In some cases, reporters’ quests for data require that they also have access to specialized
                                  software developed by or for a government agency. This can lead to problems if
                                  software is not considered a public record in that state.

Of all the answers to electronic records questions, perhaps the least consistent are rulings addressing release of software. Nearly every state allows agencies to keep information confidential if it qualifies as a “trade secret.” The definition of a trade secret, however, varies from state to state and does not necessarily apply to software.

Government agencies usually acquire software in one of three ways. First, the state may purchase software from a commercial vendor.

With newer, post-Y2K computers, many government agencies are using standard database systems such as SQL server or Oracle. Second, the state may develop the software itself. Third, the state may contract with an outside party to create specialized software. Police departments often purchase specialized software for crime analysis, for example.

Most states that have chosen to regulate access to software explicitly exempt it from their public records statutes, regardless of whether it is a commercial or an agency-written program.

Minnesota permits an agency to copyright or patent a computer software program or components of a program created by that government agency to make it exempt as a trade secret.

A reporter for the Minneapolis Star-Tribune had to pay a $200 programming fee for county payroll data. The reporter requested a copy of the program to see if the cost was justified. The county refused on the grounds that software is not a public record. Without the program there was no way for the reporter to know if the charge was fair.

North Dakota requires agencies to copyright or patent agency-created programs before withholding them.

A few states also exempt related material. In Illinois, an agency may withhold “operating protocols, computer program abstracts, file layouts, source listings, object modules, load modules, user guides, documentation pertaining to all logical and physical design of computerized systems, employee manuals,” and other information. This exemption creates a significant barrier for reporters for whom raw data is useless without the appropriate documentation.

Oregon and Idaho allow an agency to withhold computer programs, but not mathematic and statistical formulas that manipulate computer data. Such language allows public scrutiny of how the agency conducted its search where accuracy and fairness of the program might be at issue.

Mississippi takes a unique tack. It places the burden on a software supplier to get a court order prohibiting release of a program. The agency is required to notify the supplier of a request, but if the software licensor does not respond after a waiting period, the government must release the software.

Trade secrets “developed by a college or university under contract,” which may include software, are exempt from disclosure altogether.
A few states limit an agency’s authority to withhold software. For example, Florida allows an agency to keep software confidential only if it was “obtained by an agency under a licensing agreement which prohibits its disclosure and which software is a trade secret.” The statute also exempts “sensitive software” developed by an agency.

A few statutes allow collection of additional fees for the release of some software programs developed at government expense. These statutes mimic GIS concerns about private entities receiving public “subsidies.”

Minnesota permits an agency that develops software “with a significant expenditure of public funds” to charge a fee that includes a share of the “actual development costs of the information” if the software is used to access data that has commercial value.

The Texas Attorney General suggested that agencies could withhold programs on a case-by-case basis if release would pose a security risk, the programs qualify as trade secrets, or the material would be exempt from discovery in a civil lawsuit.

The Nevada Attorney General adopted a broad exclusion for computer programs by finding that they do not qualify as public records.

The attorney general’s office in Florida has issued several opinions that address software issues. It considers the purpose of the software when determining whether it is a public record. One computer program developed by an agency to perform financial functions was a public record.

Another program that processed voter registration data was exempt as “sensitive” data processing software. Electronic voting software obtained under a license agreement was exempt as a trade secret. And copyrighted software obtained from a private company was available for “examination and inspection purposes only.”

Data processing software is now included under Florida’s definition of a public record.