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Journalists often struggle to gain access to GIS data. From the Summer 2005 issue of The News Media & The…

Journalists often struggle to gain access to GIS data.

From the Summer 2005 issue of The News Media & The Law, page 25.

By Ryan Lozar

Reporters at The Philadelphia Inquirer wondered if intersections near bars have high rates of drunken driving accidents. Washington Post reporters wanted to investigate which neighborhoods have the most lead-contaminated drinking water. The [Cleveland] Plain Dealer wished to check whether the coverage areas of local fire stations overlapped, leaving some neighborhoods unprotected.

For all three stories, journalists used electronic Geographic Information System maps, which digitally integrate aerial maps with geographically referenced data &#151 on such topics as property values, traffic accidents, city water pipes and school busing.

In the Inquirer‘s 2002 series, journalists used GIS maps to overlay government-licensed bar addresses, drunken driving data and aerial maps to alert readers to especially dangerous intersections close to bars.

Scores of similar stories could not have been fully reported without electronic GIS maps. That is the argument The Reporters Committee for Freedom of the Press and other journalism groups gave the Connecticut Supreme Court in a friend-of-the-court brief filed in November seeking access to open government GIS records.

Two recent court rulings on the issue &#151 a favorable one from the Connecticut high court and a rejection of GIS openness from the U.S. Court of Appeals in Denver (10th Cir.) &#151 show a difference in how courts treat the issue.

The Connecticut court ruled in June that government GIS records are not protected by the public safety or trade secret exemptions to the state open records law that the town had claimed in denying disclosure.

Just one week earlier, the federal appellate court in Denver refused to order the Federal Emergency Management Agency to turn over its electronic GIS maps to a nonprofit organization, ruling that the privacy exemption to the federal Freedom of Information Act blocked data showing local homes.

Also in June, a New Jersey open records requester was denied access to a municipal utility’s electronic GIS maps when, at the urging of the utility’s officials, the federal Department of Homeland Security designated the data as secret “critical infrastructure information.”

Access not a given

Open records requesters repeatedly argue that government electronic GIS records &#151 paid for with taxpayer money &#151 are public. But access is not always that simple.

The Illinois state legislature passed a novel law in July 2002 explicitly exempting electronic GIS data from the state’s open records law. The legislature later changed the law to allow media &#151 but not the public &#151 access to the data.

That is better than offering no access, but Illinois still has it wrong, said Brant Houston, executive director of Investigative Reporters and Editors Inc., which joined the Connecticut friend-of-the-court brief. “It’s a halfway step . . . the average citizen ought to have access to this information, otherwise you start creating a hierarchy of public access,” he said.

Public officials also frustrate efforts by charging fees that wildly exceed the government’s copying costs.

“The public has already paid these public employees to collect the information, collate it and package it. Why should the public be billed twice?” Houston said. “What the government is essentially saying is that only the public that is wealthy enough to purchase the information has a right to see it.”

The government also blocks access to electronic GIS records by broadly interpreting exemptions to open records laws. That happened in Connecticut in 2001 when Greenwich officials denied citizen Stephen Whitaker’s open records request for electronic GIS data. They said that the data are a town trade secret that drew their “economic value from not being available to members of the public, like Whitaker, who hoped to use the information for their own economic gain.” Whitaker hoped to sell property and tax assessments found in the GIS system to homeowners, according to the Greenwich Time.

In four years, the state Freedom of Information Commission, a trial court, and the state Supreme Court ruled in Whitaker’s favor.

Without addressing the question of whether the government could invoke the trade secret exemption on its own behalf, Connecticut Supreme Court Justice Christine S. Vertefeuille wrote for the court that Greenwich’s trade secret argument failed because all of the information contained in the maps is available elsewhere.

“The requested GIS database simply is a convenient compilation of information that is already available to the public,” she wrote for the court in Director, Department of Information Technology of the Town of Greenwich v. Freedom of Information Commission. “The records therefore fail to meet the threshold test for trade secrets, that the information is not generally ascertainable by others.”

The court also dismissed Greenwich’s claimed concerns about public safety. In lower court proceedings, the town relied entirely on the testimonies of Police Chief Peter Robbins to suggest that free release of electronic GIS data would invite criminals or terrorists to use the information to harm the public, an argument that the high court rejected due to a lack of evidence.

The Connecticut Supreme Court opinion does not establish categorical openness for electronic GIS in the state, however. The opinion did not say that the public safety exemption could not ever apply, just that Greenwich presented little evidence to support its claim. That leaves future records requesters vulnerable to better-substantiated exemption claims.

Since the June ruling, Greenwich has offered Whitaker access to its electronic GIS data only as it existed in December 2001, the date of Whitaker’s original request. He has had to submit a new request for data updated through 2005.

The government is considering whether the 2005 data significantly differ from the 2001 data that the Supreme Court ordered released. If they do, the government may claim exemptions anew and Whitaker may find himself back at square one, having to file a complaint with the Connecticut Freedom of Information Commission, said Clifton Leonhardt, a commission lawyer.

Jennifer LaFleur, a computer-assisted reporting expert at The Dallas Morning News, thinks that Greenwich is playing games with Whitaker. “That’s why when I request that kind of information, I say I want it ‘from this date through the most current available,'” she said.

As Greenwich’s trade secret exemption claim shows, records custodians sometimes view electronic GIS data as commercial property with value lessened by free release.

Copyright law is another realm where GIS data’s commercial value may complicate records requests. While the Copyright Act prohibits the U.S. government from claiming copyright in its works, states regulate their own copyright standing.

In Florida, for instance, state law does not generally authorize the government to hold a copyright in its works. The state Court of Appeals therefore rejected the government’s use of copyright as an excuse to limit open records disclosure of GIS data in 2002’s Microdecisions, Inc. v. Skinner.

By contrast, the U.S. Court of Appeals in New York (2nd Cir.) held in County of Suffolk v. First American Real Estate Solutions in 2001 that New York law permits government-held copyrights in GIS data. Such copyrights do not, however, impede public inspection or copying under open records law, Judge Chester J. Straub wrote. Reporters “seeking to use the state agency records to educate others or to criticize the state” may be protected by the Copyright Act’s fair use doctrine, he added.

The privacy battle

The Federal Emergency Management Agency successfully invoked the privacy exemption to the Freedom of Information Act in responding to a request for GIS records from a nonprofit environmental group. The U.S. Court of Appeals in Denver (10th Cir.) upheld the denial, ruling that Forest Guardians, an environmental group in the Southwest, has no right to electronic versions of FEMA flood maps.

The group requested the maps, which depict flood-prone New Mexico communities where residents get federally subsidized flood insurance, in April 2002. Although the 2,500-member organization had earlier obtained paper versions of the same maps through an FOI Act request, it later decided that electronic format would be much easier to study.

“GIS information is so much more dynamic,” Forest Guardians Executive Director John Horning said. “We can figure out if there’s a bald eagle nesting in an area where homes are being proposed, or where homes have been put in,” he said. GIS information, with its detail, is “much more analogous to a road map of a neighborhood,” while paper maps are “much more analogous to a road map of a state,” he said.

The agency refused to release the electronic data, arguing that the heightened detail would compromise the personal privacy of residents under the FOI Act’s Exemption 6. Forest Guardians sued, and a federal district court ruled in its favor.

On appeal, a three-judge panel reversed, saying that the residents’ privacy concerns trumped the public’s interest in electronic maps because Forest Guardians already had the information on paper. The “information [Forest Guardians] now seeks is merely cumulative of the information FEMA has already provided” to it in paper format, Senior Judge Bobby R. Baldock wrote for the unanimous court.

In his concurrence, Judge Harris Hartz said he wished that Forest Guardians’ lawyers had developed a better record on how the organization “might be able to evaluate FEMA’s conduct better” with electronic GIS files instead of paper ones. Because of the lawyers’ failure, he wrote, the court had been unable to fully consider that issue.

“We made a strategic error by asking for the hard copy maps first,” Horning said, noting that the judges “just didn’t get that the way you use electronic information is vastly different from hard copy stuff.” Had Forest Guardians not already had the paper maps in their possession, the Tenth Circuit would not have been able to dismiss the appeal by merely saying FEMA had already released the same content in paper form, he said.

Forest Guardians has no plans to appeal.

Federal free-for-all

New Jersey’s Brick Township Municipal Utilities Authority recently submitted its electronic GIS data as secret “critical infrastructure information” to the federal Department of Homeland Security to keep it out of an open records requester’s hands.

A 2002 law created mandatory confidentiality for data deemed “critical infrastructure information,” vaguely defined as information pertaining to the security of the nation’s critical infrastructure and protected computer systems.

The New Jersey utility sought CII status by submitting an affidavit to the department saying that the “totality of the&#133 GIS database, in a digital format, is information that is not customarily in the public domain.” The department approved the utility’s application in a June 5 letter, effectively blocking New Jersey resident R. Bradley Tombs’ 2003 open records request for the GIS information.

DHS was wrong to approve GIS data for the designation, Tombs said. “There is no evidence to support that electronic maps are more of a security risk than paper ones; no one has ever pointed out any evidence to that effect,” he said.

Steven Aftergood, director of the Federation of American Scientists’ Project on Government Secrecy, noted that the CII law’s original purpose was to encourage private industry to voluntarily share infrastructure information to help the government prepare for a disaster. Because the GIS data were already in the government’s possession, the utility “seems to be using this statute as a tactic to evade open government laws more than as a way to support the department of security,” he said.

Tombs said his frustration at being denied access was further aggravated when he was told that he has no recourse to challenge the CII designation. “I’ve asked what the appeals process is and was told there is none,” he said.

The CII designation of the New Jersey utility’s GIS data hints that records requesters will face many GIS access disputes in which the government argues security-based secrecy. Indeed, the National Pipeline Mapping System and the National Bridge Inventory have recently closed access to electronic GIS data on pipeline and bridge locations, said Jeff Porter, IRE’s database library director. Those closures do nothing to hide information that the government has already released into the public domain, much of which is archived at IRE, Porter said.

“Once you have shared information and it is in the public domain, it’s going to be very, very difficult to ever close the door firmly on it,” Houston said, explaining the futility of suppressing GIS data for fear that terrorists might use it to find a nation’s major bridges or pipelines.

“There’s always a longing by government officials to have secrecy,” he said, “and they are searching and looking for every possible reason not to give out information that in general we need to know in order to protect ourselves.”