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March 14, 2000

FOIL-AO-11992

Ms. Christina T. Fisk
Vice President
JIMAPCO
P.O. Box 1137
Clifton Park, NY 12065

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 Ms. Fisk:

As you are aware, I have received your letters of October 29 and December 13. Both
deal with difficulties that you have encountered in your attempts to obtain government
records to enable JIMAPCO to produce map products that are as accurate as possible. You
wrote that:

"We have repeatedly experienced refusal of our requests for
access to geographic information based upon such reasons as:

1) we are a commercial business
2) they paid to compile the information and they
will not release it.

"The type of documents and files we seek generally are details
about street names, political boundaries, fire and ambulance
boundaries, and locations of public facilities. We do not expect
the materials to be compiled in any special manner for our
requests."

In the first letter, you wrote that a municipality contracted with a private firm to create
a "digital GIS system" for the municipality and has contended that only that firm can gain
access to the data. The second involves requests directed to the New York State Department
of Transportation (DOT) for "digital datasets." In response, you were informed that you
must sign a "copyright agreement" stating that you will not use the materials for commercial
purposes. DOT has contended that:

"...when a commercial enterprise wishes to make commercial
profits based on the use and exploitation of property owned by
the government, including intellectual property as well as real
estate or physical property, it cannot simply take that property
from its public owners without compensation, but must instead
purchase or license the property and provide the State and its
taxpayers with fair compensation for the property that it wishes
to use. Requestors will be granted access in compliance with
FOIL, but if they wish to sell what they obtain to other people
at a profit, they will have to license it first."

In short, DOT is stating that you may acquire a copy of its data, but that you cannot use it in
your business activities.

In some respects, the two situations involve common issues of public policy. In the
case of the former, I believe that the answer is reasonably clear. The latter, however, raises
somewhat novel issues.

With regard to the GIS data prepared by a firm for a municipality, it is emphasized
that the Freedom of Information Law pertains to agency records. Section 86(4) of that statute
defines the term "record" expansively to include:

"any information kept, held, filed, produced, reproduced by,
with or for an agency or the state legislature, in any physical
form whatsoever including, but not limited to, reports,
statements, examinations, memoranda, opinions, folders, files,
books, manuals, pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer tapes or discs,
rules, regulations or codes."

The Court of Appeals, the State's highest court, has construed the definition as
broadly as its specific language suggests. The first such decision that dealt squarely with the
scope of the term "record" involved documents pertaining to a lottery sponsored by a fire
department. Although the agency contended that the documents did not pertain to the
performance of its official duties, i.e., fighting fires, but rather to a "nongovernmental"
activity, the Court rejected the claim of a "governmental versus nongovernmental dichotomy"
[see Westchester Rockland Newspapers v. Kimball, 50 NY2d 575, 581 (1980)] and found
that the documents constituted "records" subject to rights of access granted by the Law.
Moreover, the Court determined that:

"The statutory definition of 'record' makes nothing turn on the
purpose for which it relates. This conclusion accords with the
spirit as well as the letter of the statute. For not only are the
expanding boundaries of governmental activity increasingly
difficult to draw, but in perception, if not in actuality, there is
bound to be considerable crossover between governmental and
nongovernmental activities, especially where both are carried
on by the same person or persons" (id.).

In a decision involving records prepared by corporate boards furnished voluntarily to
a state agency, the Court of Appeals reversed a finding that the documents were not
"records," thereby rejecting a claim that the documents "were the private property of the
intervenors, voluntarily put in the respondents' 'custody' for convenience under a promise of
confidentiality" [Washington Post v. Insurance Department, 61 NY 2d 557, 564 (1984)].
Once again, the Court relied upon the definition of "record" and reiterated that the purpose
for which a document was prepared or the function to which it relates are irrelevant.
Moreover, the decision indicated that "When the plain language of the statute is precise and
unambiguous, it is determinative" (id. at 565).

More recently, the Court of Appeals found that materials maintained by a corporation
providing services for a branch of the State University that were kept on behalf of the
University constituted "records" falling with the coverage of the Freedom of Information
Law [see Encore College Bookstores, Inc. v. Auxiliary Services Corporation of the State
University of New York at Farmingdale, 87NY2d 410, 417 (1995)]. Therefore, if records are
produced for an agency, as in the case of GIS data produced by a private entity for a
municipality, they constitute agency records, irrespective of their origin.

That JIMAPCO is a private entity seeking records for a profit making purpose is
likely irrelevant.

As a general matter, the Freedom of Information Law is based upon a presumption of
access. Stated differently, all records of an agency are available, except to the extent that
records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a)
through (i) of the Law. Further, when records are accessible under the Freedom of
Information Law, it has been held that they should be made equally available to any person,
regardless of one's status, interest or the intended use of the records [see Burke v. Yudelson,
368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)]. Moreover, the Court of
Appeals has held that:

"FOIL does not require that the party requesting records make
any showing of need, good faith or legitimate purpose; while
its purpose may be to shed light on government decision-
making, its ambit is not confined to records actually used in the
decision-making process. (Matter of Westchester Rockland
Newspapers v. Kimball, 50 NY2d 575, 581.) Full disclosure
by public agencies is, under FOIL, a public right and in the
public interest, irrespective of the status or need of the person
making the request" [Farbman v. New York City Health and
Hospitals Corporation, 62 NY 2d 75, 80 (1984)].

Farbman pertained to a situation in which a person involved in litigation against an agency
requested records from that agency under the Freedom of Information Law. In brief, it was
found that one's status as a litigant had no effect upon that person's right as a member of the
public when using the Freedom of Information Law, irrespective of the intended use of the
records. Similarly, unless there is a basis for withholding records in accordance with the
grounds for denial appearing in §87(2), the use of the records, including the potential for
commercial use or the status of the applicant, is in my opinion irrelevant.

The only exception to the principles described above involves the protection of
personal privacy. By way of background, §87(2)(b) of the Freedom of Information Law
permits an agency to withhold records to the extent that disclosure would constitute "an
unwarranted invasion of personal privacy." Further, §89(2)(b) of the Law provides a series
of examples of unwarranted invasions of personal privacy, one of which pertains to:

"sale or release of lists of names and addresses if such lists
would be used for commercial or fund-raising purposes"
[§89(2)(b)(iii)].

The provision quoted above represents what might be viewed as an internal conflict in the
law. As indicated earlier, the status of an applicant or the purposes for which a request is
made are irrelevant to rights of access, and an agency cannot inquire as to the intended use of
records. However, due to the language of §89(2)(b)(iii), rights of access to a list of names
and addresses, or equivalent records, may be contingent upon the purpose for which a request
is made [see Scott, Sardano & Pomeranz v. Records Access Officer of Syracuse, 65 NY 2d
294, 491 NYS 2d 289 (1985); Goodstein v. Shaw, 463 NYS 2d 162 (1983)].

In a case involving a list of names and addresses in which the agency inquired as to
the purpose of which the list was requested, it was found that an agency could make such an
inquiry. Specifically, in Golbert v. Suffolk County Department of Consumer Affairs
(Supreme Court, Suffolk County, September 5, 1980), the Court cited and apparently relied
upon an opinion rendered by this office in which it was advised that an agency may
appropriately require that an applicant for a list of names and addresses provide an indication
of the purpose for which a list is sought. In that decision, it was stated that:

"The Court agrees with petitioner's attorney that nowhere in the
record does it appear that petitioner intends to use the
information sought for commercial or fund-raising purposes.
However, the reason for that deficiency in the record is that all
efforts by respondents to receive petitioner's assurance that the
information sought would not be so used apparently were
unsuccessful. Without that assurance the respondents could
reasonably infer that petitioner did want to use the information
for commercial or fund-raising purposes."

As such, there is precedent indicating that an agency may inquire with respect to the purpose
of a request when the request involves a list of names and addresses. That situation,
however, represents the only case under the Freedom of Information Law in which an agency
may inquire as to the purpose for which a request is made, or in which the intended use of the
record has a bearing upon rights of access.

I would conjecture that the data requested from the municipality does not constitute a
list of names and addresses of natural persons. If that is so, I do not believe that there would
be any basis for a denial of access.

In sum, assuming that the GIS data has been produced for an agency, it is, in my
opinion, an agency record subject to rights of access conferred by the Freedom of
Information Law. Further, unless a record sought is a list of names and addresses, the intent
of the applicant and the intended use of the record are irrelevant.

The response by DOT to your request poses a more difficult series of issues. I note
that every state has enacted a statute dealing with public access to records of state and local
government. However, I know of no judicial decision that has focused squarely on the ability
of an agency to limit, restrict or condition the use of records acquired as of right pursuant to a
statute that requires the agency to disclose and copy its records. Further, federal agencies
cannot copyright their works, and there is no precedent dealing with copyright by the federal
government. DOT contends that by making copies of records available, it is in no way
infringing rights conferred by the Freedom of Information Law. The restriction, which is
based on a copyright, merely deals with "a situation involving a separate set of rights to the
ownership and possession of property which the State enjoys under a separate set of federal
laws."

The stance taken by DOT, in view of the Copyright Act (17 U.S. §101 et seq.),
arguably is correct. However, due to the inherent purpose of the Freedom of Information
Law and a review of the constitutional and statutory underpinnings of copyright protection, I
respectfully disagree.

In enacting the Freedom of Information Law, the State Legislature declared that:

"The more open a government is with its citizenry, the greater
the understanding and participation of public in government.

"As state and local government services increase and public
problems become more sophisticated and complex and
therefore harder to solve, and with the resultant increase in
revenues and expenditures, it is incumbent upon the state and
its localities to extend public accountability wherever and
whenever feasible."

"Extending" accountability through the Freedom of Information Law "wherever and
whenever feasible" in my view evidences an intent that the public good is best served when
records available under that statute are disclosed as widely as possible and without
impediment. As suggested earlier, in construing the Freedom of Information Law, the courts
have held that the status or interest of a person seeking records are irrelevant; the only
question (unless the record is a list of names and addresses of natural persons) is whether
there is a basis for a denial of access pursuant §87(2). "Interest" in my opinion relates to the
intended use of records. That a record may not be used for a purpose relating to the
accountability of government is of no moment (see Farbman, supra), and in general, I do not
believe that it is the government's business to know or even to inquire as to the intended use
of records. Once the records have been found to be available, the applicant should be able to
do with them as he or she sees fit. As stated by a renowned commentator, Professor Henry
H. Perritt, Jr., Professor of Law at the Villanova University School of Law:

"...most state statutes, like the federal FOIA, do not allow for
interest balancing or assessing the reason for access. The mere
fact that an individual or entity may obtain income from an
activity that serves a public purpose does not negate the public
nature of the activity. When a commercial publisher
disseminates public information, it is serving a public purpose -
the very purpose that is central justification for FOIAs"
[Should Local Governments Sell Local Spatial Databases
Through State Monopolies? 35 Jurimetrics Journal 449, 45,
Summer, 1995).

Similarly, it has been asserted that "Our democratic American Tradition has historically
supported policies and programs which foster the broad-based dissemination of public
information, for the benefit of all who properly apply it" (Principles of Government Sourced
Data, Commercial Dissemination and Responsible Information Handling, an Industry
Whitepaper prepared by the Real Estate Information Providers Association (REIPA), January
11, 1997). From my perspective, the commentary quoted above is consistent with and
supports the notion that an access statute, like the Freedom of Information Law, is intended
to remove barriers to the dissemination of government records and encourage the widest
possible distribution of those records.

In relating the foregoing to copyright, it is important, in my opinion, to review the
history and intent of copyright protection.

The basis of copyright is Article I, §8 of the United States Constitution, which
indicates the framer's intent:

"To promote the Progress of Science and Useful Arts, by
securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries."

In construing the "copyright clause", the United States Supreme Court has stated that its
purpose is as follows:

"The economic philosophy behind the clause empowering
Congress to grant patents and copyrights is the conviction that
encouragement of individual effort by personal gain is the best
way to advance public welfare through the talents of authors
and inventors in ‘Science and useful Arts'" [Mazer v. Stein,
347 U.S. 201, 219 (1954)].

At heart of copyright protection, therefore, is "personal gain", an economic incentive,
and several decisions support that principle. For instance, in National Rifle Ass'n v. Hand
Gun Control Federal, 15 F.3d 559, 561 (6th Cir. 1994), it was held that the use of mailing list
was fair use and noted that the scope of prima facie copyright protection is limited to uses of
a work that would undermine the incentive for creation [see also Sony Corp. v. Universal
City Studios, Inc., 464 U.S. 417, 429 (1984), which discussed the goals and incentives of
copyright protection]. In Twentieth Century Music Corp. v. Akin, [422 U.S. 151, 156
(1975)] it was determined that the "ultimate aim is by this incentive [securing a fair return for
author's creative labor] to stimulate artistic creativity for the general public good."

Unlike authors and creators, DOT needs no similar incentives. On the contrary, it is
that agency's statutory duty to prepare and preserve the kinds of records that you are seeking.
In a broad statement of his responsibilities, subdivision (21) of §14 of the Transportation Law
provides that:

"The commissioner shall continue to

(a) Keep in his office a map of the state and cause to be
delineated thereon all changes in the bounds thereof or of the
counties therein.

(b) Collect and preserve all maps, plans, drawings, field notes,
levels and surveys of every description made for the use of the
state and all engineering instruments belonging to the state."

As stated by Perritt:

"Such incentives are unnecessary for public agencies, since
these entities have a statutory duty to collect, organize and
disseminate information, such as that represented in spatial
databases" (Perritt, supra, 460).

Pertinent to an analysis of the intent of copyright is consideration of the application of
access law to records that come into the possession of government from private sources. In
considering the issue, the United States Department of Justice referred to the federal Freedom
of Information Act (5 U.S.C. §552) and its exemption analogous to §87(2)(d) of the Freedom
of Information Law in conjunction with 17 U.S.C. §107, which codifies the doctrine of "fair
use". Section 87(2)(d) permits an agency to withhold records that "are trade secrets or are
submitted to an agency by a commercial enterprise or derived from information obtained
from a commercial enterprise and which if disclosed would cause substantial injury to the
competitive position of the subject enterprise." Under §107, 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 provision 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)].

According to the Department of Justice, the most common basis for the assertion of
the federal Act's "trade secret" exception involves "a showing of competitive harm," and in
the context of a request for a copyrighted work, the exception may be invoked "whenever it is
determined that the copyright holder's market for his work would be adversely affected by
FOIA disclosure" (FOIA Update, supra). As such, it was concluded that the trade secret
exception:

"stands as a viable means of protecting commercially valuable
copyrighted works where FOIA disclosure would have a
substantial adverse effect on the copyright holder's potential
market. Such use of Exemption 4 is fully consonant with its
broad purpose of protecting the commercial interests of those
who submit information to government... Moreover, as has
been suggested, where FOIA disclosure would have an adverse
impact on 'the potential market for or value of [a] copyrighted
work,' 17 U.S.C. §107(4), Exemption 4 and the Copyright Act
actually embody virtually congruent protection, because such
an adverse economic effect will almost always preclude a 'fair
use' copyright defense...Thus, Exemption 4 should protect such
materials in the same instances in which copyright
infringement would be found" (id.).

Conversely, it was suggested that when disclosure of a copyrighted work would not
have a substantial adverse effect on the potential market of the copyright holder, the trade
secret exemption could not appropriately be asserted. Further, "[g]iven that the FOIA is
designed to serve the public interest in access to information maintained by government," it
was contended that "disclosure of nonexempt copyrighted documents under the Freedom of
Information act should be considered a 'fair use'" (id.) (FOIA Update, published by the Office
of Information and Privacy at the U.S. Department of Justice, (1983).

Again, DOT does not prepare the records for economic gain; it has no "commercial
interest" in so doing; on the contrary, the records are prepared because it is the agency's
statutory obligation to do so.

In short, it is questionable in my view whether DOT can claim copyright protection at
all.

In a letter to me, an attorney for DOT referred to other agencies, notably the State
Department of Health, which, according to his letter:

"...owns intellectual property rights, in the form of patents on
medical discoveries, devices, medications, and the like. DOH
holds these either directly, or through Health Research
Incorporated (HRI), a not-for-profit corporation, which is
wholly owned by the Health Department. The patents cover
intellectual properties developed by doctors and scientists at
DOH's Wadsworth Center, which conducts basic and applied
biomedical and environmental research; at DOH's Roswell
Park Cancer Institute, which conducts research into the causes,
treatment and prevention of cancer; and at DOH's Helen Hayes
Hospital, which conducts research in the fields of metabolic
disorders, musculoskeletal problems and rehabilitation
technology... HRI regularly retains counsel to obtain formal,
registered patent rights to intellectual property developed by
researchers at those facilities. Two of HRI's main functions
are, in fact ‘technology transfer' and ‘industrial partnering,'
which collectively involve the licensing of patents developed
by DOH facilities to manufacturers, medical facilities and
others for commercial use."

In my view, the activities described above are distinguishable from DOT's functions
regarding maps. The former involves research, "discovery", the creation of new medicines
and the like, all of which are carried out by the Department as a "player" or "competitor" in
marketplace. It acts, in essence, as if it were a commercial enterprise. As I understand DOT's
functions in relation to the records at issue, they are different; they involve the compilation of
factual data, not scientific research or discovery analogous to the activities in which the
Health Department is engaged.

In a related vein, Perritt and others have contended that the assertion of copyright
protections is contrary to public policy:

"Public entities need not give away their data without
recovering the cost of dissemination, but they must not set up
monopolies to enable themselves or favored contractors to earn
a profit from information collected and organized at taxpayer
expense or to finance particular value-added elements at the
expense of competitive access to those elements" (Perritt,
supra, 449-450).

He referred to the "temptation" to generate revenue, stating that:

"...it is natural for public agencies to suppose that they can ease
their budget pressures and serve their publics better by
appropriating some of the potential revenue stream; they can
sell their information. Beyond that, it is natural for them to
suppose that the quality of results and perhaps also the size of
revenue stream can be increased by ‘partnerships' with private
entities.

"Unfortunately, this is but a short step away from imposing
restrictions on what other vendors and distribution channels
can do. Most public agencies responsible for geographic
information have either a natural or de jure monopoly on the
information. Monopolists perceive that they can increase their
total revenue stream by setting prices higher than they would
be in a competitive market. Monopolists also are tempted to
extend their monopolies into downstream markets. Thus,
public agency decisionmakers, behaving like rational
monopolists in private sector, implement their partnership
aspiration by prohibiting private sector competition with their
chosen partners. The result is a state monopoly that limits
economic and technological benefits to a broad range of
potential distributors of the public information. As, as the
monopolies are extended downstream by exclusive
‘partnerships,' they block competition in a variety of rapidly
changing and diverse markets for value-added information
products" (id., 454).

Perritt added that:

"...it is important to distinguish between making information
and value-added features already developed with taxpayer
money for pursuit of agency missions available, and using new
money to finance things of use only to particular private sector
vendors. The former is not subsidization, it is allowing the
public access to something it already has paid for" (id., 456).

He also argued that an assertion of copyright may violate the First Amendment:

"When a monopoly is granted or asserted with respect to public
information through copyright or otherwise, the monopoly may
be enforced by denying access to the information or by
penalizing publication of the information. Punishing
publication or dissemination directly collides with the First
Amendment's protection of publishing and speaking, and
denying access indirectly collides with the First Amendment's
free speech and fee press protections" (id., 463).

Further, restricting the use of data by means of a copyright claim may diminish the
revenues that may be generated through commercial activity by private enterprises. In the
REIPA Whitepaper cited earlier, reference was made to the dissemination of real property
data, and it was suggested that:

"Every dollar invested by the government in data sets that are
shared with the public multiplies employment in the private
sector and fosters economic growth and additional tax revenue.
Providing easy access to real property data will generate
significant new tax revenues as a natural by-product to the free
market process. It is in the society's best interest for
government to encourage and facilitate a vibrant and healthy
information industry, where the private sector is investing in
new information technologies and applications, and where no
government agency or single private enterprise is allowed
monopolistic advantage" (REIPA, supra).

In sum, the assertion of copyright claims in the context of your inquiry is, in my
opinion, contrary to the intent of both the Freedom of Information Law and the Copyright
Act. Further, despite any increased revenue that DOT might derive via agreements based on
copyright, the absence of copyright may result in greater overall economic benefit to the
State, its residents and its commercial enterprises.

I hope that I have been of assistance. If you would like to discuss the matter, please
feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Town Clerk, Town of Clifton Park
Peter Shawhan
Bill Johnson