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United States District Court, S.D. New York.

COUNTY OF SUFFOLK, NEW YORK, Plaintiff,

v.

EXPERIAN INFORMATION SOLUTIONS, INC. d/b/a Experian, d/b/a Experian Real Estate

Solutions, TRW Redi Property Data, a/k/a Information Systems and Services,

Inc., and First American Real Estate Solutions, Defendants.

No. 99Civ.8735(JFK).

July 21, 2000.

Robert J. Cimino, Suffolk County Attorney, Hauppauge, New York, Jeltje deJong, for Plaintiff, of counsel.

Piper Marbury Rudnick & Wolfe LLP, New York, New York, Andrew L. Deutsch, Edward F. Maluf, for Defendants, of counsel.

MEMORANDUM OPINION and ORDER

KEENAN, J.

Before the Court is Defendant First American Real Estate Solutions LLC's ("First American") motion to reconsider this Court's May 15, 2000 Opinion and Order denying First American's motion to dismiss Plaintiff's Complaint in its entirety. For the reasons stated below, First American's motion to reconsider is granted and the Court hereby dismisses Plaintiff's Complaint.

Background

As set forth in detail in this Court's May 15 Opinion and Order, Plaintiff County of Suffolk, through its Real Property Tax Service Agency, created and designed a series of original maps ("tax maps") and an index system reflecting ownership, size, and location of real property in each of Suffolk County's political subdivisions and received copyright registrations for these works from the registrar of copyrights. Plaintiff brought this suit alleging that Defendant infringed Plaintiff's copyrights in the tax maps by publishing and placing on the market without license or consent of the Plaintiff, copies of the tax maps and CD Rom disks containing Plaintiff's maps. Plaintiff seeks to enjoin Defendants from copying, utilizing, and marketing in any manner the Suffolk County tax maps or any portion thereof and seeking damages suffered as a result of Defendants' alleged infringement.

First American moved to dismiss Plaintiff's Complaint in its entirety in a motion that was fully submitted on November 2, 1999. First American's motion to dismiss asserted a number of arguments that the Court rejected in the May 15 Opinion. First American now seeks reconsideration of the May 15 Opinion on the basis of only one of the arguments raised in its motion to dismiss, its argument that under New York's Freedom of Information Law (FOIL), N.Y. Pub. Off. Law §§ 84-90, any member of the public, including First American, may freely copy and distribute public records, such as Plaintiff's tax maps, and that Plaintiff cannot prevent First American from disseminating the tax maps based on Plaintiff's copyrights in those maps.

First American's motion to dismiss and the May 15, 2000 Opinion and Order

In its motion to dismiss, First American argued that the FOIL supersedes Plaintiff's copyright claims in its tax maps. The FOIL provides the public with access to public records at all levels of government in New York State. As stated in the legislative declaration that heads the statute:

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N.Y. Pub. Off. Law § 84. FOIL requires that "[e]ach agency shall, in accordance with its published rules, make available for public inspection and copying all records" except for certain records specified in the statute to which access may be denied. N.Y. Pub. Off. Law § 87(2).

In arguing that the FOIL supersedes Plaintiff's claim of copyrights in its tax maps, First American relied on two unpublished advisory opinions from the Committee on Open Government, the state agency which oversees implementation of FOIL, apparently given in response to inquiries from commercial companies. First American cited one advisory opinion, dated December 8, 1997, in its Memorandum of Law in support of its motion to dismiss and cited a second advisory opinion, dated February 3, 1997, in its Reply Memorandum of Law. Both advisory opinions contain almost identical language that is relevant to the present issue. The December 1997 advisory opinion provides:

See First American's Mem. of Law, Ex. E, at 2 (citations omitted). The February 1997 advisory opinion contains the above quoted language with only slight variations. See First American's Reply Mem. of Law, Ex. B, at 5. With regard to First American's reliance on these advisory opinions in support of its argument, however, the May 15 Opinion found that "[t]he unpublished advisory opinion ... is not binding authority. The Court therefore declines to find that the FOIL supersedes Plaintiff's copyrights." [Footnote 1]

First American now moves for reconsideration of the May 15 Opinion. First American has provided the Court with a third advisory opinion of the Committee, dated March 14, 2000, decided after its motion to dismiss was fully submitted, and argues that, while the advisory opinions are technically not binding on the Court, the Court should defer to the interpretations of the FOIL contained in the advisory opinions of the Committee on Open Government.

Discussion

The standards controlling a motion for reconsideration are set forth in Local Civil Rule 6.3 and Fed.R.Civ.P. 59(e). See Fulani v. Brady, 149 F.R.D. 501, 503 (S.D.N.Y.1993), aff'd 35 F.3d 49 (2d Cir.1994); Morser v. AT & T Information Sys., 715 F.Supp. 516, 517 (S.D.N.Y.1989). A motion for reconsideration "provides the Court with an opportunity to correct manifest errors of law or fact, hear newly discovered evidence, consider a change in the applicable law or prevent manifest injustice." U.S. Titan, Inc. v. Guangzhou Men Hua Shipping Co., Ltd., 182 F.R.D. 97, 100 (S.D.N.Y.1998); see Di Laura v. Power Authority, 982 F.2d 73, 76 (2d Cir.1992) ("[t]he major grounds justifying reconsideration are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice"); United States ex rel. Mikes v. Straus, 78 F.Supp.2d 223, 224 (S.D.N.Y.1999) ("To prevail on a motion for reconsideration, the movant must demonstrate 'an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." '); In re Sundial asphalt Co. Inc., 147 B.R. 72, 84 (E.D.N.Y.1992) (motion for reconsideration appropriate "when there has been a significant change in the law or facts since submission of the issue to the court"); cf. Davis v. The Gap, Inc., 186 F.R.D. 322, 323 (S.D.N.Y.1999) (motion to reargue may only be granted where the Court has "overlooked controlling decisions or factual matters that were put before it on the underlying motion"). However, because a motion to reconsider "is not a motion to reargue those issues already considered when a party does not like the way the original motion was resolved," In re Houbigat, Inc., 914 F.Supp. 997, 1001 (S.D.N.Y.1996), Rule 6.3 "precludes a party from advancing new facts, issues or arguments not previously presented to the court," Bank Leumi Trust Co. of New York v. Istim, Inc., 902 F.Supp. 46, 48 (S.D.N.Y.1995). Whether to grant or deny a motion for reconsideration is in the "sound discretion of a district court judge and will not be overturned on appeal absent an abuse of discretion." U.S. Titan, 182 F.R.D. at 100 (citing McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir.1983)).

This Court was correct in the May 15 Opinion in stating that an unpublished advisory opinion is not binding on a court. However, First American correctly notes that this Court must construe FOIL as a New York court would [Footnote 2] and that, in interpreting the meaning and scope of FOIL, New York courts must defer to interpretations of FOIL contained in the advisory opinions of the Committee on Open Government unless those interpretations are irrational or unreasonable. "Since the Committee is the state agency charged with administering the [FOIL], its interpretation of the statute, if not irrational or unreasonable, should be upheld." Miracle Mile Assocs. v. Yudelson, 68 A.D.2d 176, 181, 417 N.Y.S.2d 142, 146 (4 th Dep't 1979) (citing Sheehan v. City of Binghamton, 59 A .D.2d 808, 398 N.Y.S.2d 905 (3 rd Dep't 1977)); see also Kwasnik v. City of New York, 262 A.D.2d 171, 172, 691 N.Y.S.2d 525, 526 (1 st Dep't 1999) (stating that courts should defer to opinions of the Committee on Open Government).

In its May 15 Opinion this Court concluded that it was not bound by the December 1997 and February 1997 advisory opinions, which contained mere conclusory statements that failed to provide the Court with any real basis for determining whether their interpretation of FOIL was irrational or unreasonable. In contrast, the March 14, 2000 advisory opinion, set forth below in relevant part, provides extensive analysis and support for its interpretation of FOIL. As a result, the Court concludes that it is appropriate to defer to the interpretation of FOIL contained in the well-reasoned March 14, 2000 advisory opinion, which the Court finds is neither irrational nor unreasonable. Moreover, the Court finds that the March 14 advisory opinion-- issued after the papers regarding Defendant's motion to dismiss were fully submitted--constitutes "a change in the applicable law" for purposes of this motion to reconsider. See U.S. Titan, 182 F.R.D. at 100; see also In re Sundial, 147 B.R. at 84 (motion for reconsideration appropriate "when there has been a significant change in the law or facts since submission of the issue to the court"). As a result, the Court finds that First American may disseminate the tax maps in question under the FOIL and finds that Plaintiff may not prevent First American from disseminating the tax maps based on Plaintiff's copyright claims.

The March 14, 2000 Advisory Opinion

The March 14 Advisory Opinion was issued by the Executive Director of the Committee on Open Government in response to a request for an opinion from a map company that sought access to geographical data from the New York State Department of Transportation ("DOT"). The DOT had agreed to provide the data but only if the map company signed a "copyright agreement" stating that it would not use the materials for commercial purposes. The March 14 Opinion addressed the DOT's position as follows:

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See First American's Mem. of Law, Ex. A, at 5-7. The March 14 Advisory Opinion then compares the FOIL to the federal Freedom of Information Act, again concluding that the DOT "does not prepare the records for economic gain; it has no 'commercial interest' in so doing; on the contrary, the records are prepared because it is the agency's statutory obligation to do so. In short, it is questionable in my view whether DOT can claim copyright protection at all." See id. at 8. [Footnote 3]

The March 14 Advisory Opinion also included arguments that the assertion of copyright protection in this context is contrary to public policy and may violate the First Amendment. See id. at 9-10. The Committee's March 14 Opinion ultimately concluded that "the assertion of copyright claims in the context of your inquiry is, in my opinion, contrary to the intent of both the [FOIL] and the Copyright Act." See id. at 10.

The Court concludes that this interpretation of FOIL is neither irrational nor unreasonable. The DOT had argued, as Plaintiff argues in the present case, that by making copies of its maps available, it does not infringe the rights conferred by the FOIL. The Committee rejected this argument based on the "inherent purpose" of the FOIL and after reviewing the constitutional and statutory underpinnings of copyright protection. The Court finds that the Committee's interpretation of the FOIL in the March 14 Opinion is compatible with FOIL's purpose of providing maximum access to public records. As stated in the legislative declaration that heads the statute, "[t]he Legislature hereby finds that a free society is maintained when the government is responsive and responsible to the public, and when the public is aware of governmental actions. The more open a government is with its citizenry, the greater the understanding and participation of the public in government." In addition, the Court notes that counties such as Plaintiff are required by law to create those maps and to make them public. See N.Y. Real Property Tax Law § 503(1)(a). Plaintiff, similar to the DOT, does not prepare the maps in question for economic gain and has no commercial interest in preparing the maps. Rather, Plaintiff prepares the tax maps because it is Plaintiff's statutory obligation to prepare them. As a result, this ruling will not create a disincentive for counties to create these tax maps.

Conclusion

For the reasons stated above, First American's motion to reconsider is granted and the Court hereby dismisses Plaintiff's Complaint. The Court concludes that, under the FOIL, First American may freely copy and distribute Plaintiff's tax maps and that Plaintiff may not prevent First American from disseminating the tax maps on the basis of Plaintiff's copyrights in those maps.

*6 The Court orders this case closed and directs the Clerk of the Court to remove this case from the Court's active docket.

SO ORDERED.

Footnote 1. Plaintiff argued that the FOIL required Plaintiff to give Defendant access to its maps, but that the FOIL did not give Defendant the right to publish and sell Plaintiff's copyrighted maps. The Court agreed based on the plain language of the statute.

Footnote 2. "[I]f the highest court of the state has yet to rule on a controlling question of state law, or if the application of state law is uncertain, it is the task of the federal court to carefully ... predict how the highest court of the forum state would resolve the uncertainty." In re Joint Eastern and Southern District Asbestos Litig., 78 F.3d 764, 776 (2d Cir.1996) (citations omitted). Although Plaintiff argues that the application of FOIL is not "uncertain," the Court is not aware of any New York judicial decision that addresses whether the FOIL supersedes copyrights similar to those at issue in this case and neither party has cited to any judicial decision addressing this issue. In Tinelli v. Redl, 199 F.3d 603, 606 (2d Cir.1999), the Second Circuit found that where there was a "dearth of case law addressing this precise issue in New York, we cannot say that the state's law is certain on this point."

Footnote 3. The March 14 Advisory Opinion went on to distinguish the functions of the DOT regarding maps from the activities of another state agency, the State Department of Health, which involved research, "discovery," and the creation of new medicines, all of which are carried out by the Department of Health as a "player" or "competitor" in the marketplace. The Court found that the DOT's functions "involve the compilation of factual data, not scientific research or discovery analogous to the activities in which the Health Department is engaged."