WLIA – Hour 2

LEGAL ISSUES IN GIS

WLIA – Hour 2

2023 WLIA Conference Workshop

Workshop 3 – Legal Issues in GIS

Presenter: Chris Dunn, GeoVelo Geospatial Forensics

Where: Kalahari Resort, 1305 Kalahari Drive Baraboo, WI 53913 United States – Marula Room

When: Wednesday, February 22, 2023 8:00 AM (CST) to 11:30 (CST

Hour 1: Geospatial Case Law:  With a special focus on YOUR personal legal liability, copyrights, contracts, open records, and more.

Hour 2: The Many Ways Geospatial People End Up in Court: 1) Making embarrassing mistakes; 2) You are the GeoExpert; 3) You made the geospatial demonstratives for court; and over twelve more ways.

Hour 3: Geofence Warrants (an emerging legal issue): Geofence warrants have proven to be an effective tool to help prosecutors and police make their case, often when no other evidence leads to a suspect. They are the latest intersection between the geospatial profession and law enforcement. In some jurisdictions prosecutors petition judges to authorize warrants which scrutinize one or more national location databases, containing location records of every citizen in the US with a smartphone.  Many legal scholars say it’s the details of how those data are obtained from the warrant, selected, processed, and then presented in court which may, or may not, offend long-established Constitutional protections found under the 4th and 5th Amendments. We’ll avoid politics in this session and focus on how a Geofence Warrant might affect you professionally.  

Q&A: I love questions and you can ask them at any time during our session.  So, please bring your questions to the conference or email them ahead of time to Chris (.) Dunn @ Geo Velo (.) com

The Obligatory Legal Disclaimers

Public Sector Disclaimer: If you work for a public sector employer your organization* already has an attorney. If what you hear or learn today differs from what your attorney says – he or she is correct, and I am wrong. *This attorney is not at all concerned with protecting your personal legal interests.

Private Sector Disclaimer: The Missouri rules of professional conduct require us to remind you that; the choice of a lawyer is an important decision and should not be based solely upon advertisements. And I don’t want to be your attorney.

The Ways Geospatial People End Up in Court –WGPEUIC

WGPEUIC: You are Offering Evidence

  • TRANSCRIPT OF PROCEEDINGS – ANTHONY WILLIAMS, Petitioner, v. JEFF NORMAN, SUPERINTENDENT, JEFFERSON CITY CORRECTIONAL CENTER, Respondent. IN THE CIRCUIT COURT MISSOURI 19TH JUDICIAL CIRCUIT, DIVISION II HONORABLE DANIEL R. GREEN, JUDGE
  • “He’s the best map maker in the whole world, I assume, and his model is a true and accurate representation of what he gleaned from the reports, do you have another witness to come in to say that it was physically impossible?” – Referring to Chris Dunn on February 4, 2013.


WGPEUIC: You created or provided materials which may be used in civil court.

  • 1000 Friends of Oregon v. City of Dundee, 124 P.3d 1249, 203 Or. App. 207 Or, 2005
    • Petitioner Columbia Empire Farms, Inc., seeks judicial review of an order of the Land Use Board of Appeals that affirmed the City of Dundee’s amendment of the city’s comprehensive plan to implement the construction of a bypass, the Newberg-Dundee Transportation Improvement Project, along Highway 99 West…..First, petitioner argues that the city’s amendment to its comprehensive plan is flawed because its determination that the implementation of the bypass project complies with Statewide Land Use Planning Goal 10….
    • The relevant facts are not in dispute….”Within the past few years, the City of Dundee has updated population projections, buildable land inventories, and land need projections for various categories of land use…. Based on GIS [geographic information systems] information submitted to the record, ODOT estimates….

 
WGPEUIC: You use the terrible power of ‘Global Imaging Systems” to fight crime

  • State ex rel. O’Brien v. Heimlich, 2009 Ohio 1550 Ohio App., 2009
    • Defendant-appellant, Michael A. Heimlich, appeals from a judgment…seeking to enjoin appellant from residing within 1,000 feet of a school premises…. [due to] residency restrictions for certain sexually oriented offenders. …. the trial court determined that appellant is not a habitual sex offender, but a sexually oriented offender …. [and] ordered appellant to register as a sex offender…
    • On March 29, 2007, appellee filed a complaint a…seeking to enjoin him from residing… within 1,000 feet of a school premises, including Dana Elementary School…
    • Appellant answered appellee’s motion with a memorandum contra and cross-motion for summary judgment, raising four issues.
      • 1 Appellant first argued that the deputy auditor improperly utilized the straight-line method to measure the distance from appellant’s residence to Dana Elementary.
      • 2 Appellant also argued that the deputy auditor’s testimony alone was insufficient to establish the distance between appellant’s residence and the school premises.
      • 3 In addition, appellant contended that appellee failed to establish that Dana Elementary is a “school premises” for purposes of former R.C. 2950.031.
      • 4 Finally, appellant argued that R.C. 2950.031 violates his constitutional rights to travel, due process, and privacy.
    • We note that former R.C. 2950.031A is silent as to how the distance between an offender’s residence and a school premises is to be measured.
    • Appellee supported its motion for summary judgment with the affidavit of Anthony Frissora, a deputy auditor employed for over 15 years in the Real Estate Division of the Franklin County Auditor’s Officer. Frissora Affidavit ¶3-4. Frissora attested that he utilized a global imaging software “GIS” tax map database maintained by the auditor’s office to determine the distance between Dana Elementary and appellant’s residence. He further stated that he is familiar with the technical specifications and capabilities of the GIS tax map database. Heals testified that the GIS tax map database complies with the United States National Map Accuracy Standards and may be utilized to determine the distance between two parcels of property.
    • Frissora also stated that the GIS tax map database may also be utilized to list all properties within a specified distance of an identified parcel of property. He further attested that the GIS tax map database can determine the distance between two points within a margin of error of two and one-half feet. Utilizing the GIS tax map database, Frissora determined that Dana Elementary is approximately 625 feet from appellant’s residence at 303 South Yale Avenue.

WGPEUIC: You testify to the source and methods used to create evidence used in court

  • State v. Swinton, 847 A.2d 921, 268 Conn. 781 Conn., 2004
    • The defendant, Alfred Swinton, appeals from the judgment of conviction, rendered after a jury trial, of one count of murder… The defendant contends that the state did not present foundation testimony on the adequacy of these two programs for the task of matching the defendant’s dentition with the victim’s bite mark because the computer enhanced and computer-generated exhibits were introduced through experts with no more than an elementary familiarity with the programs. Therefore, the defendant argues, the admission of this evidence violated his constitutional right to confrontation. The state responds that the exhibits were merely photographic or illustrative evidence, not scientific evidence, and therefore did not require the testimony of a witness who could explain the inner workings of the equipment that produced it in order to provide an adequate foundation. We conclude that the trial court properly admitted into evidence the computer enhanced photographs, but improperly admitted the superimposed images created by Adobe Photoshop.
      2.4.3 According to the defendant, the law governing the admissibility of scientific evidence is applicable to the question of admissibility of computer enhanced and computer-generated evidence. The dominant standard for determining the admissibility of scientific evidence is Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 1993.
    • In Daubert, the United States Supreme Court concluded that a two-part inquiry should govern the admissibility of scientific evidence: “whether the reasoning or methodology underlying the testimony is scientifically valid and . . . whether that reasoning or methodology properly can be applied to the facts in issue.”
    • The question presented here goes to the requirement that evidence be reliable so as to satisfy the requirements of the confrontation clause….
    • The questions regarding the reliability of the evidence in issue in this case look beyond the reliability of the underlying information to whether the evidence had been generated by someone and something that gives the court confidence that the defendant’s confrontation rights have been honored.
    • “Our standard of review of an evidentiary ruling is dependent on whether the claim is of constitutional magnitude. If the claim is of constitutional magnitude, the state has the burden of proving the constitutional error was harmless beyond a reasonable doubt.
    • Otherwise, in order to establish reversible error on an evidentiary impropriety, the defendant must prove both an abuse of discretion and a harm that resulted from such abuse.
    • In the present case, the defendant claims that the admission of this evidence without a proper foundation obstructed his constitutional right to confrontation. “The sixth amendment to the constitution of the United States guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him.
    • This right is secured for defendants in state criminal proceedings.
    • [T]he primary interest secured by confrontation is the right of cross-examination.
    • Although much of Palmbach’s testimony concerned how the Lucis program worked, he was not qualified as an expert in computer programs, generally, or in Lucis specifically, nor was he qualified as a programmer. Palmbach testified that he was not aware of how the computer makes the distinction as to how many layers there are in an image, or what the algorithm is, or how the algorithm actually sorts the layers. Although he testified that error rates are a cause for concern within the scientific field, he had not seen any published error rates concerning the Lucis program. Additionally, Palmbach testified that Lucis did not create any artifacts in its enhancement process.
    • On appeal, the defendant argues that the evidence at issue resembles composite photographs, and therefore, should be governed under a similar standard. With respect to composite photographs, “[t]he moving party must present witnesses with firsthand knowledge of how the composite was prepared and of how accurately it portrays that which it is intended to depict.” State v. Weidenhof, 205 Conn. 262, 275, 533 A.2d 545 1987.
    • The defendant also claims that because this evidence actually was created by and through the use of a computer, it is computer generated evidence, and thus entails additional foundational requirements.

WGPEUIC: You made the thing they are fighting over.

  • In re the Adoption of N.J.A.C., N.J. Super., 2011
    • This appeal asks us to decide the legality of two provisions of the…Water Quality Management Planning Rules WQMP Rules, …. which set policies and procedures for State, County and area water quality management planning.
    • Environmentally sensitive areas shall be defined based on a composite geographic information systems GIS analysis, as any contiguous area of 25 acres or larger consisting of any of the following features alone or in combination:
    • Areas mapped as endangered or threatened wildlife species habitat on the Department’s Landscape Maps of Habitat for Endangered, Threatened or Other Priority Species. The data are available as a download at the Department’s webpage http://www.nj.gov/dep/gis/listall.html titled “Landscape Project Data”;
    • Areas mapped as Natural Heritage Priority Sites, excluding those lands within the boundaries of these sites mapped in the “Urban Lands” layer extracted from the Department’s 1995/97 and 2002 Land Use/Land Cover geographical information systems database as amended and updated. Both the Natural Heritage Priority Site data and the Urban Lands data are available as a digital data download at the Department’s webpage http://www.nj.gov/dep/gis/listall.html titled “Natural Heritage Priority Sites”

WGPEUIC: You are the plaintiff or defendant’s star expert witness – maybe even for hire.

  • Lucas v. City of Waverly, Tenn. App., 2011
    • In this inverse condemnation action, the trial court granted summary judgment to condemning authority on ground that statute of limitations barred suit; landowner appeals. Condemning authority urges affirmance of the dismissal on alternative grounds. Finding that the action is not barred by the statute of limitations and that genuine issue of material fact exists which precludes summary judgment, we reverse the dismissal of this action and remand for further proceedings.
    • Defendants also filed the affidavit of Roger Jones, Geographic Information Systems GIS Technical Supervisor II with the Tennessee Comptroller’s Office, who had been asked by counsel for Defendants to assist in locating the western boundary line for Highway 13. The affidavit states, in part pertinent to this discussion:
    • I have reviewed the survey data compiled and labeled on the ‘new’ Highway 13 plans and I have reviewed the 1939 Highway 13 plans. I was able to match up the centerline of the old plans with the centerline of the ‘new’ Highway 13 survey information. These two plans are part of the overlay exhibit. The centerline is considered to be one of the monuments of Highway 13 and they were located by the survey for the newer Highway 13 plans. In my opinion, the ‘exist. and prop. ROW’ line as shown in DB 184, pp 1679-1680 is Lucas’ eastern boundary line. That line hasn’t changed since the 1939 plans were drawn to the best of my knowledge, information and belief.

WGPEUIC: You got dragged deep into the geospatial weeds.

  • Young v. Nationwide Mut. Ins. Co., 693 F.3d 532 6th Cir., 2012
    • Plaintiffs, insureds of Defendants, allege in this diversity action that they were assessed incorrect charges for local government premium taxes as a result of Defendants’ failure to correctly identify the taxing jurisdiction in which the insured risks of each of the policyholders were located.
    • Kentucky has a unique system of taxation that authorizes local governments to impose a tax on insurers for the premiums the insurer collects on its sale of certain insurance products.…The statute also allows the insurer to charge a “reasonable collection fee” as compensation for collecting the taxes that are remitted to the particular local government authority and most insurers, including all Defendants, pass the tax itself on to the insureds along with the collection fee….
    • …Plaintiffs…claim [] that their insurer charged them a local government tax on their premiums when either the tax was not owed or the tax amount owed was less than the insurer billed. Plaintiffs allege that these miscalculations of premium tax obligations were unlawful under various state law causes of action.
    • It is often the case that class action litigation grows out of systemic failures of administration, policy application, or records management that result in small monetary losses to large numbers of people. To allow that same systemic failure to defeat class certification would undermine the very purpose of class action remedies.
    • Plaintiffs further support administrative feasibility through expert evidence that Defendants’ policy records are in a form compatible with geocoding software. Such software uses geographic information systems technology to verify the precise location of any address and has been used to process local-tax-jurisdiction data. Plaintiffs’ software expert, Paul Manning, was permitted to testify after an earlier, separate Daubert hearing 5 that he believed Defendants’ data is in a format that can be used in conjunction with geocoding software. Although Defendants argue that Manning opined beyond his training, the district court’s ruling on admissibility was limited and also noted that the software would be used to assist in identifying potential class members and would be used in conjunction with manual review.
    • Defendants argue that their own software expert, Craig Knoblock, provided the only testimony about the accuracy of the geocoding programs and he opined that the error rate could be between 5 and 30%.
    • Alleging that the error rate could be great, Defendants argue geocoding provides no assistance in identifying potential class members. As noted above, it is difficult to understand why Defendants should be able to avoid a class suit even if Plaintiffs did not offer a means to escape the burden of identifying class members. See Slapikas, 250 F.R.D. at 250 finding class action manageable despite assertion that “no database exists easily and efficiently to make the determination that would be required for each file”. Regardless, the district court did not fail to consider Knoblock’s testimony or fail to look beyond Plaintiffs’ submission that the geocoding programs are reasonably accurate. The district court noted that an error rate was essentially unknown and that Knoblock’s error range was not dispositive for this program. The court noted that geocoding programs have been used in settlements of other class litigation over the same local taxation system and, in fact, the specific program used by Plaintiffs has been approved by the Kentucky Department of Insurance “KDI” as one verification program among several that the KDI now mandates insurers utilize. Therefore, the record before the district court supports its determination that the class was administratively feasible using a geocoding software program and manual review.
    • Although Defendant Kentucky Farm Bureau argues that its tax assignment process is more reliable than the other insurers and it is unreasonable to attribute a 1% error rate to its practices, Kentucky Farm Bureau also has one of the larger number of policies among the named Defendants. As Plaintiffs point out, even if the error rate were reduced to 0.0001%, the class would consist of approximately 69 members. See In re Am. Med. Sys., 75 F.3d at 1076 noting that this circuit had found a class of 35 to be sufficient to meet the numerosity requirement. The court did not abuse its discretion in finding numerosity satisfied.
    • Plaintiffs present two facts common to the class: 1 whether each member was charged an incorrect amount for local government premium taxes; and 2 whether the insurer had a uniform, institutional policy or practice to identify local government taxing districts for its insureds. Plaintiffs present seven common legal questions:
      • have Defendants engaged in unlawful billing practices and illegal dealings contra to Kentucky’s illegal Dealing in Premium statute, Ky.Rev.Stat. Ann. § 304.12–190;
      • is a “charge” on a premium a tax within the meaning of the Illegal Dealing statute;
      • does “willful” under the Illegal Dealing statute require individual proof of intent;
      • does Defendants’ collection of taxes that were either not owed or at rates higher than permitted constitute conversion;
      • are Defendants authorized to charge their customers a collection fee that is in addition to an otherwise lawful premium tax;
      • do Defendants owe Plaintiffs and class members a duty to use best methodologies available to determine the applicable local government premium tax; and
      • does Defendants’ charge of additional fees to Plaintiffs and class members violate Kentucky Department of Insurance regulations for servicing the collection of municipal taxes imposed by local governments.
    • Because the named Plaintiffs allege that geocoding verification procedures would have prevented both their tax misassignment, notwithstanding the allegedly garbled voice mail message, and the tax misassignments of the class members generally, Plaintiffs have satisfied the elements of both commonality and typicality. Common proof of causation—that use of geocoding software could have prevented the harms suffered by the class members—is central to all of Plaintiffs’ claims and would advance the interests of the class as a whole.
    • For example, for several insurers involved in this appeal, the district court identified the number of policy transactions during the class period, through the time of briefing, involving assignment of a risk location as follows:
      • 1 State Farm, 7,027,320;
      • 2 Nationwide, 339,587; and
      • 3 Kentucky Farm Bureau, 6,970,763.
    • Defendants argue the district court did not conduct a full Daubert analysis of Manning’s qualification to testify about the accuracy of geocoding software. This argument is incorrect for two reasons:
      • 1 Manning was not offered to testify about the software’s accuracy, nor did the district court rely on any such statements; and
      • 2 the district court fully considered Manning’s qualifications as they related to his offered testimony on Defendants’ data’s compatibility with the software and stated it passes a “limited or full Daubert analysis.” Emphasis added.
    • In an earlier decision, the district court in this case held that exhaustion of those administrative remedies was not mandatory for policyholders prior to the recent amendments. Defendants do not challenge that decision and argue only that the class action vehicle is not superior to the administrative option.


WGPEUIC: You Control Who Obtains Your Data

“Missouri’s commitment to openness in government is clearly stated in…the Sunshine Law – “It is the public policy of this state that…records…of public governmental bodies be open to the public unless otherwise provided by law [and]… shall be liberally construed…to promote this public policy.” Chris Koster – Former Missouri Attorney General


WGPEUIC: You said you were not filling a vague Open Records Act request

  • Perkins v. Caldwell, 363 S.W.3d 149, 2012 Mo. App. LEXIS 77 Mo. Ct. App. 2012.
    • Appellant failed to demonstrate that the city violated any provision of the Sunshine Law, as appellant had not demonstrated what request for access was denied to her.

WGPEUIC: You said you were not honoring a vague Open Records Act request

  • State ex rel. Moore v. Brewster, 116 S.W.3d 630, 2003 Mo. App. LEXIS 1182 Mo. Ct. App. 2003.
    • Testimony supported the trial court’s finding that no custodian of records, pursuant to Mo. Rev. Stat. § 610.023.1 of the Sunshine Law, had been appointed by a board of education as ordered by the trial court, and thus the award of attorney fees pursuant to Mo. Rev. Stat. § 610.027.3 in favor of board members was affirmed. Where pleadings did not allege that Board of Education failed to appoint custodian of records pursuant to Mo. Rev. Stat. § 610.023.1, the superintendent of schools testified that there was no one under his supervision with the title of custodian of records, and the Board’s attorney testified regarding whether there was a custodian of records that it would depend on which records a person was asking for, and neither the questions nor the testimony elicited was objected to, the issue of appointment of a custodian of records was tried by implied consent.

 
WGPEUIC: You have something someone else wants.

  • Cent. Platte Natural Res. Dist. v. United States Dep’t of Agriculture, 643 F.3d 1142 8th Cir., 2011
    • Appellant sought disclosure of geospatial data from the USDA under the Freedom of Information Act FOIA, 5 U.S.C. 552, and the Administrative Procedure Act APA, 5 U.S.C. 701 et seq. At issue was whether the district court properly dismissed appellant’s APA claim and granted summary judgment on its FOIA claim in favor of the USDA. The court held that the district court did not err in concluding that the USDA was not required to disclose the Geographic Information System GIS data where it properly determined that the 2008 Farm Bill was a withholding statute for purposes of FOIA exemptions.….
    • Central Platte Natural Resources District Central Platte sought disclosure of geospatial data from the United States Department of Agriculture and the Farm Service Agency collectively the USDA under the Freedom of Information Act FOIA, 5 U.S.C. § 552, and the Administrative Procedure Act APA, 5 U.S.C. § 701 et seq. The district court dismissed Central Platte’s APA claim on the ground that it already had an adequate remedy and granted summary judgment on its FOIA claim on the ground that the USDA was not required to disclose the requested geospatial data. Central Platte now appeals the district court’s rulings. We affirm.


WGPEUIC: You claimed that making a copy of the GIS data was creating a new record and you were wrong.

  • Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 849 N.Y.S.2d 489, 880 N.E.2d 10, 36 Media L. Rep. BNA 1394 2007
    • Where a commercial provider of online public land records brought an Article 78 proceeding to compel the county clerk to produce electronic real estate records pursuant to the state freedom of information statute, the court held that whether disclosure of county real estate records could be accomplished by merely retrieving information already maintained electronically by the county clerk’s office or whether complying with the request for such records would require creating a new record was a question of fact.
    • The court continued, an agency has no obligation to accommodate a freedom of information law request to compile data in a preferable commercial electronic format when the agency does not maintain the records in such a manner; if the agency does not maintain the records in a transferable electronic format, then the agency should not be required to create a new document to make its records transferable; however, a simple manipulation of the computer necessary to transfer existing records should not, if it does not involve significant time or expense, be treated as creation of a new document.

WGPEUIC: You claimed that making a copy of the GIS data was creating a new record and you were right.

  • Jones v. Jackson County Circuit Court, 162 S.W.3d 53, 2005 Mo. App. LEXIS 231 Mo. Ct. App. 2005, transfer denied by 2005 Mo. LEXIS 167 Mo. May 31, 2005.
    • Denial of the individual’s petition for mandamus or mandatory injunction was proper where, if the Sunshine Law, Mo. Sup. Ct. R. 610.010, applied, the circuit court did not violate it by denying his request to create a new, customized record. The plain language of the Sunshine Law did not require a public governmental body to create a new record upon request, but only to provide access to existing records held or maintained by the public governmental body, Mo. Sup. Ct. R. 610.023
    • Petition for mandamus and mandatory injunction alleging that a circuit court and its court administrator violated the Sunshine Law, Mo. Rev. Stat. § 610.010 et seq., was properly dismissed; the circuit court and its administrator complied with the plain language of Mo. Rev. Stat. § 610.023.2 because it made its public records containing the information appellant was seeking available for inspection and copying by the public.

WGPEUIC: You expect citizens to be OCD when making an Open Record Act request

  • Anderson v. Jacksonville, 103 S.W.3d 190, 2003 Mo. App. LEXIS 126 Mo. Ct. App. 2003.
    • Sunshine Law, Mo. Rev. Stat. § 610.023.3, did not mandate that a legal description accompany a request for access to records regarding real property.

WGPEUIC: You tell a citizen to accurately describe the record they are seeking

  • Anderson v. Jacksonville, 103 S.W.3d 190, 2003 Mo. App. LEXIS 126 Mo. Ct. App. 2003.
    • Because a petition failed to allege that village’s custodian of records had received citizen’s request for access to information, the citizen failed to state a claim for violation of Mo. Rev. Stat. § 610.023.3 under the Sunshine Laws, Mo. Rev. Stat. § 610.010 et seq. Pursuant to the elements required under the Sunshine Law, Mo. Rev. Stat. § 610.023.3, the court held that the citizen failed to raise a cause of action against the village; although, the citizen’s letter coupled with a letter from the attorney general adequately identified the records to which the citizen wanted access, and it was not necessary that a legal description be included, the citizen failed to assert in his petition that the custodian of records had received his request or, in the alternative, that the village or its attorney had thwarted or impeded the citizen’s attempted request or the attorney general’s request and, as a result, the timeframe required by the statute was never triggered.
    • While the Sunshine Law, Mo. Rev. Stat. § 610.023.3 did not compel that the recipient custodian solve a mystery to understand a request for information, the state’s policy of openness of public records and the expressed legislative intent that the statute be liberally applied required a reasonable attempt by the custodian to understand the request by considering the entire communication.

 

WGPEUIC: You assume all citizens making Open Record Act requests are terrorists

  • California First Amendment Coalition v. County of Santa Clara, No. 1-06-CV-072630. 2007.
    • Court denies claim that county GIS basemap is exempt from public records laws for homeland security reasons.
    • Director, Dept. of Information Technology of Town of Greenwich v. Freedom of Information Com’n, 274 Conn. 179, 874 A.2d 785, 33 Media L. Rep. BNA 2128 2005
    • The director of a town’s department of information technology failed to meet his burden to show that the security or integrity of the town’s information technology system would be compromised by disclosure of computerized data from the town’s …. GIS, as required to invoke the pertinent exemption under the Freedom of Information Act…where the director testified that he was concerned about the vulnerability of the town’s network to a security breach….but did not provide specific examples of security breaches or evidence that any such breaches had been caused by the disclosure of GIS data, the court, held. The court…. the public safety exemption of the FOIA applied to GIS data, the trial court was not required to balance the town’s interest in public safety with the public’s right to accessible information as the FOIA’s exemptions already incorporated the judgment of the legislature with regard to balancing the public interest in disclosure of records with the need for confidentiality.
    • Greenwich v. Whitaker, Ct Sup Ct. 2005
    • Conn Supreme Court finds that city is unable to restrict access to GIS data for public safety reasons.

WGPEUIC: Your organization tried bamboozling the plaintiff & the courts

  • Sierra Club v. Superior Court of Orange Cnty., 57 Cal.4th 157, 302 P.3d 1026, 158 Cal.Rptr.3d 639 Cal., 2013
    • …The issue in this case is whether the OC Landbase is subject to disclosure in a GIS file format at the actual cost of duplication under the California Public Records Act or whether, as the County contends, it is…covered by the statute’s exclusion of “[c]omputer software” ….—a term that “includes computer mapping systems”….—from the definition of a public record. 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.
    • …Amici curiae representing a variety of media and open-government groups explain the functionality and value of the database at issue: “Using software available on the open market and the GIS-formatted landbase that is at issue in this case, any interested person can layer other publicly available electronic datasets on top of the landbase and perform a computer-assisted analysis of those datasets in ways that are simply not possible without the base layer…. [¶] For example … a property owner can use GIS-formatted landbase data to locate other similar parcels and see whether [the owner’s] taxes are higher or lower than those being paid by others, or to determine whether zoning decisions are similar as to comparable properties, which in turn can shed light on the fairness of a government’s taxing or zoning decisions…. [P]ublic dissemination of GIS-formatted mapping data is also critical to the non-profit sector’s ability to monitor and respond to government actions involving real property. For example, Petitioner Sierra Club sought the records at issue in this action to determine—and convey to the public—the status of large areas of open space in Orange County, including whether each area is protected from development by conservation easements or public ownership or is threatened by a proposed development.”
    • Sierra Club’s request began a lengthy exchange between the two parties concerning the public record status of the OC Landbase. In March 2009, the County agreed to produce records containing the information underlying the OC Landbase, including assessment rolls, parcel maps, tract maps, survey records, lot line adjustments, and transfer deeds. The County offered to provide such records in Adobe PDF electronic format or as printed paper copies. However, the County took the position that the PRA did not require it to disclose the same records in a GIS file format and that it would provide the records in that format only if Sierra Club paid a licensing fee and agreed to the license’s restrictions on disclosure and distribution. According to the County, the licensing agreement enables the County to recoup a portion of the substantial costs it incurs to develop and maintain the OC Landbase. A [302 P.3d 1030]2009 [57 Cal.4th 163]declaration by the County’s surveyor reported that the County had spent over $3 million in the previous five years to maintain the OC Landbase. …
    • Sierra Club sought a writ of mandate from the superior court to compel the County to provide the OC Landbase in a GIS file format as a public record for a fee covering only the direct cost of duplication, with no requirement that Sierra Club comply with the licensing agreement.
    • …. The PRA and the California Constitution provide the public with a right of access to government information. As this court has explained: “Openness in government is essential to the functioning of a democracy. ‘Implicit in the democratic process is the notion that government should be accountable [302 P.3d 1031] for its actions. In order to verify accountability, individuals must have access to government files. Such access permits checks against the arbitrary exercise of official power and secrecy in the political process.’
    • …. In adopting the PRA, the Legislature declared that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”
    • “As the result of an initiative adopted by the voters in 2004, this principle is now enshrined in the state Constitution….” Local 21, at p. 329, 64 Cal.Rptr.3d 693, 165 P.3d 488. The California Constitution, article I, section 3, subdivision b1 provides: “The people have the right of access to information concerning the conduct of the people’s business, and therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”
    • The PRA applies to “public records,” defined as “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” § 6252, subd. e. In this case, the County’s offer to [57 Cal.4th 165] produce alternative records with the information underlying the OC Landbase implicitly recognizes that the information within the OC Landbase constitutes public records subject to disclosure unless otherwise exempt from the PRA. What the parties dispute is whether the OC Landbase in a GIS file format is a public record that must be disclosed in that format pursuant to the PRA.
    • A 2000 amendment to the PRA makes electronic data available in whatever format it is normally maintained by the agency.
    • However, a separate provision of the PRA, section 6254.9a, excludes “[c]omputer software” from the definition of a public record. Section 6254.9b says, “ ‘computer software’ includes computer mapping systems, computer programs, and computer graphics systems.”
    • The question before us is whether the term “computer software,” as used in section 6254.9, encompasses the OC Landbase in a GIS file format. If so, then the GIS-formatted OC Landbase is not a public record subject to disclosure; if not, then it is a public record subject to disclosure unless otherwise exempt under the PRA.
    • To the extent that the term “computer mapping system” is ambiguous, the constitutional canon requires us to interpret it in a way that maximizes the public’s access to information “ ‘unless the Legislature has expressly provided to the contrary.’
    • …Because section 6254.9b does not exclude GIS-formatted databases like the OC Landbase from the definition of a public record, such databases are subject to disclosure unless otherwise exempt from the PRA. Unlike the records at issue in County of Santa Clara v. Superior Court 2009 170 Cal.App.4th 1301, 89 Cal.Rptr.3d 374, the County here does not argue that the OC Landbase is subject to any other exemptions.
    • The fact that the County offered to produce the information underlying the database in an alternative format suggests that no such exemption applies. Similarly, the County’s general practice of producing the OC Landbase to the public, albeit pursuant to a licensing agreement, suggests that its contents do not implicate any of the confidentiality or other concerns underlying the exemptions set forth in section 6254. Because the OC Landbase is not excluded from the definition of a public record under section 6254.9b, and because the County does not [57 Cal.4th 177]argue that the database is otherwise exempt from disclosure, the County must produce the OC Landbase in response to Sierra Club’s request “in any electronic format in which it holds the information” § 6253.9a1 at a cost not to exceed the direct cost of duplication §§ 6253.9a2, 6253, subd. b.

WGPEUIC: You charged too much for GIS data

  • Op.Atty.Gen. 04-1105 October 3, 2005, 2005 WL 2464165. West’s Ann. Cal. Gov. Code § 6253.9, CA GOVT § 6253.
    • The fee that may be charged by a county for furnishing a copy of parcel boundary map data maintained in an electronic format by a county assessor is generally limited to the amount that covers the direct cost of producing the copy but may include certain other costs depending upon the particular circumstances as specified in the California Public Records Act. 9

WGPEUIC: You have knowledge or skills someone else wants to use.

  • Cotlow v. Growe, 622 N.W.2d 561 Minn., 2001
    • Cotlow, et al. is an action…challenging the constitutionality of the then-existing state legislative and congressional districts based on population changes reported in the 1990 Census….The Chief Justice has authority to appoint a special redistricting panel under Minn.Stat. §§ 2.724 and 480.16 2000….Both the Cotlow and Zachman plaintiffs urge the immediate appointment of a panel so that the existing district lines can be declared unconstitutional and the legislature thereby put on notice that new plans must be adopted. The legislature has established a Geographic Information Systems Office to maintain the data, facilities, and technical capacity to draw electoral boundaries, Minn.Stat. § 3.305, subd. 5 2000, and has been making preparations for redistricting that would be required by the 2000 Census for more than a year.
    • See Minnesota Geographic Information Systems Office, Minnesota Redistricting Timetable, at http://www.commissions.leg.state.mn/gis/html/redtime.htm

WGPEUIC: Somebody wants to ensure your organization is doing its job.

  • Ctr. for Biological Diversity v. U.S. Dept. of Agriculture, 626 F.3d 1113 9th Cir., 2010 626 F.3d 1113
    • The United States Department of Agriculture USDA appeals the district court’s grant of summary judgment in favor of the Center for Biological Diversity, which required the USDA, under the Freedom of Information Act FOIA, to disclose the GPS coordinates of wolf depredations to which it had responded.….The Center for Biological Diversity and other conservation groups collectively, the Center are concerned about the reduced number of Mexican wolves remaining in the wild and believe that WS removals limit the growth of the species…..the Center submitted a FOIA request …for the specific GPS coordinates where wolf depredations had occurred in order to evaluate the WS program. GPS coordinates are collected by WS staff members while on rancher property investigating depredations.
    • First, there is no dispute in this case that the GPS coordinates are “geospatial information.” Second, the GPS data concerns “agricultural operations,” a term that includes livestock production under 7 U.S.C. § 8791 b1….
    • The Center argues that the legislative history of Section 8791 indicates that it was intended to apply only to proprietary information and only to private land.

WGPEUIC: You want your customers to sign a contract before getting your data.

  • Microdecisions Inc. v. Skinner, 889 So.2d 871 Fla. App., 2004
    • The issue before us is whether a county property appraiser may require prospective commercial users of the records created in his office to first enter into a licensing agreement. We conclude that he may not….
    • Microdecisions compiles data…then sells this product on its website…. Microdecisions sought copies of Geographic Information Systems GIS maps…No one disputes that the GIS maps are public records, but Skinner claimed they were copyrighted under federal law. He refused to permit Microdecisions’ unfettered use of the maps unless it agreed to a licensing agreement that required a royalty payment if the maps were used commercially. We review a summary judgment de novo.
    • In Florida, a citizen’s right of access to public records is protected both by the Florida Constitution and the Florida statutes…the fact that a person seeking access to public records wishes to use them in a commercial enterprise does not alter his or her rights under Florida’s public records law. Since 1905, it has been clear that public records may be used in a commercial, profit-making business without the payment of additional fees…. Florida’s attorney general has opined that GIS maps “do not appear to constitute `data processing software’….and thus are not subject to the copyright and licensing authorization contained in that statute.” Op. Att’y Gen. Fla. 03-42 2003.

 

WGPEUIC: You don’t understand what is copyrightable

  • Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252 4th Cir. 2007 298, 307, 316, 322
    • Manufacturer of luxury handbags sued maker of plush dog chew toys, alleging, inter alia, trademark infringement, trademark dilution, and copyright infringement.
    • ⦿ COA AFFIRMED HELD: 1 “Chewy Vuiton” dog chew toy was successful parody of manufacturer’s luxury handbags and “LOUIS VUITTON” marks and trade dress used in marketing and selling those handbags; 2 toy maker’s marketing, sale, and distribution of alleged infringing toy was not likely to cause confusion required to establish trademark infringement; 3 association between manufacturer’s marks and toy maker’s marks was not likely to impair distinctiveness of manufacturer’s marks, as required to establish trademark dilution by blurring; 4 manufacturer failed to establish trademark dilution by tarnishment; 5 toy maker was not liable for counterfeiting under Lanham Act; and 6 toy maker’s use as a parody of certain altered elements of manufacturer’s copyrighted multicolor design did not support claim for copyright infringement.
    • A claim to the exclusive property in a peculiar system of bookkeeping cannot, under the law of copyright, be maintained by the author of a treatise in which that system is exhibited and explained.
    • The copyright of a book on bookkeeping cannot secure the exclusive right to make, sell and use account-books prepared upon the plan set forth in such book.
    • The copyright of a work on mathematical science cannot give to the author an exclusive right to the methods of operation which he propounds or to the diagrams which he employs to explain them, so as to prevent an engineer from using them whenever occasion requires.
    • Where the truths of a science or the methods of an art are the common property of the whole world, any author may express the one or explain and use the other, in his own way.
    • Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 1903 707, 720, 724, 1111
      • ⦿ SCOTUS REVERSED and remanded, with directions to set aside the verdict and grant a new trial. HELD: Chromolithographic advertisements of a circus, portraying a ballet, a number of persons performing on bicycles, and groups of men and women whitened to represent statues, are proper subjects of copyright, under Rev.St.U.S. § 4952, as amended by Act 1874, § 3, 18 Stat. 78, 79, c. 301, 17 U.S.C.A. § 63, as “pictorial illustrations,” even assuming that only such illustrations as are “connected with the fine arts” are within the protection of such laws.
    • C.B.C. Distrib. and Mktg. Inc. v. MLB Adv’d Media. L.P., 505 F.3d 818 8th Cir.2007 157
      • Producer of fantasy major league baseball games sought declaratory judgment that it had right to make unlicensed use of names and statistics of players in its games. Licensee of those rights counterclaimed, alleging violation of players’ rights of publicity, to which it had obtained a license, and players’ association intervened, asserting claim for breach of contract. On cross-motions for SJ, the USDC for the ED of Missouri granted SJ for producer, and licensee and players’ association appealed.
      • ⦿ COA AFFIRMED. HELD:
        • 1 producer used players’ names as symbols for their identity;
        • 2 producer used players’ names for purposes of profit; but
        • 3 1st Amendment right of producer to use players’ names and statistical information took precedence over players’ rights, under Missouri law, to be protected from unauthorized publicity; and
        • 4 players’ association could not enforce no-use and no-challenge provisions of contract authorizing use of player information in games.
    • Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 1991 711, 720, 721, 723, 724, 725, 901
      • Telephone utility brought copyright infringement action against a publisher of an area-wide telephone directory for publisher’s use of listings in utility’s local white pages.
      • ⦿USDC AFFIRMED for the District of Kansas HELD that the white pages were copyrightable, and the publisher appealed.
      • ⦿ COA REVERSED.
      • ⦿ SCOTUS HELD: 1 names, towns and telephone numbers of utility’s subscribers were uncopyrightable facts, and 2 these bits of information were not selected, coordinated, or arranged in an original way in white pages that utility was required to publish under state law, and hence white pages did not meet Constitutional or statutory requirements for copyright protection.

WGPEUIC: You claim your data is copyrighted and prohibit its commercial use

  • Seago v. Horry County, 663 S.E.2d 38, 378 S.C. 414 S.C., 2008
    • This case concerns whether further dissemination of public documents obtained pursuant to a…[FOIA] request may be restricted where the government entity claims the information is copyright-protected under the federal copyright law….
    • On December 5, 2001, Seago made a FOIA request for a copy of the “Orthophoto Coverage in Mr. Sid format Countywide” so he could place the digital photographic map on his website for use by his customers. In January 2002…Horry County, informed Seago…he would have to sign a licensing agreement acknowledging Horry County’s copyright on the information and restricting any further commercial use without prior written consent. Seago…refused to sign the licensing agreement. Seago did not obtain the requested information.
    • CONCLUSION: Horry County is not prohibited from obtaining copyrights on the County’s GIS data which was specially-created; Horry County could use its copyright to protect the GIS data from subsequent commercial use without violating FOIA. [however], it may not refuse to honor the initial FOIA request.
    • We note there is a similar case from Florida in which the…. court…. held exactly the opposite. Microdecisions, Inc., v. Skinner …Unlike the case in Microdecisions, while our Legislature and state constitution do not specifically allow counties to copyright, they do not specifically prohibit it, either.
      • County of Suffolk v. First American Real Estate Solutions, 2nd Cir. 2001
        • Issue was whether county can enforce copyright in tax maps.
      • Darden v. Peters, 488 F.3d 277 4th Cir. 2007
        • Upheld Copyright Office’s rejection of copyright on maps and compilations on website appraisers.com.
      • Microdecisions, Inc. v. Abe Skinner, 889 So. 2d 871 M.D. FL, 2004
        • Issue was whether county property appraiser may require prospective commercial users of the records created in his office to first enter into a licensing agreement.
      • Images Audio Visual v. Perini Building, 91 F.Supp. 2d 1075 E.D. Mich.2000
        • Holder of copyright on aerial photographs showing construction site progress sued contractor that had ordered photographs, alleging that contractor violated copyrights by having duplicates photocopied and distributed to participants in arbitration dispute, rather than ordering extra copies from photographer.

 

  • A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004 9th Cir. 2001
    • Record companies and music publishers brought copyright infringement action against Napster, an Internet service that facilitated the transmission and retention of digital audio files by its users.
    • ⦿ USDC for the ND of CA ruled on admissibility of experts’ reports, granted preliminary injunction in favor of plaintiff
    • ⦿ COA AFFIRMED in part, REVERSED in part, and remanded. HELD:
      • 1 plaintiff established prima facie case of direct copyright infringement;
      • 2 users’ activities did not amount to fair use of the copyrighted works;
      • 3 plaintiff demonstrated likelihood of success on merits of contributory infringement claim;
      • 4 plaintiff demonstrated likelihood of success on merits of vicarious infringement claim;
      • 5 Audio Home Recording Act was inapplicable;
      • 6 plaintiff raised sufficiently serious Q.s, and established that balance of hardships tipped in its favor, as to service’s claim that it was entitled to “safe harbor” under the Digital Millennium Copyright Act;

WGPEUIC: You trusted the federal government

WGPEUIC: You are suing the clown that hacked into your data

  • Paradigm Alliance, Inc. v. Celeritas Technologies, LLC, 659 F.Supp. 2d 1167
    • Genuine issues of material fact as to whether information technology IT service provider attempted to access geographic information systems GIS producer’s non-public online product without authorization, and whether GIS producer sustained as damages as result precluded summary judgment on GIS producer’s claim against IT provider for violation of Computer Fraud and Abuse Act CFAA

WGPEUIC: You are suing someone who misused your records.

  • Reichert v. The Board of Education of the City of St. Louis, 217 S.W.3d 301, 305 Mo. banc 2007
    • States may expressly prohibit commercial use of voter registration, vital and/or certain health records; charge Fees to satisfy commercial requests for unrestricted records; ban different handling of otherwise disclosable public records based on the character of its intended use.

WGPEUIC: You are suing someone who misused your survey

  • Sparaco v. Lawler, 303 F.3d 460 2nd Cir 2002
    • and surveyor sued defendants alleging that defendants copied his site plan in violation of copyright law in creating a site plan for use in the construction in the facility.

 

WGPEUIC: The Worst-Case Scenario: You messed up and somebody sues

  • Hooper v. Darien Planning and Zoning Commission, No. CV 03 0196436 S CT 12/30/2005 CT, 2005
    • The Plaintiff, Nancy C. Hooper, resides at and owns property known as 51 Old Farm Road, Darien, Connecticut…. Hooper made an application to the Commission for Land Filling Application #92A pursuant to Section 850 of the Darien Zoning Regulations to allow construction of a swimming pool in the R-1/2 Zone portion of her property.
    • In February 2003, the Darien Zoning Board of Appeals…denied the plaintiff’s application for a variance as to the location on her property for the proposed swimming pool. ….it came to the attention of the parties that the Geographic Information Systems “GIS” Zoning Map, adopted by the Town in 1999 to upgrade the Town Zoning Map to a computer-generated map, contained an error in the location of a zone line that runs through the plaintiff’s property….
    • The 1999 GIS Zoning Map inadvertently moved that zone line too far east, so that it depicted almost all of the plaintiff’s property as lying in the R-1 Zone. The error impacted several other properties along Old Farm Road and Five Mile River Road.
    • In this case the map error is discussed 26 times in excruciating detail.
    • http://www.entrepreneur.com/article/272953