Cities cannot shift open records duties to contractors

Freedom of Information | Feature | January 18, 2007

NEWS MEDIA UPDATE   ·   WISCONSIN   ·   Freedom of Information   ·   Jan. 18, 2007


Cities cannot shift open records duties to contractors

  • Three municipalities violated the open records law by not allowing proper access to data held by contractors, a state appeals court ruled.

Jan. 18, 2007  ·   Three Wisconsin cities cannot evade their duties under the public records law by shifting their responsibilities to state contractors, a state appeals court in Madison ruled in a long-running battle about access to property record data.

A three-judge panel ruled that the villages of Sussex and Thiensville and the city of Port Washington violated the open records law when they refused to provide documents in the electronic version requested by WIREdata, a real estate information collection company.

WIREdata requested electronic copies of detailed real estate property records from the three municipalities in 2001. The cities directed WIREdata to the contractors who maintained the property records โ€“ Grota Appraisals for Sussex and Thiensville, and Matthies Assessments for Port Washington.

The companies used a program called Market Drive in combination with Microsoft Access to arrange the data into reports. When WIREdata sought the data from the contractors, they said they could not provide the data unless WIREdata paid large fees because the Market Drive program was copyrighted by Assessment Technologies, which is owned by the same man who owns Grota Appraisals.

When WIREdata sued the cities and contractors in state court to obtain the records, Assessment Technologies filed its own lawsuit in federal court.

A federal judge ruled against WIREdata in 2002, but a federal appeals court (7th Cir.) reversed the decision, saying Assessment Technologies had no ownership rights to the publicly collected data and was "trying to use its copyright to sequester uncopyrightable data, presumably in the hope of extracting a licensing fee from WIREdata."

The contractors subsequently provided the property information to WIREdata as PDF files, but a trial judge ruled that was insufficient in the Sussex case. A different judge, however, said that the PDFs complied with the Port Washington and Thiensville requests.

The appeals court rejected the argument that the open records law requires access only to the raw data that was entered into the program, which the cities said the PDF files provided.

"This inputted data, maintained at public expense in the Microsoft Access database, is as much a part of the public record as if it were written on paper property cards and organized and stored in a file cabinet," Judge Daniel P. Anderson wrote for the court.

The judges also dismissed the municipalities' argument that they should not be held responsible because they did not create or own the records.

"[P]ublic bodies cannot evade their responsibilities under the open records law by shifting a record's creation or custody to an independent contractor," the opinion stated.

However, while the trial judge in the Sussex case ordered the contractor to pay attorney fees for WIREdata, the appeals court held all three municipalities โ€“ not the contractors โ€“ responsible, saying state law and previous cases provided no basis for holding contractors responsible.

Jennifer Peterson, an attorney who filed a friend-of-the-court brief on behalf of the Wisconsin Newspaper Association and Wisconsin Freedom of Information Council, said the decision will likely make it easier for the press and public to obtain records requests from government bodies that have contracted out services.

"This case will have a residual effect on future requests because municipalities know they are ultimately responsible to comply with the open records law," she said. "They will not be able to send requesters elsewhere."

(WIREdata Inc. v. Village of Sussex, Requester's Counsel: Alan H. Deutch, Deutch & Weiss, LLC, Milwaukee, Wisc., Amicus Counsel: Jennifer L. Peterson, Godfrey & Kahn S.C., Madison, Wisc.) -- RG

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