VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

July 13, 2004, Richmond

The GIS subcommittee¹ began its meeting by recapping the discussions from its first meeting for the benefit of those interested parties who were not in attendance on June 9, 2004. Senate Bill 182 (Blevins, 2004), which was referred to the FOIA Council for study by the 2004 General Assembly, was introduced at the request of the City of Virginia Beach to protect GIS information from release under FOIA. At its first meeting, the GIS subcommittee agreed that SB 182 did not achieve the objectives of the city and the subcommittee would not recommend the bill in its current form. However, the issues raised were significant enough for the subcommittee to continue to meet. At this second meeting, the GIS subcommittee focused on the protection of (i) information given to local governing bodies by private utilities and (ii) the economic value of GIS generally. Mr. Wiley stated that the cost of creating and maintaining GIS is very high and the government ought to be able to recover some of these costs. He pointed to New York law that distinguishes between individual use and commercial use of GIS.

Mr. Moncure pointed out that GIS records are public records by definition, and he was therefore opposed to a complete exemption of GIS information from FOIA. He did, however, agree that there might be a middle ground to address the release of GIS information, such as setting fees for release of GIS. Mr. Moncure stated that he has trouble with identifying back users for the basis of release, as motive under FOIA is irrelevant to the request. Mr. Moncure suggested that the language in the technology trust fund found at § 17.1-276² be examined to see if it could be used as a model to resolve the GIS issues. Under the technology trust fund the clerks of court have the ability to recoup some of the costs of putting certain court records on-line.

The subcommittee next discussed the issue of copyrighting GIS information. A representative of the Office of the Attorney General indicated that copyright protection is not available for protecting fact; but compilations of fact are copyrightable. He noted, however, that commercial interests want the underlying data contained in GIS that cannot be copyrighted. The only way to protect secondary commercial use of GIS is through contract between the parties; but FOIA prohibits examination into motive for the request.

The subcommittee looked at the charges for GIS currently available under FOIA. A public body may charge on a pro rata per acre basis for the cost of creating topographical maps developed by the public body, for such maps or portions thereof, which encompass a contiguous area greater than 50 acres. It was noted that the difficulty with this language is that the terms "topographic" and "pro rata" are not defined and are therefore hard to understand.

The subcommittee discussed expanding current public safety exemptions in FOIA to include GIS. However, it was noted that while there was consensus for this approach, the applicable public safety exemptions are so narrowly tailored that including GIS would not achieve the desired result. It was suggested that George Foresman, Office of Commonwealth Preparedness, be contacted for his perspective.

Because of the divergent positions, the subcommittee felt that further discussion would not yield a result. The subcommittee decided the best way to move forward was for the City of Virginia Beach and other localities to work together on developing draft language to resolve their issues for the subcommittee's and others' review. The subcommittee directed that should draft language be proposed, a copy be sent to staff at the FOIA Council so that it can be posted on the FOIA Council website. In addition, Roger Wiley agreed to contact those localities that expressed difficulty in receiving data from utilities because of concern that this data could not be protected in light of FOIA.

The next meeting of the GIS subcommittee is scheduled for 10:00 a.m. on September 16 at the Division of Legislative Services, second floor of the General Assembly Building, in Richmond. The subcommittee agreed that if no drafts were offered, the subcommittee would not meet.

¹GIS subcommittee members Tom Moncure and Roger Wiley were present. David Anderson, the third subcommittee, was not in attendance as his term on the FOIA Council had expired.
²17.1-276. Fee allowed for providing remote access to certain records. Any clerk who provides electronic access, including access through the global information system known as the Internet, to nonconfidential court records or other records pursuant to §§ 17.1-225 and 17.1-226 may charge a fee established by the clerk or by the agency of the county, city or town providing computer support to cover the operational expenses of such electronic access, including, but not limited to, computer support, maintenance, enhancements, upgrades, and replacements. The fee may be assessed for each inquiry, upon actual connect time, or as a flat rate fee. If charged, the fee shall be charged each user, paid to the clerk's office, and deposited by the clerk into a special nonreverting local fund to be used to cover the operational expenses of such electronic access. In addition, the clerk may charge users a clerk's fee not to exceed $25 per month.