Posted by: Patricia Salkin | April 21, 2008

NY Court of Appeals Addresses Disclosure of Electronic Public Land Records

With the growing use of GIS software and the need to populate the systems with data, questions have arisen in some states regarding public access to this information.  In addition, land records and maps possessed by county clerks have also been the subject of public access battles.  In both instances, these disagreements most often stem from the requester of the information, who, is frequently a commercial enterprise seeking to gain access to already assembled public data and information that can then be repackaged and used for other commercial purposes.  Typically, local governments who may have invested significant resources into the data collection, are loathe to release the information.  However, state access to government laws (e.g., Freedom of Information Laws) will require the release of the data where it is a record that does not contain information protected under privacy laws and where the information does not present homeland security risks.

 

In this case, Data Tree, a company that provides on-line land records to its customers, sent a Freedom of Information Law request to a county clerk requesting various public land records from 1983 to present, and further requesting that the records be provided in the electronic format currently maintained by the county, or in TIFF images, CD-ROM or any other electronic storage medium maintained by the county.  If such was not available, the Company requested the data on microfilm.

 

After the Clerk failed to respond within five days, which constitutes a denial under State law, Data Tree took an administrative appeal.  The County Attorney denied the request on three grounds: 1) the request would require re-writing or reformatting of the information which is not required; 2) disclosure would constitute an unwarranted invasion of privacy due to the volume of the records and the commercial nature for which it is sought; and 3) the records are available for copying and downloading from computer terminals at the Clerk’s office. Both the trial court and the appellate division upheld the denial.  The Court of Appeals reversed.

 

The Court of Appeals noted that burden of proof that a record would fit within an exception to the record disclosure requirements (e.g., that it would cause an unwarranted invasion of privacy) rests with the Clerk, and that here, the Clerk failed to articulate how this exception would apply. Further, the Court said that Data Tree’s commercial motive for the record request is irrelevant and constitutes an improper basis for denial.  The Court did note, however, that an invasion of privacy consideration is relevant where the requestor would use the data for fundraising purposes (which is not allowed), and that where records contain private information such as social security numbers and dates of birth the government may be required to redact such information rather than rejecting the request.  The court remitted the matter to determine whether the records contained any private information and whether such could be redacted.

 

Further, the Court agreed that the government is not required to make records available in a format that such information is not stored. While the state statute does not differentiate in the format of the record (e.g., paper or electronic), the government is not required to compile data in a preferable format to the requestor if the government does not maintain the data in that medium. Where the records are maintained electronically by an agency and are retrievable with reasonable effort, the agency would be required to disclose them electronically if so requested. The Court of Appeals noted that questions of fact existed as to whether the Clerk could comply with the electronic data request, and that this matter should also be remitted to the Supreme Court.  

 

Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 849 N.Y.S.2d 489 (12/18/2007).

 

The opinion can also be accessed at:

http://www.nycourts.gov/ctapps/decisions/dec07/173opn07.pdf

 

For an article that addresses access to data from government geographic information systems at the federal, state and local levels, see: http://papers.ssrn.com/abstract=1027451


Responses

  1. I love this blog! As GIS Coordinator to the town, the information contained here is invaluable to both my office and the town clerk as our FOIL office with whom I will share the information. I look forward to future emails, and have subscribed to your service. Thanks so much.

  2. Assuming that the municipality GIS is based primarly on land records, perhaps a private company will have more resources to create a sophisticated information system that links the existing county data to other data created or obtained by the private company. In this way, it would not be reselling the county’s work but would be offering an enhanced product that is beyond the financial resources of a municipality to create.


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