OverviewFinding it difficult to get
GIS data
from 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 principles
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 exactly 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.
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.]
Resolving Agency Objections
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."
Ask Constructive questions
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Have the maps ever been shared with other public agencies or
with other departments?
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Has any other party requested the maps in the past, and been
refused? What organization was that?
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Has your agency ever put together a written policy on
"data sharing" or "public access" to map data? Can I get a copy of it?
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Has the subject [of releasing the maps] ever been discussed
with the City Attorney or other agency counsel?
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Would the maps become available if I sent a formal request
as authorized by state or federal "public disclosure" or "open
records" law? Usually you want to avoid making such formal requests. They are
sometimes received, by agencies, as unnecessarily confrontational. At other agencies,
though, they may be welcomed because such a formal request gives the agency a clear
unambiguous basis for releasing the data.
With questions such as these, you may be able to figure out
if "Not available" is an official and well-considered response.
If the agency asks for an
"unreasonable" fee
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: City of Tacoma Zoning request
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:
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$50: $25 for each of two CD-ROM platters: one CD to be sent
to us and one more that they choose to make for their archives, to document what they had
sent.
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$350 for approximately 7 hours of staff time to discuss our
request by phone, document the data, burn the CD's, and do other unspecified work related
to our request.
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$600 to amortize the cost of the CD-ROM production equipment
the agency had purchased.
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? Isn't the $600 CD-ROM amortization charge more than a stretch.
Example #2: USGS imagery request
In 1997, SGSI 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:
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$12,000 for labor
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$14,400 for equipment maintenance
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$8,800 for computer operations
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$10,000 for "assessment" (not defined)
But does it cost $45,000 to copy 40 digital tapes? $12,000
in labor alone?
Getting to "Yes"
Is there any way to obtain the data for less cost? Different media?
Different format? No agency "technical support?"
The City of Seattle, for example, has a long and
complicated fee structure for "licensed" GIS map data, which includes
options for receiving the data on different media, in different translated
digital formats, and with different rights to make copies. But hidden away
toward the beginning, is the option to get the data without any "optional
extras" at a much lower cost and without a "license agreement".
Will I be denied the data if this fee is not paid?
There is an argument in some agency GIS circles that
goes as follows: "If we ask for a [high] fee and people agree to pay it,
then we have broken no law and we raise more money to support our agency."
So you need to determine if the proposed fee is mandatory or is a
"recommended donation."
Has the agency attorney reviewed the fee and found it
reasonable? Has the fee structure been made part of formal agency rules or
municipal legislation?
Note that in some states public agencies in general or
certain specified public agencies can set fees for maps that are higher than
the cost to simply reproduce the data.
What is the basis for the calculation of the fee?
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."
Agency Arguments
Agency 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?
Was the extra equipment etc purchased in response to *my*
request?
Could you have responded to my request without it?
Agency argument:
"We will provide the data but you must first sign a
restrictive license or 'data use' agreement."
Response:
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 must not 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 voluntarily sign the agreement. If you decline to
sign it, 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 noted 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?
Agency 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.
Agency 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
exclusive commercial
use.
Agency 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."
Response:
The WA Dept. of Natural
Resources has been known to suggest this. On its face, this may work
out. But is it reasonable to expect citizens to engage in protracted
section-by-section negotiations to receive data that should be provided freely
under state law?
Agency argument:
"We will provide the data but we have
copyrighted it and you may not, for example, even give away the data without
violating our copyright."
Response:
Public agencies, in our experience, have only recently
started to "copyright" their agency data, but it is a growing trend.
The argument we hear from agencies is that "there is no law
against copyrighting public records" and so it is legal for the agency to do so.
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" non-lawyer people, "copyright" sounds like it 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.
Agency argument:
"We will only provide the data in
one proprietary GIS format or only on a type of tape or optical disk media which you cannot read
without expensive investments.
Response:
We understand an
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.
Another approach is to ask if this agency only distributes
its data *internally* in the obscure media or digital format. Usually this
turn out not to be true. That is, often the agency already converts it to
an easily readable format for internal users.
Sometimes this "format"
issue is simply an excuse to generate extra revenue. 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.
Agency argument:
"Our GIS database is part of our 'GIS System' and is
'software' not a 'public record'. As such it is not subject to open
records laws."
Response:
It is true that some public records laws exempt "software"
from public records requests. But isn't calling GIS data "software" like
saying an Excel XLS is "software" not "data". Judge James Di Cesare of
Orange County (CA) Superior Court agreed with this argument. In May 2010,
he
ruled against the Sierra Club in a suit requesting low cost access to
public agency GIS data. The Sierra Club plans to appeal.
Why agencies do
this?
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 sector GIS teams always need more budget to improve their maps,
upgrade equipment, or for other worthwhile purposes.
To generate revenue
It must be frustrating for an agency GIS manager to know
that agency GIS data is valuable to others and still to not have authority to set
fees based on the "market".
Sometimes the agency has cost-sharing partners (title
companies, utilities, native tribes, other government agencies) who've agreed to
fund the GIS data maintenance in exchange for resulting data. If the lead
agency must give away the same GIS data to all comers, at nominal cost, will
their cost-sharing partners continue to ante up?
Consultant advice
There are public agency consultants that counsel agencies to
do more "cost recovery" and to be more "entrepreneurial." These consultants
raise the hopes of GIS agency management--hopes that revenue from the sale of
data will be significant.
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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