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FOIL-AO-15695

December 19, 2005

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

We are in receipt of the copy of your October 26, 2005 response to Ms. Carolyn Foley’s appeal of a denial of her request for GIS data that is reflected on the Nassau County website. Although it was not requested, we offer the following opinion regarding a government claim that GIS material may be protected by copyright.

While we are not experts on the subject of copyright, based on the only judicial decision of which we are aware, Nassau County GIS data may not be subject to a copyright claim. In that case, County of Suffolk v. Experian Information Solutions, Inc., it was initially determined that the County could properly claim copyright protection for the tax maps that it prepared (U.S. District Court, SDNY, 99 Civ.8735, May 15, 2000). On reargument, the District Court reversed its prior holding and found that such a claim could not be made (U.S. District Court, SDNY, July 21, 2000).

On appeal, the Second Circuit Court of Appeals held that in general, New York State, local government, and Suffolk County may claim a copyright protection under the Copyright Act. In contrast to the Federal Government, which is prohibited from obtaining copyright protection for its works (17 USC §105), the Second Circuit found that "the Copyright Act is silent as to the rights of states or their subdivisions" and that "[b]y specifying a limitation on ownership solely against the federal government, the Copyright Act implies that states and their subdivisions are not excluded from protection under the Act." County of Suffolk v. First American Real Estate, 261 F.3d 179, 187 (2nd Cir. 2001).*

Due to insufficient evidence, however, the Second Circuit remanded the matter concerning whether the maps were sufficiently original and creative to qualify for copyright protection, or whether the content and the form of the maps were dictated by state law and regulation and thus not subject to copyright protection. Further, the Second Circuit opined, it would be for the District Court to determine whether the tax maps were in the public domain from inception, and thus outside the coverage of the Copyright Act. To make this determination, the District Court would have to consider, most importantly, whether the County needed the economic incentive of the Copyright Act to create the maps, or whether it had adequate incentives or obligations to produce their respective materials.

The Second Circuit Court then turned to the issue of whether the Freedom of Information Law continued to impose an obligation on the County to make the maps available for public inspection and copying, and confirmed that the County’s responsibility to make all records available for public inspection and copying applied to maps which may be protected by copyright. The Court further opined that:

"Suffolk County also cannot restrict the subsequent dissemination of its work completely. First, the Copyright Act ‘protects only the form of expression and not the ideas expressed.’ New York Times Co. v United States, 403 US 713, 726 n. *, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (Brennan, J., concurring); .... Second, the fair use doctrine, codified in section 107 of the Copyright Act, strikes a balance between the rights of a copyright holder and the interest of the public in disseminating information.... The fair use doctrine ‘permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.’ Campbell v. Acuff-Rose Music, Inc., 510 US 569, 577, 114 S.Ct. 1164, 127 L.E.2d 500 (1994) (internal quotation marks omitted)." Id., at 193.

Following remand to the District Court, litigation was settled, and the court, therefore, never determined the issue of whether the maps were sufficiently original and creative to validly claim copyright protection.

Conditioning the release of copies on contractual agreements governing future treatment of the copies, in our opinion, would thwart the very purpose and intent of the Freedom of Information Law. It is our belief that when materials are accessible under the Freedom of Information Law, upon receipt of the appropriate fee, they must be released to the applicant without restriction. Accordingly, in keeping with the Second Circuit decision in County of Suffolk, we advise that it is permissible for the County to notify the applicant that the materials may be subject to copyright protection, but that the County cannot condition access on a contractual obligation pertaining to redisclosure of records accessible to any member of the public.

Finally, we note that your letter advises Ms. Foley that there is a $45 cost of reproduction of the material onto a compact disc.

With respect to clerical or other costs associated with responding to a request for copies of records, the specific language of the Freedom of Information Law and the regulations promulgated by the Committee on Open Government indicate that, absent statutory authority, an agency may charge fees only for the reproduction of records. In addition to §87(1)(b) of the Law, the regulations state in relevant part that:

"Except when a different fee is otherwise prescribed by statute:
(a) There shall be no fee charged for the following:
(1) inspection of records;
(2) search for records; or
(3) any certification pursuant to this Part" (21 NYCRR 1401.8)."

Further, §1401.8(c)(3) states in relevant part that "the actual reproduction cost...is the average unit cost for copying a record, excluding fixed costs of the agency such as operator salaries."

Based upon the foregoing, we believe that a fee for reproducing electronic information would involve the cost of computer time, plus the cost of an information storage medium (i.e., a computer tape or disk) to which data is transferred.

Lastly, although compliance with the Freedom of Information Law involves the use of public employees' time, the Court of Appeals has found that the Law is not intended to be given effect"on a cost-accounting basis", but rather that "Meeting the public's legitimate right of access to information concerning government is fulfillment of a governmental obligation, not the gift of, or waste of, public funds" [Doolan v. BOCES, 48 NY 2d 341, 347 (1979)].

Thank you for your consideration of these issues. A copy of this opinion will be forwarded to Ms. Foley.

Sincerely,

Camille S. Jobin-Davis
Assistant Director

CSJ:tt

cc: Carolyn K. Foley