been that the maps might pose a security threat." Nevertheless, you wrote that the City determined that it would make available digital picture files rather than the raw data in the format that you requested. You added that the City would like you to "sign forms" to the effect that you "can not post the data to the internet."

In consideration of the foregoing, you raised the following questions:

"Can they deny info based on the 'security' issue if the data is already publically [sic] available online or in a paper format?

"Can a government agency COPYRIGHT other data than tax maps? Can the recent Suffolk County decision regarding the copyright of tax maps be applied to other data generated by a governmental agency?"

With respect to the first question concerning "security", perhaps of greatest significance is §87(2)(f), which permits an agency to withhold records or portions thereof which if disclosed "would endanger the life or safety of any person." Although an agency has the burden of defending secrecy and demonstrating that records that have been withheld clearly fall within the scope of one or more of the grounds for denial [see §89(4)(b)], in the case of the assertion of that provision, the standard developed by the courts is somewhat less stringent. In citing §87(2)(f), it has been found that:

"This provision of the statute permits nondisclosure of information if it would pose a danger to the life or safety of any person. We reject petitioner's assertion that respondents are required to prove that a danger to a person's life or safety will occur if the information is made public (see, Matter of Nalo v. Sullivan, 125 AD2d 311, 312, lv denied 69 NY2d 612). Rather, there need only be a possibility that such information would endanger the lives or safety of individuals...."[emphasis mine; Stronza v. Hoke, 148 AD2d 900,901 (1989)].

The principle enunciated in Stronza has appeared in several other decisions [see Ruberti, Girvin & Ferlazzo v. NYS Divsion of the State Police, 641 NYS 2d 411, 218 AD2d 494 (1996), Connolly v. New York Guard, 572 NYS 2d 443, 175 AD 2d 372 (1991), Fournier v. Fisk, 83 AD2d 979 (1981) and McDermott v. Lippman, Supreme Court, New York County, NYLJ, January 4, 1994], and it was determined in American Broadcasting Companies, Inc. v. Siebert that when disclosure would "expose applicants and their families to danger to life or safety", §87(2)(f) may properly be asserted [442 NYS2d 855, 859 (1981)]. Also notable is the holding by the Appellate Division in Flowers v. Sullivan [149 AD2d 287, 545 NYS2d 289 (1989)] in which it was held that "the information sought to be disclosed, namely, specifications and other data relating to the electrical and security transmission systems of Sing Sing Correctional Facility, falls within one of the exceptions" (id., 295). In citing §87(2)(f), the Court stated that:

"It seems clear that disclosure of details regarding the electrical, security and transmission systems of Sing Sing Correctional Facility might impair the effectiveness of these systems and compromise the safe and successful operation of the prison. These risks are magnified when we consider the fact that disclosure is sought by inmates. Suppression of the documentation sought by the petitioners, to the extent that it exists, was, therefore, consonant with the statutory exemption which shelters from disclosure information which could endanger the life or safety of another" (id.).

In short, although §87(2)(f) refers to disclosure that would endanger life or safety, the courts have clearly indicated that "would" means "could." If records have been previously disclosed to the public, it would be difficult in my view for an agency to prove that disclosure of the records could now or in the future endanger life or safety. That would be particularly so if records have been made available via the internet. As you are aware, once the records can be acquired through a powerful search engine, such as Google, they remain available, even if they are removed from an agency's website.

Your remaining question involves the ability of a government agency to copyright records other than tax maps. It is my understanding that the ability of government agencies to copyright records that they prepare is being questioned in various contexts throughout the United States. Although it was held that Suffolk County could bring suit for copyright infringement relating to its tax maps, it is questionable whether other federal courts would reach the same conclusion. If indeed tax maps may be subject to copyright protection, I believe that other records prepared by government agencies could also be copyrighted. Nevertheless, the authority of state and local government to copyright records that they produce must, in my opinion, eventually be resolved by the Supreme Court. Only then can an unequivocal response be offered.

Even when a work is copyrighted, I note that under the U.S. Copyright Act, copyrighted work may be reproduced "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" without infringement of the copyright. Further, the Act describes the factors to be considered in determining whether a work may be reproduced for a fair use, including "the effect of the use upon the potential market for or value of the copyrighted work" [17 U.S.C. §107(4)].

I hope that I have been of assistance.

RJF:jm

cc: GIS Coordinator, Water Department, City of Syracuse