3) §67.1850 Legal Analysis

Author’s Note: In 2014, as a law student at the University of Missouri–Columbia School of Law, I wrote an analysis of Missouri Revised Statute § 67.1850. That’s the Missouri statute which grants local governments several unusual powers and great control over the public’s right to access government-held GIS data. My view is that the statute’s enumerated powers run counter to good economic development practices, common sense, and the principles supporting the public’s right to government transparency as codified in the Missouri Sunshine Act. This article makes my case for either repealing or reforming § 67.1850. I’m not just repackaging an old paper for the web. I’m going to update, enhance, and provide links that demonstrate how Missouri’s local governments are misusing the statute, and ultimately harming themselves. – Chris Dunn

III. Legal Analysis

A.             Missouri’s Sunshine Law

There has long been a common law right for Missouri citizens to inspect and copy public records which predates the codification of these rights in 1961 by Mo. Rev. Stat. § 109.180[45] and in 1973 by Missouri’s Sunshine Law which is codified in Mo. Rev. Stat. § 610.010.[46]  The purpose of the Sunshine Law is made clear by well-established case law unvaryingly espousing that “[t]he public’s right to inspect…public records comes not from any personal interest in the subject matter of the records. Rather, the right stems from the public’s presumed interest in the integrity and impartiality of its government.”[47]  “[O]pen records do not simply accommodate the public’s amusement, curiosity, or convenience. Instead, it is simply beyond dispute that public records are freely accessible to ensure confidence in the impartiality and fairness of the judicial system, and generally to discourage bias and corruption in public service.  “[48] 

With such civic minded aspirations the Missouri Legislature ensured the Sunshine Law applies to both the local and state levels of government and encompasses the public’s right to transparency in both public meetings and public records.[49]  This paper only addresses those portions of the Sunshine Law pertaining to public meetings.  Further, it focuses only on issues related to GIS data records held by local governments.  There are three subject of the Sunshine Law pertinent to this discussion being the questions of  (1) what is a public record, (2) what is a copy of a public record, and (3) what will obtaining that copy cost the requestor. 

1)                  What is a public record

Public records are those records held by a local unit of government which are both available to the public, and which are not specifically listed as being excluded from release to the public as found in Mo. Rev. Stat. § 610.010.6.[50]  Knowing the role the Missouri Legislature intended the law to play in Missouri will be of assistance to this effort.  The Sunshine Law’s aspirational statement is found in Mo. Rev. Stat. § 610.011 and it propounds that the Sunshine Law is to be liberally construed.[51]  Thus, unless specifically excluded by statute the legal presumption is that a publicly held document is a public record and the burden is on those who would not release the record to prove it is properly among the records excluded from release under the Sunshine Law.[52]  Exclusions are to be narrowly defined, and generally the test is who holds the record, not the type of record.[53]

2)                  What is a copy of a public record

What counts as a copy of a record is the second area of inquiry.  In Missouri a citizen is entitled to receive a copy of the record in the same format in which it is stored.[54] The government cannot provide the record in X format if it is stored by the government in Y- format without the agreement of the requestor.[55]  Additionally, there are many different electronic formats are commonly used with GIS data.[56]  

3)                  What will obtaining the copy cost the requestor. 

The third area of inquiry is determining the allowable fees a government may charge for fulfilling a public record request.  Under the Sunshine Law a citizen requesting a copy of the record is entitled to receive a copy of the record at a reasonable cost related to the government’s expense in making a copy of the record.[57]  The government may not charge for the cost of developing the record.[58]  However, the Sunshine Law allows the government to recover its costs for the staff time and materials expended fulfilling the records request.[59]

Importantly, a local government is prohibited from charging the data requestor for either the market value of the record or a fee designed to recover the cost of its general operations, unless otherwise authorized.[60]  This question of the legitimacy of cost recovery as a way around the fee caps found in the Sunshine Law came up most recently in 2008 when R.L. Polk sued the Missouri Department of Revenue challenging the Department’s 2008 rate increase for the electronic transfer of Missouri drivers’ records.[61] 

The Department raised the price from an average of .23 cents a record to a flat $7.00 a record.[62]  Calculations by Department staff yielded a $7.00 per record transfer fee was necessary to buy the Department a new computer system and fund the annual cost incurred in maintaining the state’s seven million drivers’ records.[63]  The trial court and the appellate court held:

“[T]hat the motor vehicle and drivers’ license records were public records within the meaning of Missouri’s Sunshine Law.  The court further concluded that, instead of complying with the fee limitations of the Sunshine Law, the Department improperly imposed the $7.00 per record charge in order to fund a new computer system.”[64] 

In summary, under the Sunshine Law discussion it is established that a citizen of Missouri may request a copy of electronic public records held by a local government and that citizen may expect to pay a reasonable fee based upon the time and materials expended by the government’ efforts to fill the record request.  The citizen is under no obligation to fund the operations of the local government with the fees she pays to obtain copies of public records, unless she is requesting GIS data.   

B.             Mo. Rev. Stat. § 67.1850 Modifies the Broader Sunshine Law

While defining GIS and authorizing local governments the use of GIS technology and techniques it offers, Mo. Rev. Stat. § 67.1850 substantially alters a subset of all public records.[65]  Section 1 is definitional and applies the statute to all forms of local governments, but not the state.[66]  Then in Section 2, the GIS statute begins to carve away public records from the Sunshine Law.  Section 2 is a mostly fallacious preamble, and is believed by the Author to have been designed to rationalize the cost recovery scheme of the statue which follows.[67]   The last half of the section pays homage to the Sunshine Law by stating local government held GIS data is subject to the Sunshine Law.   However, while affirmatively stating Mo. Rev. Stat. § 67-1850 is in accord with the Sunshine Law the statute’s effect runs counter to Mo. Rev. Stat. § 610.011 which states the Sunshine Law is to be liberally interpreted.[68]  Section 5 also uses the curious term “special benefit” which is discussed in the footnotes.[69]

Section 3 authorizes a local government to create a GIS and restricts them from forcing others to use it.[70]   Section 4 again purports to maintain the fiction from Section 2; that the statute continues to treat local government held GIS data as a public record in conformance with the Sunshine Law, but requires anyone requesting the data in an electronic format first sign a data license agreement.   Data licenses are discussed later in this paper.

Section 5 deals with citizen requests for data in GIS format and states that “Information collected or assimilated by a community for use in a geographical information system and disclosed in any form, other than in a form which may be read or manipulated by computer, shall be provided for a reasonable fee, as established by section 610.026.”[71]  This language is erroneously read by some as establishing an elevated fee for data in a GIS format, and this subject is discussed later in this paper.[72] Section 5 continues by requiring local governments operating a GIS to provide non-electronic products of the GIS to the public for no more than the fee rates allowed under the Sunshine Law. [73]  The last two sentences of Section 5’s first paragraph and the two subsections below are asserted by some –erroneously – as allowing the local government to charge elevated fees for the use of its GIS data when it only authorizes elevated fees for use of the “system.”[74] 

A plain reading of the legislatures words “Geographic Information System” must include at the very least access to the GIS data and the use of some form of GIS software – wherein the “system” emerges.[75] Conversely, data is not a system as the California Supreme Court recently ruled, implying that Orange County California conflated system with data to deny an applicant a copy of the data base for the cost of duplication.[76]  “We hold that although GIS mapping software falls within the ambit of this statutory exclusion, a GIS-formatted database like the OC Landbase does not. Accordingly, such databases are public records that, unless otherwise exempt, must be produced upon request at the actual cost of duplication.”[77]  The only factual difference between a hypothetical case alleging no right to by the local government to charge elevated fees being brought in Missouri seeking GIS data at the actual cost of duplication is that California has adopted an amendment to its constitution known as the Public Records Act.[78]  In Missouri, such a suit might start by conceding that the local government has the right to require a data license agreement, but then it would assert that the plaintiff has a right under the Sunshine Law to the records in GIS format, by asserting that the local government is reading Mo. Rev. Stat. § 67.1850 erroneously when it claims Mo. Rev. Stat. § 67.1850 grants it the right to charge elevated fees.

Section 5 concludes by providing several methods by which the local government may calculate the fees it charges for the use of the systems and if each of these methods were applied to the cost of data they are potentially fees well beyond those authorized by the Sunshine Law. [79] Section 6 is where the statute appears to give special access preferences to some groups over those allocated to the public as well as where the statute makes a second statement, like in section 5, authorizing the local government to license the GI System.[80]  

“The provisions of this section shall not hinder the daily or routine collection of data from the geographical information system by real estate brokers and agents, title collectors, developers, surveyors, utility companies, banks, news media or mortgage companies, nor shall the provisions allow for the charging of fees for the collection of such data exceeding that allowed pursuant to section 610.026. The provisions of this section, however, shall allow a community maintaining a geographical information system to license and establish costs for the use of the system’s computer program and computer software, and may also establish costs for the use of computer programs and computer software that provide access to information aggregated with geographic information system information.”[81] (Emphasis added)

Finally, in Section 7 the local government is shielded from damage claims by persons asserting error in the data or the system.[82] 

C.             Practical Implications of Mo. Rev. Stat. § 67.1850

Under Mo. Rev. Stat. § 67.1850 if a citizen requests a copy of public records that take the form of GIS data the rules clearly change. [83]   First, the local government may require the citizen to sign a license agreement before she is provided a copy of the GIS data set.  While this requirement is not onerous if the agreement keeps to the spirit of indemnifying the local government from claims alleging data errors caused requestors harm as found in Mo. Rev. Stat. § 67.1850, it can serve as a de facto barrier against a public records request.

As discussed earlier in the paper[84] the statute is used by some local governments – erroneously to charge a citizen requesting the local government’s GIS data – in the same GIS format in which the government holds it – much more than the cost of materials and staff time expended in the duplication of the public record. [85] 

1)                  Requiring a Data License

First, addressing the data license’s potential use as a barrier to obtaining public records, please note that if the data requestor does not agree to sign the data license agreement the statute states the local government may provide the data in a format other than electronic.[86]  The Author’s professional experience as a cartographer working in Missouri has shown that allowing the local government the option to provide an alternative to the GIS data if the records requestor finds the data license agreement the local government presents unconscionable, allows the local government to elevate its fees to levels equal or exceeding the elevated fee rates required for digital GIS data. This is a potentially problematic area of the Statute the legislature didn’t likely foresee.  Due to the size of some GIS files, a printout of a GIS file could cost thousands of dollars.

However, if these local government were to use the license agreement in a manner consistent with Section 7 of the statute – which declares the local government is not liable for damages for the use of its GIS data or system – such a provision would not likely be found objectionable as it aligns with most people’s sense of fair play and the sovereign’s right to reserve for itself immunity.[87] 

2)                  Adding Extraneous Provisions to the Data License Agreement

However, such is not always the case in Missouri because some local governments are asserting, not only freedom from liability, but some are additionally asserting that their (1) “GIS files are the proprietary intellectual property of the [l]icensor” for which they also assert federal and state copyright protection over their GIS data sets;[88] (2) restrictions on the allowable uses of the data by the requestor; that the (3) GIS data sets are not public records; and a host of (4) other asserted rights – always in the local government’s favor – and numerous other restrictions on the rights of records requestor.[89] Each of the asserted rights and restrictions as described exist well beyond the provisions of the Sunshine Law and many other powers of local governments.[90]  Finally, some data license agreements also proscribing some uses of its data by the licensee.  The validity of such restrictions is under discussion in GIS and open data communities worldwide.[91]  There are a number of statutes in Missouri addressing end-use-restrictions of state data and the analysis of such a requirement by a local government that are worthy areas of exploration, but beyond the scope of this paper.[92]

3)                  The False Equivalences of Record Format Substitutions

Under Mo. Rev. Stat. § 67-1850.5 the state legislature allowed local governments to provide a print out of the GIS data as an alternative way of fulfilling the records request in cases where the requestor will not sign the local government’s data license agreement.  As has been previously shown, unless the requestor submits to what the Author suggests are unconscionable contracts of adhesion, they may be provided with a reproduction of the data they requested, but not the true record itself.[93]  

A paper print out of a GIS data layer or a map is not the material equal of the electronic GIS record.[94]  For example, if a request was made for the aerial photos of a portion of a county and a color paper print out were provided, the print outs are missing key information that is a part of the public record.   Additionally, a printout does not truly transmit many aspects of the data that are critical to running a query within GIS software. The print outs do not convey the digital accuracy of the electronic data regarding the true numerical wavelength reflected from the surface under observation.  The printouts do not convey the accuracy of the spatial distribution of the image, the Metadata of the image, nor does a printout allow for an exact reproduction of the original electronic data file which was withheld by the local government.  The two output methods are not the equal of each other.   The electronic record contains the only true public record.

4)                  Driving Up Costs with Record Format Substitutions

The cost is also an issue where at the discretion of the government the substitution of the form of record provided is allowed.  If a local government were allowed to provide paper printouts of the data it could drive the cost of the record request to astronomical levels.  And has been previously illustrated the local government can modify their data license agreement or elevate their GIS data duplication fees to the point where the price for a record is so high it presents a practical barrier.

For example, printing the 2012 aerial photography of Buchanan County, Missouri at a scale of 1 inch equaling 10 feet on the ground, which is  – in the Author’s opinion the minimum scale necessary to scan the information to allow for its reassemble as a GIS layer –  would require approximately 2052 8.5” x 11” color print outs.  Even if the requestor were charged the bargain price of 25 cents per color copy, the price would be $513.00.  The cost to burn the same layer to a DVD-R is about $5.00 a DVD.    To allow discretion on the part of the government as the deliverable format may be used to deny the public access to information.

Here again, Mo. Rev. Stat. § 67-1850 is in direct conflict with Mo. Rev. Stat. 610.023(2) when the local government controls the exclusive right to the format in which it will release data.

“No public governmental body shall…grant to any person or entity, whether by contract, license or otherwise, the exclusive right to access and disseminate any public record unless the granting of such right is necessary to facilitate coordination with, or uniformity among, industry regulators having similar authority.”[95]

5)                  Employing a Cost Recovery Rationale

Under the Sunshine Law, fees may not exceed the cost of reproduction and staff time involved.[96]  But, the second barrier occurs in situations where the citizen may be charged any price a local government might decide to charge for its GIS data in an electronic form; data which is otherwise a releasable public record.  Generally supporting Mo. Rev. Stat. § 67.1850 in charging excess fees, is the 2010 holding by the Missouri Southern District’s Court of Appeals in Webster County Abstract Co., Inc. v. Atkison, where the abstractor filed suit alleging the County Recorder of Deeds practice of charging a flat per record charge for all citizen requests for copies of public records held by that office violated the Sunshine Law, specifically Mo. Rev. Stat. § 210.026.[97]   Charges in excess of those prescribed in the Sunshine Law were held valid by the court citing the language found at the opening of Mo. Rev. Stat. § 610.026, “[e]xcept as otherwise provided by law.”  Mo. Rev. Stat. § 59.130 allows up to $2.00 for the first page, and a charge up to $1.00 for each additional page.   The court recognized that the charges were not related to costs, but were instead authorized by the legislature even though the fees had no defined association to the Recorder’s actual cost of reproduction or staff time. 

D.             Erroneous Applicability

Another issue that seems to be occurring is the conflation of two separate sections of the statute being used by local governments to charge the elevated fees.  Under Mo. Rev. Stat. § 67-1850(3) when someone requests a copy of GIS data that person does not become a user of the local government’s GIS “system” who would then be subject to elevated user fees above those allowed by 610.026.

E.              A Brief Statutory Analysis

Arguments that the GIS statute is in conflict with the Sunshine Law are not a basis to argue the GIS statute is vulnerable to challenge.   “We will look beyond the plain meaning of the statute and to the rules of statutory construction only when the language is ambiguous or would lead to an absurd or illogical result.”[98] Thus, under principals of statutory interpretation it is generally accepted that the state may make narrow exception to a broader law, especially if the exception was adopted after the broader law. [99]

“Where there is one statute dealing with a subject in general and comprehensive terms and another dealing with a part of the same subject in a more minute and definite way, the two should be read together and harmonized if possible, with view to giving effect to a consistent legislative policy, but, to extent of any necessary repugnancy between them, the special law will prevail over the general statute and, where special statute is later, it will be regarded as an exception to, or qualification of, prior general statute.”[100]

However, “review begins with the recognition that all statutes are “presumed to be constitutional and will not be held unconstitutional unless [they] clearly and undoubtedly contravene[ ]the constitution.”[101] Even if Mo. Rev. Stat. § 67-1850 were clearly absurd[102] and no substantive argument could be made in support for.[103] any remediation of the effects of Mo. Rev. Stat. § 67-1850 should rightly to be sought from the Legislature.[104]

Next 4) §67.1850 Public Policy Analysis

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