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Public official cannot claim copyright of government records

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    News Media Update         FLORIDA         Freedom of Information    

Public official cannot claim copyright of government records

  • A county property appraiser who created a Geographic Information System cannot hold a copyright for it as records created by his office because the state legislature had not granted him that right, the Court of Appeals of Florida ruled Dec. 1.

Dec. 9, 2004 — A Florida government agency can only hold a copyright of a public record and keep it out of public view if the state legislature has approved it by a two-thirds vote, the Florida Court of Appeals in Tampa held Dec. 1. The decision came in response to a county appraiser’s attempt to restrict public use of what he claimed were copyrighted government records.

The controversy began when MicroDecisions Inc. submitted a records request to Collier County Property Appraiser Abe Skinner for access to Geographic Information System (GIS) records he created for county use. GIS records are aerial maps that frequently integrate geographically referenced statistics.

Skinner conditioned his release of the GIS records on MicroDecisions’ agreement not to sell it to a third party. Skinner claimed that as the records’ creator, he held a copyright that allowed the restriction.

MicroDecisions sued in state court to gain unrestricted access to the GIS data. A state trial court ruled that jurisdiction belonged to a federal court because Skinner’s defense dealt with federal copyright law. A federal court disagreed, holding that MicroDecision’s claims clearly arose out of state law, and sent the case back to the Florida state judicial system, where it came before the Court of Appeals.

The court noted that for nearly 100 years, Florida case law has prohibited government discrimination against commercially motivated records requesters.

Because Skinner’s copyright defense would carve out an exemption to the open records law, the court held that its validity hinged on whether the Florida Legislature had ever authorized its use. The Florida Constitution’s freedom of information provision states that open records exemptions are only valid under a two-thirds vote from the legislature.

Because a general copyright exemption has never been created by the legislature, Skinner “misconstrues the interplay between the federal copyright act and Florida’s public records laws,” the court concluded.

The court also cited the legislature’s recent passage of a narrow copyright exemption in the context of government-created data processing software. The creation of that context-specific copyright exemption implies the absence of an all-purpose copyright exemption that Skinner was trying to claim, the court ruled.

The appeals panel sent the case back to the trial court for a ruling consistent with its holding.

(MicroDecisions Inc v. Skinner; Media Counsel: Jonathan D. Kaney, Jr., Jonathan D. Kaney, III, and Heather Bond Vargas, Cobb & Cole, Daytona Beach, Florida) RL

© 2004 The Reporters Committee for Freedom of the Press

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