A Guide to Handling
FOIA Requests for GIS Data
Prepared by the FOIA Council in conjunction with the
Virginia Information Technologies Agency
What is a public record?
Any writing or
recording in any format prepared by, owned by, or in the possession of a public
body or its officers, employees, or agents in the transaction of public
business.
How should GIS data be treated?
Generally, GIS
data is a public record that includes location information and should be
treated like any other public record. GIS
data can include shapefiles, geodatabases, databases, text files, photographs,
imagery, etc.
Does GIS data need to be disclosed?
Yes, the default
rule under FOIA is that all public records must be disclosed upon request
unless there is an exclusion that allows the record to be withheld. One must always review the record’s contents
and context to determine if any part of it should be excluded. If the record is exempt under FOIA, that
means that the custodian can either hold or release the record in his or her discretion,
unless some other law prohibits its release. A full list of exclusions is beyond the scope
of this guide, but the following exclusions may apply to GIS data:
·
Records
relating to public safety, which includes critical infrastructure information,
cybersecurity, antiterrorism, and other related records. Subdivision 14 of § 2.2-3705.2.
·
Subscriber
data, which for the purposes of this subdivision means the name, address,
telephone number, and any other information identifying a subscriber of a
telecommunications carrier, as well as information collected by a local
governing body in accordance with the Enhanced Public Safety Telephone Services
Act. Subdivisions 6 and 7 of § 2.2-3705.2.
·
Criminal
investigative files relating to a criminal investigation or prosecution and the
identity of any victim, witness, undercover officer, or informant. Subdivisions A 2 a, A 2 j, and A 3 of § 2.2-3706.
·
Records
containing information on the site specific location of rare, threatened,
endangered or otherwise imperiled plant and animal species, natural
communities, caves, and significant historical and archaeological sites. Subdivision 10 of § 2.2-3705.7.
·
The
Virginia Base Mapping Program’s Orthoimagery product, which has an exemption
from FOIA in Item 84.10B of the Commonwealth’s Appropriation Act (Acts of
Assembly of 2019, c. 854).
·
Personally
identifiable information and medical information, which are excluded in several
instances. See, e.g., the various exemptions for health and social services
records in § 2.2-3705.5.
Might
some GIS data be prohibited from release?
While FOIA exemptions
permit custodians to withhold OR release records at their discretion, other
sections of the Code and the Appropriation Act can prohibit the release of
certain data. While a comprehensive list
of prohibitions is beyond the scope of this guide, as one example, certain tax
information is prohibited from release under Code § 58.1-3 (but note that
matters on public roll books, such as real estate assessments, are still public).
If you are unsure whether a particular
record is prohibited from release, consult your attorney.
What is the nature of the GIS records request?
Does
the requested record already exist?
If the requested record
already exists, then release it as required.
If the record does not exist, then there is nothing to release and no
requirement to create a new record in response to a FOIA request. Specifically, subsection D of § 2.2-3704
provides that “no public body shall be required to create a new record if the
record does not already exist. However, a public body may abstract or summarize
information under such terms and conditions as agreed between the requester and
the public body.”
What
is the difference between being required to provide information (in this case
GIS data and/or a generated map) and creating a new record or providing a GIS service?
As previously stated,
GIS data should be treated like any other public record, and if it exists, it should
be provided as required. As quoted
above, FOIA also states that a public body may abstract or summarize
information. Additionally, subsection G
of § 2.2-3704 provides that “The excision of exempt fields of information from
a database or the conversion of data from one available format to another shall
not be deemed the creation, preparation or compilation of a new public record.” Therefore, if a public body already has the
GIS data and the software to produce a requested map, then generating that map
is the conversion of data from one format to another, and not the creation of a
new record, and is required of the public body.
However, creating new data to generate a requested map is not required under
FOIA. Similarly, a public body would not
have to write or buy new mapping software or combine different databases in
ways it never had before. Such instances
would be equivalent to creating new records and providing GIS services, which
are not required under FOIA.
Each case must be
addressed on its own facts. The
conclusion reached about whether a request is for new or existing records may
vary to the extent that public bodies use GIS for different purposes, use
different GIS software, and have different GIS data. It is the decision of the public body whether
they want to provide a GIS service beyond the requirements of FOIA.
How should a request be handled?
What
if the public body’s GIS data has portions that are excluded (exempt) or
prohibited from release and portions that are not?
Under FOIA, if a
record contains portions that are excluded and portions that are not, you may
only withhold the portions that are exempt or prohibited from release. The nonexempt portions must be released upon
request.
What
if the public body is asked to provide GIS data that they have but did not
create?
Under FOIA,
barring an exemption, the public body must release the data. However, notifying the requester that the
data is maintained by and more current from another source, and that they
should also contact that public body to request the data, is recommended.
Is
GIS data that is subject to copyright handled differently?
In 1982, the Virginia
Attorney General addressed the issue of copyright and disclosure in the context
of topographic maps created by a county, opining that FOIA
requires that the maps you refer to be made available for
public inspection and allow the county to make reasonable charges for copying
and search time expended in the supplying of such records. The U.S. copyright laws
give the county, as owner of the copyright, the exclusive right to reproduce
such maps, thereby prohibiting reproduction of the maps by anyone other than
the county without its consent.[1]
Applying the
reasoning of this opinion to other GIS records, the rule would be that GIS
records produced and copyrighted by a public body must be made available under
FOIA, but any copyright infringement would be addressed under copyright law.
A 1998 opinion of
the Attorney General addressed the issue of copyright held by third parties, in
the context of the state song competition.
The Attorney General opined that
the
copyrighted nature of a work does not preclude reproduction and release in
response to a Freedom of Information Act request or other activity within the
exclusive rights granted under the Copyright Act if the copyright owner has
given his express or implied consent or if the activity constitutes a fair use
of the work.[2]
Following
that opinion, we recommend that if you receive a request for public records
that you have in your possession in the transaction of public business but
those records are subject to another party’s copyright, you take the following
actions:
·
Provide one copy to the requester as required by
FOIA (presuming there is express or implied consent, or the release constitutes
a fair use under copyright law);
·
Notify the requester that the record(s) are subject
to the other party's copyright;
·
Notify the copyright holder of the request and your
reply; and
·
Keep documentation of the request, your reply, and
the notifications you sent.
For other questions
about copyright generally, or specific questions about how to handle particular
records, please consult your attorney.
Is
GIS data that is subject to a licensing agreement handled differently?
It has come to the
Council’s attention that sometimes companies will provide GIS data to public
bodies, but they do so subject to licensing and nondisclosure agreements. If there is an exemption that applies to the
GIS data in question, then the public body may agree to exercise that exemption
to withhold that GIS data so long as the exemption applies. If there is no exemption, however, then the
public body will have to provide the records upon request as required under
FOIA. Generally, a nondisclosure agreement by itself
cannot act as a FOIA exemption, because the statutory access rights of citizens
and the media under FOIA cannot be taken away by contracts to which they are
not parties.
What
are acceptable charges?
FOIA provides the
general rule that a public body may make reasonable charges not to exceed its
actual cost incurred in accessing, duplicating, supplying, or searching for the
requested records. Remember that FOIA
allows for the recovery of costs incurred in providing public records, NOT
revenue generation. Further detailed
guidance regarding charges for the production of records is provided in a
separate document entitled “Taking the Shock Out of FOIA Charges: A Guide to
Allowable Charges under the Freedom of Information Act.”
There
is a special provision for charges related to topographic maps in subsection F
of § 2.2-3704:
“The public body
may also make a reasonable charge for the cost incurred in supplying records
produced from a geographic information system at the request of anyone other
than the owner of the land that is the subject of the request. However, such
charges shall not exceed the actual cost to the public body in supplying such
records, except that the 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.”
Additional questions?
Please
contact the FOIA Council if you have specific questions:
Telephone:
(804) 698-1810
Toll-Free:
1-866-448-4100
Email: foiacouncil@dls.virginia.gov
Fax: (804) 698-1899
Website:
http://foiacouncil.dls.virginia.gov
Pocahontas
Building, 10th Floor
900
East Main Street
Richmond, Virginia 23219
Last updated July, 2019.