GIS and the Law

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GIS and the Law Powered By Docstoc
					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 5-14-3-9(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 5-14-3-9(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.”

                                  www.in.gov/pac
   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. 17262
__________
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)

                                 www.cfac.org
Issues: Similar to other cases presented here,
  except a 3rd party data creator was involved –
  Village said that the data was proprietary and
  copyrighted in the 3rd 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         Jasper      Pulaski
Bartholomew   Jefferson   Ripley
Cass          Jennings    Scott
Clark         Johnson     Shelby
Clay          Kosciusko   Spencer
Daviess       Lagrange    St. Joseph
Dearborn      LaPorte     Starke
Delaware      Madison     Tippecanoe
Dubois        Marion      Tipton
Fayette       Miami       Vanderburgh
Fountain      Monroe      Vigo
Grant         Noble       Wabash
Hamilton      Owen        Wayne
Harrison      Pike        Wells
Hendricks     Perry       Whitley            47
                                        Participating
Howard        Posey                       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?”