On 07/27/2017 12:23 AM, Brian May wrote:
As for legal use and permissions, always look to the state statutes
that specifies handling of public records requests. That is always
going to override anything at the county / local level. For example,
in Florida, the state statute says no agency within Florida can ask
for the reason of the request or even who is requesting the data
(although it has to be sent somewhere!). No agency can exert
copyright, etc. Any exceptions are spelled out in the statutes.
What would be great is a breakdown of each state listing any potential
restrictions spelled out in state statutes. The big restriction is
usually a state allowing a local agency (i.e. county) to exert
copyright over specific data. Some states have specifically targeted
GIS data as copyrightable by local agencies in an attempt at "cost
recovery" for GIS data. If there are no restrictions on data, then you
are wasting time asking for permission, etc at the local level.
And most states need a lawyer to interpret what the law means,
which may remain highly uncertain even after the interpretation.
In my case, the governing statute is https://www.dos.ny.gov/coog/foil2.html
Many GIS records, it turns out, are prepared under contract, and 87 2. (d)
specifically excludes records that 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". (The intention of the law was to protect
competitive
bidders for state contracts from having their proposals revealed to their
competitors prior to the close of bidding, and to protect trade secrets
disclosed to state regulatory agencies. That's not how it's worked out.)
Some state and county agencies have also tried to apply 87 2(f), which
excepts records that "if disclosed could endanger the life and safety of
any person". Post-9/11, that idea actually went somewhere - people
were convinced that if, for instance, New York City's enormous reservoirs
were mapped, the terrorists would poison them. (As if anyone with
a pair of eyeballs couldn't see where they are!) Railroads, power lines,
pipelines, and similar infrastructure were similarly defended.
Moreover, counties have, despite the statute, claimed that they are
compliant
with the state law when they merely permit records to be inspected and
single copies made, while claiming that copies that do not originate from
them are unlawful.
This has actually been tested in court, in County of Suffolk v
First American Real Estate Solutions.
https://www.rcfp.org/browse-media-law-resources/news/court-rules-copyright-maps-does-not-offend-open-records-law
is a summary.
Subsequent to that decision, the New York State Committee on Open
Government issued an opinion that the GIS records were required to be
open. https://docs.dos.ny.gov/coog/ftext/f15695.htm
As as result, the New York State GIS Clearinghouse began asking counties
for their cadastral records. To date, only seven counties (plus New York
City's five boroughs) have complied. Most of the others point to the fact
that the Committee on Open Government is not a court and cannot
render a final decision as to what is or is not acceptable compliance with
the Freedom of Information Law. The committee's opinion is merely
advising the county of the legal position that the State of New York
Department of State would adopt.
Given the murky nature of the law, I don't touch NYSGIS records
in general. An exception has been for the boundaries of public lands,
where the State extracted these from county GIS records and
republished them as a whole, asserting that the counties could not
restrict its notifying the public about the boundaries of its own lands.
Otherwise, I think that caution demands getting explicit permission
(with the letter requesting the permission reminding the official
of the requirements of the Freedom of Information Law and the
2005 opinion of the Committee).
Even that approach is not entirely free from risk. There's always
the possibility that the official who grants the permission lacks the
authority to do so. Given the amount of infighting that appears to
be taking place at all levels of government, who's to say?
Nevertheless, I think that if permission has been obtained,
our exposure is fairly minimal. We'd surely have a credible defense
of 'innocent infringement' if we can provide documentary evidence
that clearance was sought and obtained from an agency that we
had a good-faith belief was the owner of the data.
Without permission, at least in my area, we're subject to the shifting
winds of legal interpretation. Contrary to what programmers often
believe, the legal code very often means something other than
what it appears to say. The black-letter law says that government
agencies must make their records available at the cost of copying
(with a few reasonable exceptions made for privacy and security).
The case law is complex, and very few mappers are competent
to evaluate it. I surely am not!
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