4) §67.1850 Public Policy 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

IV. Public Policy Analysis

A.             Let’s Talk About This

Engaging in a policy discussion over how local governments control the distribution of their GIS data is a proper, and ongoing, subject of discourse in many states.[105] 

In today’s data-driven world, we are seeing geographic data being generated, aggregated, and used in many different ways.  The accumulation of data from different sources such as crowd sourcing [and] authoritative [sources like local governments]…require the ability to access and combine a variety of data sources for the producers and aggregators of this vast amount of data.  The challenge is how to best manage, maintain, and provide access to the information.[106]

With the power of public data growing and with the civic capacity of software constantly evolving this ought to be a subject which the legislature ought to review regularly.

Ever accelerating changes in the availability of hardware and software have allowed individual users the capacity to effectively utilize publicly held GIS data.  Local governments will thus have increasing business incentives—in addition to any political demands from their own constituents—to provide timely, accurate, consistent, digital data. Many local agencies already maintain such data. Far fewer are prepared to provide it to others.  To respond to these incentives and demands in a business-like manner, local governments will need to formulate explicit data access policies.[107](Emphasis added)

How a state formulates its data access policies is often determined somewhat by its case law.  In the recent past the Missouri Department of Revenue attempted to collect fees from record requestors at a rate that covered the Department’s cost of operations.  However, the R.L. Polk Company thought better.[108]  There, the central legal issue in R.L. Polk v. the Missouri Department of Revenue was a proxy for what should be the foremost primary public policy question.  Should the state encourage the practice of setting data sales at cost-recovery price points, or should it be fully embracing data transparency because of the public benefits? The court held for transparency finding the legislature had made transparency its preeminent priority in:

Section 610.026.1(2) [which] specifically limits the fee for providing access to public records maintained on computer facilities to include only the cost of copies, staff time, and the cost of the medium used for duplication. In the context of transferring electronic records, the Department incurs these costs based on each request, whether it be for ten or all of the Department’s records, rather than based purely on the number of records sought in the request. Where a uniform per record fee is not expressly authorized by the statute, and where a per record fee for the transfer of electronic records does not correspond to or properly account for the types of costs listed in the statute, the trial court did not err in finding that the Department’s fee of 3.82¢ per record for records provided electronically through the internet was not in compliance with the requirements of section 610.026.1(2).

With the holding in R.L. Polk and with Mo. Rev. Stat. § 67.1850 both valid law, the current situation can be characterized as the people have a right to public records for the local government’s cost of reproduction, “[e]xcept as otherwise provided by law.”[109]  The Author has provided an argument that the current practice of charging elevated fees for use of a “system” can be defended, but Mo. Rev. Stat. § 67.1850 does not authorize elevated fees for data.  Thus, unless challenged it may remain a common practice, if not a legal one.  

On the cost-recovery side supporting arguments typically embrace the government’s reluctance to give something away for free to someone, possibly even an out-of-state corporation, who may earn a handsome profit from a product paid for by the taxpayers of the state.[110]  The Sunshine Law fee level supporting arguments typically center around the fact that the information was created because the state assigned the responsibility for its creation to the local government, the local taxpayer has already paid for its creation, and making the information available for the cost of reproduction allows anyone who has the data to make better decisions.[111] The local government’s information becomes a public good as George Cho describes the situation as one where:

“[I]nformation products may be regarded as public goods that are non-rivalrous and non-excludable.  Non-rivalry is taken to mean that the consumption of information does not diminish the capacity of another to use it.  Non-exclusion is understood to be where every user can have access to the information, even though it is being used by another (for example a navigation beacon).  The seller of the information still retains the dataset, even after its sale.”[112]

The side that espouses recovering the full costs of the Department’s operation from anyone, and ideally an out of state business, is considered by some focused on the bottom line of state and local budgets.  They consider cost recovery to be the only responsible path and the argument they posit generally goes as follows: 

“Profits from the public investment would flow to the local government, if it priced its products for cost recovery, or to the public at large if the local government set its prices at the cost of dissemination. The government price for the basic digital products would set a base price for value-added products and services, and customers’ prices would be limited by competitive pressures and by private individuals’ ability to get the basic data products directly from the local government.”[113]

However, as George Cho said “…geographic information…is intrinsically valuable as a resource that feeds in various ways into a technology, a discipline of study, and a science of knowledge.”[114] GIS data has the wonderful aspect of having a non-rivalrous character. Non-rivalry is a quality in which “the consumption of information does not diminish the capacity of another to use the information”[115]  Further,

GIS data on individual buildings and parcels cannot be compiled without the involvement of local government. Municipalities approve street names, assign addresses, and approve building permits. County officials record deeds and assign parcel identifiers. Private-sector firms can obtain imagery and compile maps, but, as…experience shows, the maps are of limited use without the identifiers, which can be created and maintained only in the course of local government operations.”[116]

Cho recognized that the public can leverage local government data for an almost unlimited number of public benefits, which when taken in sum vastly outstrip the benefits of a cost recovery scheme.[117]

Moreover, information products may be regarded as public goods that are non-rivalrous and non- excludable. Non-rivalry is taken to mean that the consumption of information does not diminish the capacity of another to use it. Non-exclusion is understood to be where every user can have access to the information, even though it is being used by another (For example, a navigation beacon). The seller of the information still retains the data set, even after the sale.[118]

If you have the same data the government does you can ask better questions and hold governments more accountable for its actions. 

B.             Economic Impact

Google recently commissioned a report to estimate the world-wide economic impact of the Geo Services sector.[119]  In that report the multiple industry producers were briefly classified but the majority of the report dealt with quantifying how the estimates were developed and then the quantification of the direct and indirect benefits.  The focus of the report was limited to economic impacts, positive externalities, direct benefits, consumer savings and wider economic effects.  Without mentioning the impact geo services on the efficiencies taxpayers gain by the increased levels of governmental transparency forced upon governments, regardless of size and complexity, ranging from the local sewer district up the scale to nations the Google report concludes that the geo services sector has an impact of $113 billion in global value added (GVA) annually out of a $70 trillion world economic GVA.[120]  These are revenue estimates ranging from $150 to $270 billion, or said another way, equal to about one third of the world air transportation industry.[121] “Because the uses for geospatial technology are so widespread and diverse, the market is growing at an annual rate of almost 35 percent, with the commercial subsection of the market expanding at the rate of 100 percent each year.”[122]  And “[c]ontinued major investments from the likes of Google, Microsoft, Apple, Amazon, and ESRI are making consumer-based mapping, location-based service applications and image-based maps truly ubiquitous.”[123]  In Missouri we ought to take the time to consider the importance of this sector of the economy and formulate a state data distribution policy that encourages our participation in this growing portion of the world economy.

C.             Why We Need to Change this Law

By allowing exorbitant fees and onerous data license agreements the state has incentivized poorly managed local governments – governments with something to hide – to push the records of as many of their government functions as possible under the mantle of “GIS operations.”    This inhibits transparency – which is the antithesis of the Sunshine Law. Further, the public has already paid for the creation of this data through taxes. A GIS data is a fruit of government that can be consumed by all to everyone’s who paid taxes benefit.

D.             Possible Solutions

There are many possible paths the State of Missouri might take if it wanted to enhance governmental transparency and while the Author hates to suggest another governmental approach, therein lays the first step.  It would be helpful to know the current state of affairs.  If some public or private organization were to be given the power to require all local governments to report their GIS data sales income for the past few years an analysis of those reports might yield a useful picture of the situation.  At the very least it could help the researchers discover if data sale are worth the potential drag on the state and local economies.

Another approach would be to implement a constitutional amendment like the California Public Records Act (PRA) making all public records, unless excluded, available to the public at cost, in the format in which they are stored.  A  well written amendment would carefully parse the difference between data and systems, as well as the difference between what is allowed in a data license agreement and what rights the local government should be prohibited from reserving to itself.

While not an ideal solution in itself, repealing the more egregious portions of the statute would allow GIS records to be conveyed to the public at a rate allowing the government to recoup its cost of reproduction.  Perhaps adding a statement to the Sunshine Law indemnifying local governments against claims based on the public disclosure of their GIS might be a solid place to start.  A proposed replacement statute or modifications to Mo. Rev. Stat. § 67.1850 is attached at the end of this paper.

An additional topic to consider is controlling the manner by which local governments might set their data pricing policies.  By incorporate pricing and license guideline in a revised Statute, provided the state still determines elevated prices are appropriate, the state could limit the more egregious pricing schemes some local governments have instituted. 

A study the economic impact of the current state of affairs is having is also warranted.  If the Missouri were to look to other states and gauge the impact various pricing schemes are having on those state’s economies, a better state policy might be crafted via modifications to Mo. Rev. Stat. § 67.1850 or the Sunshine Law.  Whatever we do as a state it shouldn’t involve keeping the status quo.

Next 5) §67.1850 Conclusion

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