John Milburn and Jim Sparks 17 February 2009

1. To establish a shared awareness of legal outcomes that may impact GIS in Indiana (Jim) 2. Explore the question: “If IGIC performs the role of intermediary between stakeholder entities is it necessary to strike local government copyright of GIS data from APRA for the IndianaMap to move forward?” (John)

Federal and State Laws, Opinions, and Case Law

 Ensures public access to U.S. government records  Presumption of disclosure  Enforceable in court  Applies only to federal agencies  Each state has its own public access laws

 “Public records” are broadly defined: can be summarized as “any material that is created, received, retained, maintained or filed by or with a public agency.”  The Indiana Court of Appeals has added to this definition any material created for or on behalf of a public agency. Knightstown Banner, LLC v. Town of Knightstown, 838 N.E.2d 1127 (Ind. Ct. App. 2005).  "Electronic map" means copyrighted data provided by a public agency from an electronic geographic information system.  An agency must make reasonable efforts to provide a copy of electronic data to a person if the medium requested is compatible with the agency’s system.

 Declared confidential by state statute  Required to be kept confidential by federal law  Declared confidential by rule adopted by Indiana supreme court (Administrative Rule 9)  Social security number contained in the records of a public agency

 Attorney work product  Personnel file information, except for information that must be disclosed  Inter or intra-agency deliberative material, which is expression of opinion and is communicated for the purpose of decision making

 (11) Computer programs, computer codes, computer filing systems, and other software that are owned by the public agency or entrusted to it and portions of electronic maps entrusted to a public agency by a utility.

 (19) A record or a part of a record, the public disclosure of which would have a reasonable likelihood of threatening public safety by exposing a vulnerability to terrorist attack.

 Complaint alleged that the City of Berne Stormwater Utility Board (“Board”) violated the APRA by failing to provide a copy of an electronic map. July 22, 2005 (Public Access Counselor Advisory Opinion)  Board’s reasons for not providing data: ◦ It was expensive to create ◦ Could pose a threat to public safety ◦ Contains data entrusted to a public agency by a utility

 “APRA is to be liberally construed.”  “It is clear that information from an electronic map is a public record”  “If an agency denies the disclosure of a record or a part of a record the agency or the counterterrorism and security council shall provide a general description of the record being withheld and of how disclosure of the record would have a reasonable likelihood of threatening the public safety. IC (d).”

 “Merely stating that the electronic map includes data regarding utilities does not bring the record within section 4(b)(11).”  “… the Board has not provided the explanation required under IC (d), which states how disclosure of the record would have a reasonable likelihood of threatening the public safety.”  “For the foregoing reasons, I find that the City of Berne Stormwater Utility Board did not comply with the Access to Public Records Act.”

 Local agencies may charge only the fee on a schedule adopted by the fiscal body.  May not exceed the actual cost for providing a copy of the public record.  Actual cost is the cost of the paper and per page cost for use of the equipment.  APRA’s general provisions on fees are superseded by a specific statute allowing higher fee.

 (j) A public agency may charge a fee for providing an electronic map that is based upon a reasonable percentage of the agency's direct cost of maintaining, upgrading, and enhancing the electronic map plus direct costs.  (k) The fee may be waived for non-commercial uses, including (1) Public agency program support. (2) Nonprofit activities. (3) Journalism. (4) Academic research.

Case Law: Copyright, Downstream Restrictions, Copy Cost, Exemption from FOILs

SUPREME COURT STATE OF CONNECTICUT June 21, 2005 __________ S.C __________ DIRECTOR, DEPARTMENT OF INFORMATION TECHNOLOGY, TOWN OF GREENWICH, Plaintiff-Appellant, v. FREEDOM OF INFORMATION COMMISSION and STEPHEN WHITAKER, Defendants-Appellees.

 Whitaker requested GIS data from town  Town denied request because: 1.Trade secrets were exempt from disclosure 2.Provision would compromise public safety and system security  State Supreme Court affirmed the judgment of the trial court to order the plaintiff (Town of Greenwich) to provide Whitaker copies of data from the town’s GIS.

Facts:  Microdecisions compiles and resells real estate data.  The Collier County property appraiser creates such data.  Microdecision asked for a copy.  Skinner refused to permit Microdecision’s unfettered use of the maps, claiming federal copyright, and required a royalty payment for commercial use.

Issue:  Whether a county appraiser may require a prospective commercial user to first enter into a licensing agreement. “We conclude that he may not. For this reason, we …enter judgment for Microdecisions, Inc.” -District Court of Appeal of Florida, Second District, Judge Northcutt (December 1, 2004)

 The District Court concluded that First American may freely copy and distribute County's official tax maps and that Suffolk County may not prevent First American from doing so. (July 21, 2000)  United States Court of Appeals for the Second Circuit: We hold that New York State's FOIL does not abrogate Suffolk County's copyrights. We therefore vacate the judgment [of the District Court].(July 25, 2001)

 Issue: Can Horry County restrict the downstream commercial distribution of public information pursuant to the copyright law.”  Conclusion: Yes! (March 5, 2008)

 Only 13 of California's 58 counties currently limit access by charging more than the cost of reproduction.  Santa Clara was charging over $100,000.  “County does not dispute that the various data elements are public records.”

 Court: federal copyright did not permit the county to deny a valid request or restrict downstream use.  The court also turned aside attempt to avoid releasing the records by getting them designated "Critical Infrastructure Information.”  Santa Clara County must make its digital basemap public at minimal cost and without restrictions on subsequent use. - Superior Court for Santa Clara County (May 18, 2007)

Issues: Similar to other cases presented here, except a 3 rd party data creator was involved – Village said that the data was proprietary and copyrighted in the 3 rd parties Market Drive software. Findings:  The Court acknowledged that there was no copyright restriction on WIREdata receiving a simple, raw electronic version of the database.

Findings on other issues:  The Court acknowledged that there was no copyright restriction on WIREdata receiving a simple, raw electronic version of the database.  “Raw” GIS data collected by counties is in the public domain  Counties cannot “hide behind” their vendor when this data is requested  At least in Wisconsin, “...the Court confirmed that an agency cannot make a profit on its response to an public records request.”

IGIC, APRA, and the IndianaMap

Ask the question - “If IGIC performs the role of intermediary between stakeholder entities is it necessary to strike local government copyright of GIS data from APRA for the IndianaMap to move forward?”

Definition of Intermediary - Messenger - Mediator Definition of Stakeholders - Governmental and nongovernmental entities that generate framework data and/or perceive benefit from the integration of local framework data into the IndianaMap

IGIC hasn’t always filled the role of intermediary - Lack of GIO to navigate state government - Reliance on IndianaMap as mediator instead of members - One-sided communications to stakeholders instead of dialog - Lack of diversity within Board of Directors, few (or no) members with legal, political, communication or social science backgrounds attend meetings - Focus on external forces that the Board can’t directly affect which complicate implementation of IndianaMap instead of addressing internal issues which hinder implementation. - Unspoken assumption that the state will have to step in and demand local data and there’s very little IGIC can do to change the minds of locals - Reluctance to delve into politics, indeed politics is seen as the problem

Reasons ‘to’ strike local copyright from APRA - Simplifies integration into the IndianaMap - Creates efficiencies for government agencies - Inefficiencies created by nonparticipation could lead to harm, missed opportunities and increased costs at the local level - Local GIS data is public information, public as society at large

Reasons ‘not’ to strike local copyright - Because local GIS data is public data, public defined as the citizens of the county that created and maintains it - Local elected officials represent the public, if they deny a data request then its assumed the denial is from the pubic - Doesn’t foster a cooperative relationship - While the IndianaMap may not have GIS data from ‘all’ counties it will be more stable

- GISP Code of ethics, “Strive to do what’s right, not just what’s legal.” Right for who? - If elected officials don’t know what’s best for the public then who does? GIS professionals? We may know our discipline but very little about the social, political and economic issues that affect the public welfare. - Welfare of public in local jurisdiction vs. welfare of public as a whole

- Navigate the ‘politics is the problem’- ‘politics is the solution’ contradiction - Using diplomacy and knowledge of the limitations of government entities to bridge the institutional gaps that exist between and within those entities in ways the IndianaMap isn’t capable of doing

- No GIO to navigate state government so negligible coordination between IDHS and other state entities - Limited outreach towards local government from IGIC in tandem with grant release - Subgrant goes out to local EMA who may or may not know anything about GIS and probably knows very little about technical aspects of WMS

- 12 out of 92 counties participate Compare that to the 2007 grant which currently has 47 counties agreeing to provide data to the IDHS (and more will probably join)…

- In 2007 there was a GIO to navigate state government and form cooperative relationships between entities wanting local GIS data - There was a data integration plan - Information regarding the limitations of both state and local government were brought to the IGIC board of directors who decided to try and work around the limitations of both

- IGIC provided information to the GIO regarding the political climate between state and local government as well as information on how local governments work - IGIC ran interference for Roger Koelpin by giving heads up to local IT/GIS and encouraging them to work with their EMAs - IGIC ran an intensive schedule of road shows to inform and educate locals

- A data request letter was sent to County Commissioners that requested only four data layers and allowed multiple methods of delivery, giving locals more flexibility -The request was made by multiple entities (IDHS, DLGF, IGIC and the GIO) via the Governors office - Counties took the 2007 request much more seriously and 47 have counties decided to participate as opposed to 12 in the 2006 subgrant

Hypothetical Situation – A flood event similar to the 2008 event occurs after counties participating in the IndianaMap have had their data integrated

██ Public Assistance ██ Public and Individual Assistance ██ Individual Assistance ██ Public Assistance (Category B) limited to direct Federal assistance ██ Individual Assistance and Public Assistance (Category B) limited to direct Federal assistance

Adams Bartholomew Cass Clark Clay Daviess Dearborn Delaware Dubois Fayette Fountain Grant Hamilton Harrison Hendricks Howard Pulaski Ripley Scott Shelby Spencer St. Joseph Starke Tippecanoe Tipton Vanderburgh Vigo Wabash Wayne Wells Whitley Jasper Jefferson Jennings Johnson Kosciusko Lagrange LaPorte Madison Marion Miami Monroe Noble Owen Pike Perry Posey 47 Participating Counties

- If the perception is that the IndianaMap is in the publics best interest then this should be communicated to the public - Comparative studies (response times, time it takes to process FEMA applications, etc) of local jurisdictions providing data to the IndianaMap and those not - If the public in some jurisdictions still doesn’t want to participate it may be in IGICs best interest to leave them alone

“If IGIC performs the role of intermediary between stakeholder entities is it necessary to strike local government copyright of GIS data from APRA for the IndianaMap to move forward?”