Onsrud, H.J., "In Support of Open Access for Publicly Held Geographic Information," GIS Law, 1992, 1(1): 3-6

Harlan J. Onsrud

Department of Spatial information Science and Engineering

University of Maine

This article is the first in a series of two articles. In this first article, Professor Onsrud explores advocacy arguments in support of open access for publicly held geographic information. In the next issue of GIS Law, he will present counter arguments and raise issues which speak in support of cost recovery arrangements.

A popular government, without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy; or perhaps both. Knowledge will forever govern ignorance. And a people who mean to be their own governors, must arm themselves with the power knowledge gives. John Adams, Aug.4, 1822, words now inscribed to the left of the main entrance Library of Congress

The U.S. Freedom of Information Act (FOIA, USCS [[section]] 552) and the Open Records Laws of the individual states create a balance between the right of citizens to be informed about government activities and the need to maintain confidentiality of some government records. These laws generally support a broad policy of government disclosure. For instance, if information held by a federal agency is determined to be an agency record, the record must be disclosed to any person requesting it unless the record falls within one of nine narrowly drawn exceptions contained in the FOIA. The provisions for disclosure under the federal act, as well as under most state acts, are construed liberally by the courts whereas the exceptions are construed narrowly (Braverman 1981, p.754).

The U.S. Freedom of Information Act was first passed in 1966 largely in response to perceived abuses by government administrators in the withholding of information from the electorate. Thus, the act is relatively new from a U.S. history perspective although the need for an informed citizenry for the proper functioning of democratic societies is a concept which has existed since long before the time of our nation's founding.

One question which often arises about the FOIA in a GIS context is whether a private citizen may acquire an entire database produced by a U.S. government agency. The typical answer is yes and the rate charged for data sets is essentially the cost of duplication. There exists a general presumption of disclosure and the courts have held that records stored in a computer are available through the FOIA. Yeager v. DEA, 678 F. 2d 315, 321 (D.C. Cir. 1982). However, the form in which government chooses to distribute the record is sometimes contentious and legislative proposals which would grant citizens choices in the form sent to them have been submitted recently to Congress (for example, H.R. 3459 entitled "Improvement of Information Access Act of 1991," Congressional Record E3241-E3245, Oct 3, 1991).

In addition, if the digital data set is protected by one of the nine exceptions to the act, it may be withheld from disclosure. For instance, exception 3 protects agency records that are specifically exempted from disclosure by statute. Thus, the Landsat Commercialization Act of 1984 allows Landsat data sets to be sold at a much higher rate than the costs of duplication. It is noteworthy that allowing an exception for Landsat data and the resulting high costs for obtaining it have greatly curtailed the use of that data. This exception to the FOIA has been severely criticized by many professional, private sector, local government, and citizen groups (for example, Henderson 1990, Lauer et. al. 1991). Legislation introduced recently would address some of the concerns by allowing domestic non-profit entities and government agencies to acquire and use unenhanced Landsat data for non-commercial purposes for a charge similar to that imposed under the FOIA (National Remote Sensing Policy Act of 1991, Introduced by U.S. Rep. George Brown, D-Calif.).

Similar to the Landsat situation, there is a growing force within the local government GIS sector in the U.S. which strongly advocates altering state open records laws to exempt GIS data sets from the provisions of such laws. The reason for doing this, of course, is that local government administrators see a potential means of paying for the creation and maintenance of improved land information systems other than through general tax revenues. In these times of tough budgets, they see an opportunity to generate income through the sale of products and services resulting from their GIS operations. They also believe their income will be considerably reduced in providing these products and services if private firms and private individuals are allowed to copy these publicly financed spatial data sets at the cost of duplication.

Restricting access to public records goes against the plain letter language of most existing open records laws. Those who seek to change these laws must overcome the underlying policy arguments on which such laws are based, foremost of which is that open access keeps government accountable. In addition proponents of change will almost certainly encounter other credible policy arguments that favor free and unfettered access to public records.

For the sake of raising and exploring issues in support of the status quo of open records laws, arguments are constructed in support of the following proposition:

1. Government sanctioned monopolies are less efficient than private enterprise.

After a government department has gained an exclusive right to provide a specific service which generates income, there is little incentive for the government bureaucracy to improve that service. If a monopolistic government service makes a net income for the government, the operation is almost certain to be inefficient. In the land records area, the most obvious example is local registry of deeds offices. In a typical year, most of these offices in the U.S. have income far greater than the total expenses to run their operations (Jeffress 1991). Even in an extremely slow year for real estate transactions they seldom run at a loss. If they do, the simple solution to cover expenses is to raise recording fees rather than increase efficiencies. The captured users have no recourse but to pay. Because of their exclusionary nature and the fact that they almost always make a profit, most of these offices are at least a decade behind the proven technology which would allow them to increase the efficiency of their operations.

By analogy, if administrators of government-housed GIS have an exclusive right to set a price for government gathered data, there is little incentive for them to improve the database and its administration over time or to increase the products and services provided by the GIS. However, if a government program such as a GIS operation is a burden on general tax revenues, it is likely to be more efficient over time because it needs continual justification in the budgeting process.

In the private marketplace, competition promotes efficiency and innovation. That efficiency is passed to consumers which means that all users of the product or service gain. Thus, if twenty local engineering firms wish to copy a local government's GIS data sets en masse in order to better compete with each other in delivering services of value to the public, they should be encouraged to do so. Their need to remain competitive results in overall lower costs and more innovative products and services for the consuming public. Our federal freedom of information act supports this fundamental economic principle; that is, that private enterprise and the private marketplace are more efficient than government. If this policy makes good sense at the federal level, it makes doubly good sense at the state and local levels.

2. Cost recovery arrangements create bureaucratic overhead and legal disincentives to the sharing of geographic information.

In performing strictly governmental functions, local governments are provided with some measure of protection against liability for their actions through sovereign immunity. However, much of this protection may be lost if the governmental unit goes beyond its traditional public service missions and moves into areas which might be classified as private commercial functions in nature. It is likely that charging "user fees" for "value-added products" (i.e. products not necessary for the performance of government) with the intent of generating income in excess of expenses would be construed by the courts as making such a GIS operation a private commercial venture in nature. If a private enterprise offers products or services for sale, basic liability principles mandate that some level of acceptable performance in the delivery of services or the quality of products is required. To make clear what its level of performance will be in order to decrease its liability exposure, the local jurisdiction will want to enter into license, contract, or alternative formal arrangements with all those seeking "value-added" products from the GIS operation. In addition, the jurisdiction will likely want to use contracts or licensing to ensure that persons purchasing information products or services won't distribute copies of those records free to other potential customers.

Developing written contractual relationships will create an administrative burden on the department housing the GIS. There are likely to be significant fees for attorneys and consultants in establishing the formal process for dealing with user requests as well as continuing administrative expenses over time. Once a "closed information environment" based on contracts and licensing is established, we can also predict breach of contract law suits and persistent involvement of lawyers in our GIS operations in the future. Lawyers will be necessary to deal with issues such as intellectual property rights, liability, equal treatment, antitrust, undue competition, and similar issues.

Without user fee arrangements, an "open information environment" exists. If citizens want a copy of a GIS record, whether in paper or digital form, they are typically free to have it at the total cost of duplication. The government in effect is saying: "This is a copy of a record we made in the course of doing the government's business. It may or may not have been suitable for some governmental purpose and we make no guarantees, implied or otherwise, that it may be suitable for some purpose you intend." The courts are likely to uphold this traditional position of local governments and support their sovereign immunity. In such an environment, there is little need for contracts in meeting user requests for GIS records.

Even if a local government believes it has the ability to create a restricted GIS information environment, it still needs to question whether a sufficient market really exists for the planned "value-added" products it intends to sell. Is the expected income sufficient to more than offset the increased administrative trouble and expense? Will the markets for products continue over time even with advances in technology such that the GIS operation will continue to produce a significant income?

GIS systems are often justified in local and state governments based on the argument that they will reduce duplication of data collection and will promote sharing among government agencies, different levels of government, the private sector and the general public. The need to enter into contracts negates much of the willingness and practical ability to share and thus eliminates the benefits to be gained by sharing. If public GIS operations build walls made of contracts and licenses around themselves, it is difficult to see how these restrictive arrangements will foster cooperation and sharing with large numbers of citizens or other agencies.

Successful GIS operations in local governments in the U.S. have often been justified solely on cost savings and increased efficiencies and services in carrying out the currently defined statutory missions of that government. If a GIS project is possible and justified without pursuing cost recovery arrangements which go beyond traditional duplication charges, it can be argued that this is by far the preferred alternative. "Cost recovery" and "user fee" arrangements promote an increase in the size of government bureaucracy to produce services and products which are outside of government's role.

The underlying premise of these arguments is that local government agencies should be in the business of collecting and analyzing data only in support of their legislated public missions. If a GIS allows them to carry out these public missions more efficiently or to expand the services they can offer in support of their missions, local governments should by all means take advantage of the capabilities which GIS provide. However, if the implementation of a GIS operational environment in local government is justified only if "value-added" products and services are supplied and sold (i.e. those not necessary for the performance of government), perhaps the technology is not yet ripe for use by the government organization.

3. All other rights in a democratic society extend from our ability to access information. Democracy can't function effectively unless people have ready access to government information in order to keep government accountable.

GIS are being used and will continue to be used in local government to help make permitting decisions, planning decisions, tax assessment decisions, and decisions on where to spend tax dollars. A GIS may be used to determine how a child's school bus is routed, whether and when the street in front of one's home is fixed, and whether one is served by one emergency service rather than another. All of these decisions affect people personally. The right to access information about government is very different from the right to have consumer goods such as water or electricity delivered to our homes. Access to government information involves the basic right to know on what our government is basing its decisions.

We can readily determine whether the flow of electricity or the flow of water has been cut off to our homes. But how do we determine whether the flow of information has been cut off? We don't unless we have the right to inspect the entire body of records upon which the government is making its decisions. The potential for abuse is quite staggering if local government administrators have ulterior and inappropriate reasons for wanting to hold back information. For instance, individual citizens or citizens groups will find it virtually impossible to determine whether computerized gerrymandering has occurred in establishing the bounds of a district or in determining where tax dollars are going to be spent unless they can efficiently gain access to the same data sets. Cost recovery arrangements and contract negotiations over providing access to government housed GIS data sets provide a ready excuse for elected officials or government administrators to delay release of records or hold them back altogether. Because of the need to maintain confidence in our public administrators and elected officials and to avoid accusations that they may be holding back records about which citizens have a right to know, we should not restrict access to GIS data sets gathered at taxpayer expense simply because that information is commercially valuable to the government.

The arguments presented above are but a sample of the arguments which can be raised in support of open access environments for publicly held geographic information. Note that of the arguments raised, none speaks against expanding access to government databases through on-line services and charging fees to support those services. This presumes, of course, that on-line users are free to duplicate the government housed GIS files. Note also from the discussion above that arguments may be more aptly framed by addressing specific cost recovery arrangements (for example, arguments relative to the creation of an "information utility" as opposed to an in-house local government GIS service).

The intent of this article has been to present advocacy arguments but not necessarily to take an advocacy stance on one side or the other of the "open access" versus "cost recovery" debate. Rather, its intent has been to raise issues. Local governments attempting to cover GIS costs through some mechanism other than general tax revenues should be prepared to address the issues raised in the article. Counter arguments to those presented do exist and it is up to local jurisdictions to convince themselves of the appropriateness of the policies and practices they choose to pursue in implementing GIS in their locality.

Authors Note: In the next issue, I counter several of the arguments raised above as well as raise new issues in an article titled "In Support of Cost Recovery arrangements."

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