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9. Computer software

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  • Alaska

    The Public Records Act expressly defines the term “public records” as excluding “proprietary software programs.” AS 40.25.220(3). While by negative inference it would appear that nonproprietary software may be available as a “public record,” it should be noted that the Public Records Act expressly includes within its definition of “electronic products and services,” for which different rules apply with respect to accessibility and fees, “providing software developed by a public agency or developed by a private contractor for a public agency.” AS 40.25.220(1)(F).

    The Public Records Act defines the term “public records” to mean “books, papers, files, accounts, writings, including drafts and memorializations of conversations, and other items, regardless of format or physical characteristics. …” AS 40.25.220(3).  There are no reported cases at this time dealing with metadata specifically.  Whether metadata are public records is likely to depend primarily on whether they relate to public business and more specifically, whether they are “developed or received by a public agency, or by a private contractor for a public agency, and that are preserved for their informational value or as evidence of the organization or operation of the public agency.” AS 40.25.220(3). There is no apparent reason why this information should not be deemed public record, subject to otherwise applicable exceptions.

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  • Arizona

    No Arizona statute or case addresses this issue, but a court would likely follow the Court of Appeals reasoning in Lunney v. State of Arizona, regarding a public employee’s use of a private cellphone.

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  • Arkansas

    No. The definition of public records does not include “software acquired by purchase, lease, or license.” Ark. Code Ann. § 25-19-103(5)(B).
    There is no statutory or case law addressing this issue.

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  • California

    “Computer software developed by a state or local agency is not itself a public record under this chapter. The agency may sell, lease, or license the software for commercial or noncommercial use.”  Cal. Gov’t Code § 6254.9 (a).  “‘Computer software’ includes computer mapping systems, computer programs, and computer graphics systems.’” Id., § 6254.9(b). “Nothing in this section is intended to affect the public record status of information merely because it is stored in a computer.  Id., § 6254.9(c).

    In 2013, the California Supreme Court was called upon to decide “whether the statutory exemption for ‘[c]omputer software’ (§ 6259.9(a))—a term that ‘includes computer mapping systems’ (§ 6254.9(b))—encompasses mapping data in a GIS file format … or only GIS mapping software…” See Sierra Club v. Superior Court, 57 Cal. 4th 157, 158 Cal. Rptr. 639, 302 P.3d 1026 (2013). In rejecting the argument that computer mapping systems includes the databases underlying the mapping software since it enables a database to function as part of a computer mapping system, the court relied on the ordinary meaning of the statute’s text and the interpretative mandates of the California Sunshine Amendment. Id. at 171, 175. To the extent the term “computer mapping systems” was ambiguous, the court said “the constitutional cannon requires us to interpret it in a way that maximizes the public’s access to information…” Id. at 175. Applying these principles, the court held that a parcel database in GIS file format was not within Section 6254.9(a)’s exclusion for computer software from the definition of public records under the CPRA. Id. at 176.

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  • Colorado

    Software is not a public record. Public records includes all writings, but writings is defined as "all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials, regardless of physical form or characteristics. 'Writings' includes digitally stored data, including without limitation electronic mail messages, but does not include computer software." Colo. Rev. Stat. § 24-72-202(7).  Metadata may be public since it likely constitutes "digitally stored data." Colo. Rev. Stat. § 24-72-202(7).

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  • Connecticut

    See Conn. Gen. Stat. §1-211.

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  • Delaware

    To the extent that software contains or is proprietary or trade secret information, such software is exempt from disclosure.  29 Del. C. § 10002(g)(2); Del. Op. Att'y Gen., No. 06-ib17 (Aug. 21, 2006).

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  • District of Columbia

    Not specifically addressed.

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  • Georgia

    Computer programs and computer software are exempted from disclosure under the Act.  O.C.G.A. § 50-18-72(a)(44).

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  • Hawaii

    There is no statutory or case law addressing this issue.

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  • Idaho

    Idaho Code § 74-107(15) exempts computer programs developed or purchased by or for any public agency for its own use from disclosure under the Act.  The definition of a “computer program” does not include: “(a) The original data including, but not limited to, numbers, text, voice, graphics and images; (b) Analysis, compilation and other manipulated forms of the original data produced by use of the program; or (c) The mathematical or statistical formulas that would be used if the manipulated forms of the original data were to be produced manually.” Id.

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  • Illinois

    Computer software is open, unless (1) it constitutes proprietary or trade secret information under 5 ILCS 140/7(1)(g); (2) it is copyright protected as, thus, exempt under 5 ILCS 140/7(1)(a); or (3) it is exempt as “[a]dministrative or technical information associated with automated data processing operations . . . that, if disclosed, would jeopardize the security of the system or its data or the security of materials exempt under 5 ILCS 140/7(1)(o). Garlick v. Naperville Twp., 2017 IL App (2d) 170025, 84 N.E.3d 607. The FOIA and the case law interpreting the Act do not address metadata. As such, it should be open. See 5 ILCS 140/1.2.

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  • Indiana

    “Computer programs, computer codes, computer filing systems, and other software that are owned by the public agency” may be exempted from disclosure at the agency’s discretion.  Ind. Code § 5-14-3-4(b)(11).

     “A public agency that maintains or contracts for the maintenance of public records in an electronic data storage system shall make reasonable efforts to provide to a person making a request a copy of all disclosable data contained in the records on paper, disk, tape, drum, or any other method of electronic retrieval if the medium requested is compatible with the agency’s data storage system.”  Ind. Code § 5-14-3-3(d).  No reported case law interprets this provision of the Act or addresses metadata.

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  • Iowa

    "Data processing software" means an ordered set of instructions or statements that, when executed by a computer, causes the computer to process data, and includes any program or set of programs, procedures, or routines used to employ and control capabilities of computer hardware. As used in this paragraph "data processing software" includes but is not limited to an operating system, compiler, assembler, utility, library resource, maintenance routine, application, or computer networking program.  Iowa Code § 22.3A(1)(e).

    “A government body may provide, restrict, or prohibit access to data processing software developed by the government body, regardless of whether the data processing software is separated or combined with a public record.” Iowa Code § 22.3A(2). “A public record shall not be withheld from the public because it is combined with data processing software. A government body shall not acquire any electronic data processing system for the storage, manipulation, or retrieval of public records that would impair the government body's ability to permit the examination of a public record and the copying of a public record in either written or electronic form.”  Id.

    Data processing software will not be publicly available information where it is a trade secret, which is exempt as confidential under Iowa Code section 22.7. See Iowa Film Prod. Servs., 818 N.W.2d at 221-22; Simington v. Banwart, No. 09-1561, 2010 WL 2089348, at *4 (Iowa Ct. App. May 26, 2010) (citing Brown v. Iowa Legislative Council, 490 N.W.2d 551, 553-54 (Iowa 1992)).

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  • Kansas

    A public agency is not required to disclose software programs for electronic data processing and documentation thereof, but each public agency shall maintain a register that is open to the public which describes: (1) the information which the agency maintains on computer facilities, and (2) the form in which this information can be made available using the existing computer programs. K.S.A. 45-221(a)(16).

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  • Kentucky

    Computer software is exempted from disclosure if it constitutes “material which is prohibited from disclosure or copying by a license agreement between a public agency and an outside entity which supplied the material to the agency.” Ky. Rev. Stat. 61.870(3)(b).

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  • Louisiana

    No specific provision, but under the Act, computer software and/or file metadata should be treated as a public record and should be produced to a requester absent an applicable exemption, if it otherwise falls within the definition of “public record.”  However, “any documentary material of a security feature of a public body's electronic data processing system, information technology system, telecommunications network, or electronic security system, including hardware or software security, password, or security procedure, process, configuration, software, and code is not a ‘public record.’”  La. Rev. Stat. Ann. § 44:1(A)(2)(b).

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  • Maine

    Computer programs, technical data, logic diagrams and source code related to data processing or telecommunications that qualify as trade secrets are not public records.  5 M.R.S.A. § 1976(1).  Otherwise, “any document created or stored on a State Government computer must be made available in accordance with” the public records law.  5 M.R.S.A. § 1976.

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  • Maryland

    A custodian is not permitted to release an electronic record in a format that would “jeopardize or compromise the security or integrity of the original record or of any proprietary software.”  § 4-205(c)(4).

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  • Michigan

    Computer software is exempt from the definition of public record under Mich. Comp. Laws 15.232(e). The statute and case law do not specifically address metadata.

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  • Montana

    Software and meta-data residing on government computers are subject to public inspection.

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  • Nebraska

    Computer software is not addressed in the public records statutes. The Attorney General has opined that computer software is generally considered to be public record, subject to the exceptions contained in the public records statutes. Op. Atty. Gen. No. 96074 (Nov. 13, 1996). The Attorney General Opinion advises agencies that there may be “significant legal restrictions imposed by any copyright or trademark pertaining to the computer codes. . . .” Id. No statute, case law or Attorney General opinion addresses whether computer file metadata is a public record.

    Metadata is not addressed in the public records statutes.

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  • Nevada

    Computer software developed by the government is not a public record, but the computer software may generate public records. The software can generate public records which are deemed to exist so long as computer is already programmed to generate these records.

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  • New Hampshire

    As “governmental records.” See RSA 91-A:1-a,III-IV.

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  • New Jersey

    N.J.S.A. 47:1A-1.1 provides in pertinent part:

    A government record shall not include the following information which is deemed to be confidential for the purposes of P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented:

    *           *           *
    trade secrets and proprietary commercial or financial information obtained from any source.  For the purposes of this paragraph, trade secrets shall include data processing software obtained by a public body under a licensing agreement which prohibits its disclosure;

    (Emphasis added.)

     

    There are no reported cases in New Jersey that expressly hold that metadata is accessible under OPRA.  However, OPRA defines a “government record” broadly as any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof.

    Thus, it appears that metadata would fall within this definition and would be considered a government record, subject to access, unless it falls within a particular exemption. See also Paff v. Galloway Twp., 229 N.J. 340, 353 (2017).

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  • New Mexico

    The Public Records Act states that information contained in information systems or computer databases shall be a public record.  NMSA 1978 §§ 14-3-15.1 and 14-3-18(C).  There is no statutory or case law indicating specifically whether software is included.

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  • North Carolina

    The Public Records Law does not address this question, but an opinion of the Attorney General found that “the explicit language of G.S. §132-6.1 distinguishes software used to generate records from records it generates. Thus, we are of the opinion that in light of current law, the General Assembly did not intend to mandate disclosure of State-owned computer software pursuant to G.S. §132-1 et seq.” 1998 WL 459785 (N.C.A.G. May 28, 1998).

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  • North Dakota

    A computer software program and components of a computer software program that are subject to a copyright or a patent and any formula, pattern, compilation, program, device, method, technique, or process supplied to a public entity that is the subject of efforts by the supplying person to maintain its secrecy and that may derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons that might obtain economic value from its disclosure or use is confidential, so long as the information is of a privileged nature and has not been previously publicly disclosed. N.D.C.C. § 44-04-18.4(1), (2)(c)(7).

    Any computer software program or component of a computer software program contracted, developed, or acquired by a public entity or state agency, institution, department, or board and for which the public entity or state agency, institution, department, or board acquires a license, copyright, or patent is exempt. N.D.C.C. § 44-04-18.5.

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  • Ohio

    Proprietary software is not a public record, even if needed to access public records.  State ex rel. Recodat Co. v. Buchanan, 46 Ohio St. 3d 163, 546 N.E.2d 203 (1989).

    The owner of a real estate appraisal business used to obtain from a county engineer digital copies  electronically-stored aerial photographs and tax maps to use in his business. When the county changed software, the engineer's office could no longer create data files for the public in readable form because the data was only readable with copyrighted software licensed to the county.

    The county demanded $2,000 to retrieve the requested electronic maps and photographs and then separate the data from the copyright-protected software. The business owner sued, but didn't claim that the software was public record, and did not he seek a copy of the software.

    The business owner argued that the raw data was public, and that the county should bear the $2,000 cost to separate the data from the software. The Ohio Supreme Court ruled that the business owner had to pay the $2,000 cost if he wanted the data separated from the software. But if he wanted the data together with the copyright-protected software, he could not get it because of the federal Copyright Act, which protected the copyright owner from unauthorized copying of the software. The county relied on an exception in the Public Records Act for records "the release of which is prohibited by state or federal law." State ex rel. Gambill v. Opperman, 135 Ohio St.3d 298, 986 N.E.2d 931, 2013-Ohio-761.

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  • Oklahoma

    Computer software is not a record under the Open Records Act. 51 O.S. § 24A.3.1.a.

    Whether metadata would be public has not been addressed in the state.

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  • Oregon

    ORS 192.345(15) (formerly ORS 192.501) exempts “[c]omputer programs developed or purchased by or for any public body for its own use” from disclosure “unless the public interest requires disclosure in the particular instance.” The definition of “computer program” does not include data, analyses produced by software or mathematical and statistical formulas. ORS 192.345(15)(a)-(c). The statute does not specifically address software that is “licensed” as opposed to “purchased.” The Attorney General has concluded that ORS 192.324 (formerly ORS 192.440) requires public bodies “to retrieve and make available nonexempt computer or electronically stored data and information, when requested, through the computer software or programs in use by the public body,” but that under ORS 192.345(15) (formerly ORS 192.501) the public body is not required to disclose the underlying software or program. Attorney General Manual § 1.C.1. ORS 268.357, concerning software developed using public funds by metropolitan service districts, provides that “[n]otwithstanding any other provision of law, district software product programming source codes, object codes and geographic databases or systems are confidential and exempt from public disclosure under ORS 192.355 [formerly ORS 192.502].”

    There is no case law specifically addressing metadata in the context of public records. ORS 192.324(3) (formerly 192.440) provides that “[i]f the public record is maintained in a machine readable or electronic form, the custodian shall provide a copy of the public record in the form requested, if available. If the public record is not available in the form requested, the custodian shall make the public record available in the form in which the custodian maintains the public record” (emphasis added). Because the form in which many electronic records are stored includes meta-data, it appears that this provision makes file metadata public, though no case has addressed the issue.

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  • Rhode Island

    There is no statutory or case law addressing this issue.

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  • South Carolina

    The definition of public record includes documentation regardless of physical form or characteristics; therefore, software could be a public record.  S.C. Code Ann. §30-4-20(c); Seago v. Horry County, 663 S.E.2d 38 (S.C. 2008).

    Data meeting the definition of public record will be considered public records under the Act, but a copyright may be claimed to restrict commercial use. Seago v. Horry County, 663 S.E.2d 38 (S.C. 2008).

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  • South Dakota

    Form and format do not alter a record’s essence. SDCL §1-27-1.1 and SDCL  §1-27-4.

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  • Tennessee

    Computer programs sold, licensed or donated to the state are closed. T.C.A. § 10-7-504(a)(18)

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  • Texas

    Section 552.139 makes security assessments of a governmental body’s  data processing operations, computers, computer programs, networks, systems, or system interfaces confidential.

    Texas Education Code § 51.914 specifically excepts computer programs developed (in whole or in part) at a state institution of higher education from disclosure under the Act.

    The Attorney General addressed a request for copies of computer programs used by Southwest Texas State University to maintain records in Tex. Att’y Gen. ORD-581 (1990). While the Attorney General found that the term “information” as used in the Act “is certainly comprehensive,” he determined that “where information has no other significance than its use as a tool for the maintenance, manipulation, or protection of public property, we find that it is not the kind of information made public” by the Act. Id. at 4. Accordingly, the Attorney General advised that the computer programs need not be released. Id. at 5; see also Tex. Att’y Gen. OR2011-06282.  In addition, where release of copies of computer programs owned by third parties and protected by copyright would violate federal law, disclosure is not required. Tex. Att’y Gen. ORD-505 (1988).

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  • Utah

    Proprietary software and computer programs are not subject to GRAMA. Utah Code § 63G-2-103(22)(b)(v), (x). While Utah courts have not had the opportunity to decide the issue, software and file metadata arguably are exempt from disclosure as well. See Maese v. Davis Cty., 273 P.3d 949, 952 (Utah 2012) (declining to determine whether the database file, its metadata, or other hidden variables constitute public records under GRAMA).

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  • Vermont

    Computer software is not addressed in the Public Records Act, nor has it been addressed by Vermont courts.  The Public Records Act, does, however, exempt “[a]ll State-controlled database structures and application code, including the vermontvacation.com website and Travel Planner application, which are known only to certain State departments engaging in marketing activities and which give the State an opportunity to obtain a marketing advantage over any other state, regional, or local governmental or nonprofit quasi-governmental entity, or private sector entity, unless any such State department engaging in marketing activities determines that the license or other voluntary disclosure of such materials is in the State’s best interests.” 1 V.S.A. § 317 (c)(30).

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  • Virginia

    Public bodies generally do not give access to computer software purchased or licensed by, or developed by, a public body. Vendor proprietary information software acquired from a vendor for data processing use and in the official records of a public body is subject to exclusion from disclosure. Va. Code Ann. § 2.2-3705.1.6. Computer software developed by or for a state agency, public institution of higher education or political subdivision is subject to exclusion. Va. Code Ann. § 2.2-3705.1.7.

    Metadata has no special treatment by statute.

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  • Washington

    There is no statute or case law specifically addressing this issue.

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  • West Virginia

    There have been no court decisions or agency guidance indicating how software is to be treated for purposes of FOIA analysis. Nor have there been any court decisions or agency guidance indicating how file metadata is to be treated for purposes of FOIA analysis.

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  • Wyoming

    An agency may decline access to records if it would compromise the security or integrity of "any propriety software."  Wyo. Stat. 16-4-202(d)(iv).

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