How to request public data

Finding it difficult to get and use digital map data prepared by city, county, or state agencies? The following comments are our opinions and practical suggestions. Nothing here is intended to be legal advice.

This is not a discussion about whether state and local agencies should be allowed to charge fees that are higher than the cost to copy the data. In Washington State, and probably in other states, we are told that state law doesn’t permit this. In Washington there have been several bills drafted by local and state agencies that would have given agencies more power to set higher fees. None of these bills ever made it out of the legislative committee. So whether we agree with the law or not, there it is.

General advice

Be nice.
Government agencies have built their maps for their own in-house use. They have their own organizational mission and it doesn't usually include becoming a public "data supplier." Requesting their data is an inconvenience to them. Ninety-five percent of public agencies will still politely and efficiently respond to your request--either out of duty or simple courtesy. But it always if you are patient with the agency, phrase your letters as "requests" not "demands", and use "Thank you" and "Please" liberally.

Know what you need.
Make it easy on the agency. Agency staff don't have the time for long discussions about the content and format of each layer in their map data holdings. You do need to know which map layers they have, and the digital format (Arc/Info E00, MapInfo, DXF, etc) and media (CD, 4mm tape, 8mm tape, etc) options. Usually they can fax or email you a list of these options that you can use as an "order form". Educate yourself so you don't have to ask agency staff to explain the pro's and con's of your options.

Agree to pay reasonable costs.
An agency can and should be able to ask you to reimburse it for the costs (staff time and media) to copy the map data for you. A reasonable cost to copy 200 mb of map data to CD or digital tape could be $50-$100. (1 hour of agency staff time $30-50/hour; $10 for blank CD or tape media; and a few dollars for postage)

Consider trading data.
An agency may find it easier, both politically and administratively, to exchange its data for data that you have.  Whether or not you now have data the agency needs, consider what you can return to the agency in the future.  Can you provide data quality feedback?  Can you fill in any missing attributes, such as street names, in the data?   Agencies will be more helpful if they see you as a cooperator rather than as an adversary.  [Thanks to Bill Epoch for this suggestion.]

Obstacles and How to Resolve Them

The agency says the maps are "not available."

This is almost never true, so if you get this response, you are probably talking to the wrong staff person, or someone who is uninformed. In 1994, for example, we requested a digital zoning map from the City of Kent Planning Department. The Planning Department said the map could not be released. However, the Kent City Attorney, when asked, said "Of course it can be released. I'll talk to the Planning Department about it."

Constructive questions you could ask:

With questions such as these, you may be able to figure out if "Not available" is an official and well-considered response.

The agency asks for an "unreasonable" fee for the data.

We are told that in some states, although not in Washington State, a state-chartered public agency can ask whatever fee it chooses and you can take it or leave it. The discussion below is related to states where fees are supposed to be reasonably based on the cost to the agency to copy the data for you.

Example #1:

In 1994, we requested a zoning map file from the City of Tacoma. This map files involved amounted to less than 2 mb of data. Tacoma replied that the data was available, then informed us that the bill would be $1000. When asked to explain how the bill was calculated, they explained as follows:

Does this seem like a reasonable fee? It amounts to much more than the cost to the agency to reproduce the data. We had not requested that the data be delivered on CD. Should it take 7 hours of staff time to copy 2 MB of data to any media? The $600 CD-ROM amortization charge is embarrassingly ludicrous.

Example #2:

In 1997, we requested a copy of 40 digital tapes from the USGS. We were informed that they would be happy to copy the tapes for a fee of $149,000. They later amended the cost to approximately $45,000. The cost was explained as follows:

But does it cost $45,000 to copy 40 digital tapes? $12,000 in labor alone?

Constructive questions you could ask:

Even if you consider the fee unconscionably high, you may still choose to pay it. If you do, you may want to document the information you were told by the agency and include in your request letter a comment along the following lines: "We are agreeing to pay the requested fee of $1000 because we were informed by you that you will not release the data unless we do so."

Here are some of the reasons given by public agencies for seemingly high fees:

Argument:

We have invested in special equipment and programming to allow us to respond to public requests for data. These costs should be recovered via fees.

Response:

Is the programming and equipment used solely to respond to public requests? Or is the equipment being used also for general agency purposes?

[This section being revised and expanded.]

The agency agrees to provide the data but asks you to sign a restrictive license or "data use" agreement.

Many "data use" agreements include restrictions against making more than one backup copy or using the data for more than a single specific stated purpose. You may not object to the restrictions. But you might object to being asked to sign something that other recipients don't have to sign. You might object to being told, directly or indirectly, that you have to sign or you won't get the data.

In Washington State, there are some restrictions on what you can do with government-provided data. For example, you are not supposed to use lists of individual names and addresses for marketing or similar purposes. But where does state law authorize public agencies to place other restrictions? No one has yet been able to answer this question to our satisfaction.

You may choose to sign the agreement. If you decline to sign the agreement, the agency may still give you the data. Once again it is important to ask, "Will I be denied the data if this license is not signed? As before, some agency GIS people will say: "There is no law that prevents us from asking for restrictions. If people choose to sign the agreement, that is is their voluntary act." This attitude does not seem obviously deceptive to some otherwise public spirited public employees. How does it seem to you?

Argument:

"We, the public agency, need to protect ourselves from liability claims from users of our data." The license includes a disclaimer of liability and therefore is important.

Response:

Offer to sign an acknowledgment that you understand that the public agency does not warrant that the data is any good at all for anything. The other parts of the license agreement, the parts that do not relate to liability, should be struck.

Argument:

We as public agencies are stewards of public assets. It is not good stewardship and it may even be illegal for us to "give away" public assets such as GIS data.

Response:

Public agencies do allow private individuals and companies to travel [most] public roads without charging toll fees. Public agencies release real estate tax records, voter registration records, databases of registered businesses, texts of public laws, and many other data sets that have some commercial value. Why is GIS data being treated differently? In the absence of specific authorization to charge tolls or other fees, these information and non-information assets are not diminished by being given away at the transaction cost to the agency. This is quite unlike a situation where assets such as office space or a road grader are illegally diverted for personal or commercial use.

Argument

You tell us what you do not accept in the agreement and we'll write you a letter saying it does not apply to you. The WA Dept. of Natural Resources has been known to suggest this.

The agency agrees to provide the data but also declares that it is copyrighted and that you cannot even give away the data.

Public agencies, in our experience, have only recently started to "copyright" their agency data, but this is a growing trend. The argument we hear from agencies is that "there is no law against it" and so it is legal for the agency to copyright its records. The counter-argument, among many (including some in the WA Attorney General's Office) is that the Open Records laws of the state can trump any restrictions on use that might be alleged due to copyright.

One complicated part of the copyright argument is that to "ordinary" people like us, "copyright" means you can't make any copies. But when the Open Records laws say you can have the data (and any other person can have it), then what restrictions really are imposed by this copyright claim? All of a sudden we have a word, "copyright", which means something different apparently when applied to public records.

The claim of copyright is something only attorneys can interpret, and we are told that there is much legal disagreement about it, depending on who you ask. But at this time, no one has ever shown us (and we have asked) any law or case law that says that you are restricted in how you use or share public records simply because the agency has stated that the records are "copyrighted". It is perplexing to have an agency claim that citizen A can receive a database, and citizen B can receive the same database, but citizen B cannot give a copy of the same database to citizen A without getting the separate permission of the agency. Yet this is what The City of Seattle has told us, for example.

The agency agrees to provide the data but will only provide it in one proprietary GIS format or on a type of tape media which you cannot read.

We hear that agencies can do this if they want to. The agency doesn't have to go out of its way to put the data in a format that is easy for you to use. So your best bet, if the agency declines to deliver it in an easy-to-use format, is to take what you can get and find some other cooperative agency or organization to help you convert or translate it.

You should know that sometimes this "format" issue is used as a wedge to squeeze a extra nickels of people who request data. In Arc/Info, for example, it is just as easy to run the ARCDXF command (export to DXF format) as it is to run the EXPORT COVER command (export t00*.E00 format). The *.E00 format is much more useful than DXF format since it contains line, point, and polygon attribute information that easily imports into other GISs. We have seen agencies agree to provide DXF format, but decline to provide *.E00 format files unless a substantial extra charge is paid. We have also seen agencies claim that you cannot share copies of the data because, and only because, the data was processed into a different format at your special request. The argument here is as follows: By processing it and not simply making as "as-is" copy, the agency is providing a value-added service that is exempt from Public Access restraints and therefore the agency can request whatever fee it chooses.

Understanding "Why"

Most GIS professionals in public agencies are kind and reasonable people. They have a job to do and they work hard at it. They, like private organization GIS people, always need more budget for making better data, for new equipment, or other worthwhile purposes. It has got to be frustrating for an agency GIS manager to know that their data is valuable to others and still to not have authority to set fees based on the "market". There are public agency consultants that counsel agencies to do more "cost recovery" and to be more "entrepreneurial." These consultants have raised the hopes of GIS agency management--hopes that revenue from the sale of data will be significant. And if the agency offers the data for sale at price X, why should they release it at the cost to make the copy?

We believe it is this frustration that makes it hard for some agency professionals to release data efficiently and under reasonable terms. But we hope that they remember that their duty is to follow both the letter and the intent of the law, including public records laws. It is fair to argue for a change in the law. But these laws have not changed appreciably and may not ever change.

N.B. We know our opinions are controversial to some. Please email us if you disagree. We'll then be able to post contrasting opinions here.

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