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 FOIL-AO-15018

December 1, 2004

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 facts presented in your correspondence.

Dear

As you are aware, I have received your letter. Please accept my apologies for the delay in response.

You wrote that the Town of Otselic maintains a collection of historical items, including photographs that date from the late 1800's and early 1900's that serve as a "source of information of our past." One large collection has been put on a computer disk, and you indicated that you have the capability of copying the content of the disk. The Town Clerk, who also serves as archivist, "has expressed concern that making copies of the CD disk for the public would allow individuals to make photos and possibly make money on our photos after we have spent the money to acquire them" and "feels that this would violate our copyright." You have asked whether the Town has "copyright on old photos that we have purchased", whether "existing CDs of photographs [are] considered public records", and if you "have CD copying capability", whether you must comply with requests for CD copies."

I know of no judicial decision that focuses on the relationship between the Freedom of Information Law and the Copyright Act in this kind of situation or any similar series of facts. An attempt will be made, however, to respond to your questions. In this regard, I offer the following comments.

First, the CD’s in my opinion clearly fall within the coverage of the Freedom of Information Law. That statute pertains to agency records, and §86(4) 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."

Based on the foregoing, since the CD’s store information and are in possession of the Town, I believe that they constitute Town records subject to rights conferred by the Freedom of Information Law.

Second, 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. In consideration of the age and nature of the photographs, none of the exceptions to rights of access could, in my view, be asserted to deny access.

Third, 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, the State's highest court, 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. In short, once records are made available under the Freedom of Information Law, I believe that the recipient may do with the records as he or she sees fit.

I note that in a decision rendered in 2001, the Life Insurance Council of New York attempted to support a denial of access to certain records maintained by the State Department of Insurance that had long been available to the public because the recipient of the records placed the records on the internet. The court rejected the argument and determined that the records remained accessible and that there was no justifiable reason for prohibiting their placement on the internet [Belth v. New York State Department of Insurance, 733 NYS2d 833].

Next, that the Town might have expended public monies to purchase the photographs does not, in my opinion, affect the public’s right of access to them. There are numerous instances in which government agencies expend significant amounts to acquire or perhaps develop records. For instance, municipalities often pay consultants thousands of dollars to prepare reports of various kinds. Despite the amount spent, an agency may charge only the fees permitted by the Freedom of Information Law when copies are requested. The photographs, like all other records maintained by or for the Town, are subject to rights of access, and the fee for copies is restricted by §87(1)(b)(iii) of the Freedom of Information Law to twenty-five cents per photocopy up to nine by fourteen inches, or, in the case of records that cannot be photocopied, such as computer tapes or disks, the actual cost of reproduction. I note, too, that the Court of Appeals, the state’s highest court, determined years ago that "Meeting the public’s legitimate right of access to information...is fulfillment of a governmental obligation, not the gift of, or waste of, public funds" and that access cannot be conferred "on a cost-accounting basis" [Doolan v. BOCES, 48 NY2d 341, 347 (1979)].

Lastly, while I am not an expert with respect to the Copyright Act (17 U.S.C §101 et seq.), it is important in my opinion to consider the history and intent of copyright protection. The basis of copyright is Article I, §8 of the United States Constitution, which indicates the framers’ 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)].

The only decision of which I am aware concerning the relationship between the Freedom of Information Law and a claim of copyright protection by an agency involved tax maps prepared by Suffolk County that were used by a private company in its commercial products [County of Suffolk v. First American Real Estate Solutions, U.S. Court of Appeals, 2nd Circuit, 261 F.3rd 179 (2001)]. The court in that case reviewed the elements necessary to claim copyright protection and found that:

"To allege a claim of copyright infringement, Suffolk County must claim that substantial similarity exists between the defendant’s work and the protectible elements of its work. To be ‘protectible’, these elements must be original. See Feist Publ’ns v. Rural Tel. Serv., Co., 499 U.S. 340, 345-49 (1991) (holding that a compilation of facts does not qualify for copyright protection unless it possesses sufficient originality, that is, ‘it possesses at least some minimal degree of creativity’)..."

As I understand the situation, the Town did not take or prepare the photographs; it acquired them from other sources. Further, the disks apparently contain only photographs. If that is so, and there is no originality or creativity on the part of the Town, it does not appear that the photographs would be subject to copyright protection. If the photographs were included in a work with original text, description or interpretation, for example, those additions involving originality and creativity might bring the work within the coverage of copyright protection. However, again, the photographs alone would not appear to qualify for protection under the Copyright Act. Moreover, even if a work does qualify for protection under the Copyright Act, according to the decision cited above, the "protectible elements" of the work must be used by another person in a manner involving "substantial similarity" that would infringe upon the copyright. No such use has apparently occurred.

In sum, I believe that the disks and their contents constitute "records" that fall within the scope of the Freedom of Information Law. Further, it does not appear that the photographs would qualify for protection under the Copyright Act.

I hope that I have been of assistance. Should any further questions arise, please feel free to contact me.

RJF:tt