FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
13, 2004, Richmond
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.
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
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.
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.
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.
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.
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.
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
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.