GeoData Policy

The Wisconsin State Cartographer’s Office just published ” WIREdata and its implications for WI geospatial data”. For the full text of the article visit the Wisconsin State Cartographer’s Website:  http://www.sco.wisc.edu/pubs/WIREdata_and_its_implications_for_WI_geospatial_data_2009.pdf

Prior GeoData Policy blog postings on WIREdata: http://geodatapolicy.wordpress.com/2008/06/26/wi-supreme-court-decision-on-wiredata/?preview=true&preview_id=62&preview_nonce=5452d22b1c

A synopsis of the WIREdata article can be found below:

In Brief: “WIREdata and its implications for WI geospatial data” by Lea Shanley, Wisconsin State Cartographer’s Office

On June 25, 2008, the Wisconsin Supreme Court issued an opinion in WIREdata Inc. v. Village of Sussex (2008 WI 69), after nearly seven years of litigation between WIREdata, Inc. and the villages of Sussex and Thiensville, and the city of Port Washington. This litigation touches on Wisconsin state open records law and its application to electronic databases. Specifically, the Court considered the scope, timing, and procedure for making open records requests, as well as the cost and format of the electronic records requested and the authorities responsible for responding to these requests. This article summarizes the WIREdata case, and highlights the potential impact of this decision on access to electronic land information systems (LIS) and geographic information system (GIS) datasets in Wisconsin.

In its published opinion, the Wisconsin Supreme Court acknowledged, but did not revisit the U.S. Court of Appeals for the Seventh Circuit’s opinion, which held that federal copyright law did not prevent open records law access to public agencies’ property assessment data. The Seventh Circuit’s ruling underscores the idea that copyright in electronic databases, such as LIS/GIS datasets, resides in the small amount of originality required for the “selection, coordination, or arrangement” of the data, and not in the factual data themselves (Onsrud, 2004). Notably, in a subsequent case, the Seventh Circuit also ordered one of the plaintiffs – Assessment Technologies – to pay WIREdata more than $91,000 in attorney’s fees for pursuing a copyright infringement suit with little merit.

The Supreme Court instead focused its attention on Wisconsin open records law issues. First, the Court held that a public agency – not its independent contractor vendor – is the statutorily defined “authority” responsible for responding to open records requests.  Second, the Court held that a public agency may not evade its responsibilities under open records law by hiring private vendors to create and maintain their property assessment records and then by re-directing requests for agency records to those vendors who maintain them. This is a very important holding given that many agencies in Wisconsin and throughout the country are similarly delegating these functions to private vendors.  The WIREdata decision does not prohibit this practice; but, under this ruling, public agencies will need to make appropriate arrangements with their vendors for the provision of records necessary to respond to open records requests.

Third, the Court stated that while a public agency may recoup its “actual, necessary and direct costs of reproduction,” it cannot generate revenue through open records requests. Furthermore, as stated in the WI Department of Justice’s 2008 Public Records Law Compliance Outline, “[a]n offer of compliance, but conditioned on unauthorized costs and terms, constitutes a denial” of an open records request. WIREdata, Inc. v. Vill. of Sussex 2007 WI App 22, ¶ 57, 298 Wis. 2d 743, ¶ 57, 729 N.W.2d 757, ¶ 57. In light of the WIREdata decision, public agencies may wish to consult with their attorneys in order to determine whether their geospatial database constitutes a “record,” as defined by Wis. Stat. §19.32 (2), that is subject to open records requests.[1]

Fourth, the Court ruled that the municipalities had satisfied WIREdata’s initial open records requests by providing electronic portable document files (PDFs) of the property assessment data. This holding, however, was based on the wording of WIREdata’s initial request for an “electronic/digital copy,” which was broad enough to encompass the PDF format; it did not address whether providing a PDF would satisfy a more specific request, such as for “enhanced” comma delimited copy of data, or for a copy of a searchable database, such as a GIS data set.

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[1] “ “Record” means any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved, regardless of physical form or characteristics, which has been created or is being kept by an authority. “Record” includes, but is not limited to, handwritten, typed or printed pages, maps, charts, photographs, films, recordings, tapes (including computer tapes), computer printouts and optical disks. “Record” does not include drafts, notes, preliminary computations and like materials prepared for the originators personal use or prepared by the originator in the name of a person for whom the originator is working; materials which are purely the personal property of the custodian and have no relation to his or her office; materials to which access is limited by copyright, patent or bequest; and published materials in the possession of an authority other than a public library which are available for sale, or which are available for inspection at a public library (Wis. Stat. §19.32 (2) ).”

This litigation concerns the state’s open records law and its application to requests for access to large data bases created by private contractors on behalf of municipalities. The Supreme Court has been asked to consider a number of issues about the scope, timing, procedure, cost and format of electronic records involved in open records requests.

For links to court documents and oral arguments, visit:

http://www.wicourts.gov/about/resources/casemonth/archive.htm

http://www.wicourts.gov/about/resources/casemonth/docs/wiredata.pdf 

Summary of court cases preceding WI Supreme Court Case:

http://www.wicourts.gov/about/resources/casemonth/docs/march08.pdf 

2003 Seventh Circuit Court of Appeals Decision

Assessment Tech v. WIREdata, 350 F.3d 640 (7^th Circuit Court of Appeals). The plaintiff, Assessment Technologies, developed a software program that enabled county assessors to store and analyze property tax assessment information electronically in an AT formatted database. The defendant, WIREdata, acquires assessment data and repackages it in a form that is useful to the real estate community. Some assessors, however, felt that providing copies of their AT databases would be a violation of the license agreement. AT sued WIREdata for copyright infringement and theft of trade secrets. The trial court entered a permanent injunction against WIREdata on the copyright infringement claim, but did not reach the trade secret claim.  

The trial court’s decision was reversed on appeal. In his written opinion, Judge Posner stated,  

“In reversing the judgment for the plaintiff in this suit for copyright infringement, we described it as a case “about the attempt of a copyright owner to use copyright law to block access to data that not only are neither copyrightable nor copyrighted, but were not created or obtained by the copyright owner; the owner is trying to secrete the data in its copyrighted program—a program the existence of which reduced the likelihood that the data would be retained in a form in which they would have been readily accessible.” 350 F.3d 640, 641-42 (7th Cir. 2003). We added: “It would be appalling if such an attempt could succeed.” Id. at 642. And it did not succeed.”

Following this decision, all parties filed motions for summary judgment.

For oral arguments and court documents, visit: http://www.ca7.uscourts.gov/fdocs/docs.fwx?caseno=03-2061&submit=showdkt&yr=03&num=2061.PD

Commentary from the attorney blogosphere: 

7th Cirtuit Rules that Extraction of Public Domain Data from Copyright Protected Databases is Not a Copyright Infringement (Laura Gellman, Stanford Law School, December 2003): http://cyberlaw.stanford.edu/packets001809.shtml

Speaking of Great Court of Appeals Decisions (Laurence Lessig, December 2003)

http://lessig.org/blog/2003/12/speaking_of_great_court_of_app.html 

Fair Use and Misuse (Laurence Lessig, April 2004)

http://lessig.org/blog/2004/08/fair_use_and_misuse.html

Justly Irascible (Susan Crawford, December 2003)

http://scrawford.blogware.com/blog/_archives/2003/12/1 

A Moment of Sanity (Joe Gratz, November 2003)

http://www.joegratz.net/archives/2003/11/27/a-moment-of-sanity/

Judge Posner: Misuse Remedies for Copyright’s Chill (Wendy Seltzer, EPIC, August 2004)

http://www.eff.org/deeplinks/2004/08/judge-posner-misuse-remedies-copyrights-chill 

2007 Wisconsin Court of Appeals Decision

The summary judgment of the trial court was reviewed de novo by the Court of Appeals of Wisconsin: WIREdata, Inc v. Village of Sussex and Grota Appraisals (2007 WI APP 22, Appeals No. 2005AP1473, 2006AP174, 2006AP175). The parties each raised several issues for the Court’s review:

“(1) whether both the municipalities and their independent contractor assessors are the responsible statutory authorities under the open records law; (2) whether WIREdata’s requests contained reasonable limitations as to the subject matter and length of time of the sought-after records; (3) whether the municipalities denied WIREdata’s open records requests; (4) whether the municipalities complied with the open records law by providing the PDF to WIREdata; and (5) whether the imposition of costs and attorney’s fees on Michael Grota, Grota Appraisals and Assessment Technologies was appropriate.” 

Commentary by the attorney blogsphere: 

Municipalities Violated Open Records Law by Providing PDF of Property Assessment Records and Not Allowing Access to Database (K&L Gates, January 2007)

http://www.ediscoverylaw.com/2007/01/articles/case-summaries/municipalities-violated-open-records-law-by-providing-pdf-of-property-assessment-records-and-not-allowing-access-to-database/

General commentary from real estate industry and the press:

http://www.inman.com/blog/2007/01/5/mls-company-sues-make

http://www.rcfp.org/newsitems/index.php?i=4634

http://www.rcfp.org/privatization/records.html  

2008 Wisconsin Supreme Court Decision

The Appellate Court decision was affirmed in part, and reversed in part by the Supreme Court of Wisconsin (WIREdata, Inc. v. Village of Sussex, 2008 WI 69; 2005AP1473, 2006AP174, and 2006AP175). The court stated:

“We reverse in part and affirm in part the decision of the court of appeals. WIREdata, Inc. v. Village of Sussex, 2007 WI App 22, ¶¶2, 3, 67-70, 298 Wis. 2d 743, 729 N.W.2d 757. In order to assist the reader in understanding our determinations, in relation to that decision, we disagree with the court of appeals’ specific holdings as follows: that the three municipalities denied the open records requests of WIREdata and, thus, violated the open records law; that the PDFs were insufficient to comply with such open records requests; that the open records law requires access to the computerized database; that the “enhanced” demands did not require the creation of new records; and that WIREdata is entitled to fees and costs from each of the municipalities. However, we agree with the court of appeals’ specific holdings as follows: that the municipalities are the responsible authorities under the open records law; that such responsibility cannot be shifted to independent contractor assessors; and that the initial written requests of WIREdata were valid and, thus, were not insufficient as to subject matter and length of time.”

Case Digest (Wisconsin Law Journal, June 25, 2008)

http://www.wislawjournal.com/article.cfm/2008/06/30/2005AP1473-2006AP174–2006AP175-WIREdata-Inc-v-Village-of-Sussex

“A municipality may not avoid liability under the open records law by contracting with an independent contractor assessor for the collection, maintenance, and custody of its property assessment records and by then directing any requester of those records to the independent contractor assessor who has custody of the sought-after records.”

For links to court documents and oral arguments, visit:

http://www.wicourts.gov/about/resources/casemonth/archive.htm

http://www.wicourts.gov/about/resources/casemonth/docs/wiredata.pdf 

Full text of the opinion can be found at:

http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=33183

Oral arguments can be found at:

http://www.wicourts.gov/supreme/scoa.jsp?docket_number=2005AP001473&begin_date=&end_date=&party_name=&sortBy=date

News Stories:

AP News Stories, June 25, 2008:

http://www.examiner.com/a-1458097~Court__Towns_satisfied_Wisconsin_open_records_law.html 

http://www.examiner.com/a-1458993~Court__City__villages_satisfied_open_records_law.html

Jim Stevens, Living Lake Country, July 2, 2008: http://www.livinglakecountry.com/story/index.aspx?id=767941

Mike Johnson, Milwaukee Journal Sentinel Online, June 26, 2008: http://www.jsonline.com/story/index.aspx?id=766307

Amicus Briefs

Find the amicus briefs starting page 994 of the PDF document file.

http://www.wicourts.gov/about/resources/casemonth/archive.htm

http://www.wicourts.gov/about/resources/casemonth/docs/wiredata.pdf

An amicus curiae brief was filed by Andrew T. Phillips, Kristen D. DeCato, and Stadler, Centofanti & Phillips, S.C., Mequon, on behalf of the Wisconsin Counties Association.

An amicus curiae brief was filed by Daniel M. Olson, Madison, on behalf of the League of Wisconsin Municipalities.

An amicus curiae brief was filed by Joseph P. Guidote, Jr., Outagamie county corporation counsel, on behalf of the Wisconsin Association of County Corporation Counsel.

An amicus curiae brief was filed by David A. Strifling and Quarles & Brady LLP, Milwaukee; E. King Poor and Quarles & Brady LLP, Chicago, Ill.; and Michael R. Klipper, Christopher A. Mohr, David Ludwig, and Meyer, Klipper & Mohr, PLLC, Washington, D.C., on behalf of First American CoreLogic, Inc., LexisNexis, the Real Estate Information Professionals Association, and the Software and Information Industry Association.

An amicus curiae brief was filed by Mary E. Burke, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general, on behalf of the Wisconsin Department of Justice.

An amicus curiae brief was filed by Paul W. Schwarzenbart and Lee, Kilkelly, Paulson & Younger, S.C., Madison, on behalf of Wisconsin Land Title Association, Inc.

An amicus curiae brief was filed by Robert J. Dreps, Rebecca Kathryn Mason, and Godfrey & Kahn, S.C., Madison, on behalf of the Wisconsin REALTORS® Association, Wisconsin Freedom of Information Council, Wisconsin Broadcasters Association and Wisconsin Newspaper Association.

The Wisconsin Supreme Court rules on the WireData Court Case.

From the ruling:

1. WireData did not properly commence the mandamus actions against the municipalities under the state open records law, because WireData’s requests were not denied.

2. WireDatas initial requests were not insufficient as a matter of law as to time and subject matter.

3. A municipalities’ independent contractor assessor is not an authority under open records therefore not a proper recipient of an open records request.

4. A municipality may not avoid liability under open records by contracting with an independent contractor assessor who has custody of the sought after records.

5. The court of appeals was wrong in ruling that supplying data in a pdf format was insufficient

6. Because no actual fees were charged for the information the municipalities provide WireData in the pdf format, the municipalities did not violate the open records law. Hence, they are not liable for damages.

Link to the ruling:

http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=33183

Link to the prior Court of Appeals Decision:

http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=27629

Court: Towns satisfied Wisconsin open records law

 

By SCOTT BAUER

Associated Press

 

Article Last Updated: 06/25/2008 10:33:50 AM CDT

 

MADISON — Three municipalities did not break the state’s open records law when they refused to give a real estate listing service access to a computer database, the Wisconsin Supreme Court said today.

 

The decision is expected to have a wide-reaching impact on open records requests for computer databases. It overturns an appeals court decision that said government agencies must provide access to their databases when asked.

 

The Supreme Court said today that doing that would pose substantial risks.

 

WIREdata Corp. asked the city of Port Washington and the villages of Thiensville and Sussex in 2001 for access to their property assessment records in the same database format the information was kept by private contractors who collected the information.

 

 

For full text of the article, visit:

http://www.twincities.com/news/ci_9690214?source=rss

 

Source: Associated Press, as posted on TwinCities.com

For more information, visit the following post:

http://geodatapolicy.wordpress.com/2008/06/26/wi-supreme-court-decision-on-wiredata/