March 10, 2000; St. Louis County
3/10/2000 10:14:43 AM
This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.
Facts and Procedural History:For purposes of simplification, the information presented by the person who requested this opinion and the response from the government entity with which the person disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of IPA and, except for any data classified as not public, are available for public access. On January 11, 2000, IPA received a letter dated January 6, 2000, from Mark Weir. In his letter, Mr. Weir asked the Commissioner to issue an advisory opinion regarding Mr. Weir's access to certain data that St. Louis County maintains. IPA, on behalf of the Commissioner, wrote to Julie Brunner, Administrator of St. Louis County. This January 13, 2000, letter served to inform her of Mr. Weir's request and to ask her to provide information or support for the County's position. On January 25, 2000, IPA received a response, dated same, from Lindsay Jones, Assistant St. Louis County Attorney. A summary of the facts is as follows. Mr. Weir wrote: St. Louis County offers a Subscriber Agreement...which allows access through the Internet to certain real property and property tax data bases. The Agreement does not allow one to copy, download, store, publish, etc. the data. Rather, the Agreement allows access to the records, through the Internet system, merely for the purpose of inspection. The County charges the subscriber $600.00 for a six (6) month term for access to these records. Access is obtainable only during regular business hours. In his response to the Commissioner, Mr. Jones wrote that the County's management of electronically stored information is currently developed and organized to provide limited and regulated access via electronic data retrieval to certain County databases. He stated that access via electronic data retrieval falls into two categories - Internet/web page technology based retrieval, and County Auditor and County Recorder data retrieval. Of the Internet/web page technology, he wrote: The general public has free and unlimited access to the County's public web page on the Internet. This web page has general information on the various departments and their directories. Technically, this access is achieved through a direct electronic pathway from the public user's personal computer to the County's web page via the Internet. Public users may print data displayed on the County's web page. There is currently no data maintained on or linked to the web page which would require a public user to use a download procedure. The public user is sealed off by the County's system firewall from accessing the County's mainframe and minicomputer servers (ES 9000 and AS 400), where critical intra and inter-departmental applications are maintained. Of the County Auditor and County Recorder data retrieval, Mr. Jones wrote: A limited and regulated access is available for viewing electronic data maintained by the County Auditor's Office and the County Recorder's Office on the County's mainframe and minicomupter servers (ES 9000 and AS 400). This access is further organized into two distinct categories, remote and onsite. In describing the remote access, Mr. Jones stated: The current remote access is only partially Internet based, to the extent that the user, through a subscribed access code, passes through the County's system firewall via the Internet to interface with the County's web connector. After this access, the user is operating within the County's system firewall and not on the Internet. Upon accessing the web connector the subscriber must provide a password and one of two access codes, which directs the user to either the ES 9000 or the AS 400...Upon accessing one of these servers, the user must provide another confirmation password. Once authorization is confirmed, the web connector serves as a terminal emulator to allow the user to view on his or her own computer terminal, data in the form of green screens from the County Recorder and County Auditor databases stored on the ES 9000 and the AD 400, respectively. The data retrieval manipulation is complicated by the emulation application, which requires the user to have knowledge of special command terms, and limits searches to specific canned queries within specific fields. None of these data retrieval procedures, beyond accessing the web connector, are based on Internet technology. Issue:In his request for an opinion, Mr. Weir asked the Commissioner to address the following issue:
Discussion:Minnesota Statutes, section 13.03, subdivision 3, provides that an individual has the right to request and gain access (inspection and copies) to public government data. Also pursuant to subdivision 3, government entities must provide inspection of government data free of charge. Clause (b) of subdivision 3 further clarifies inspection. It states, in relevant part: In the case of data stored in electronic form and made available in electronic form on a remote access basis to the public by the government entity, inspection includes remote access to the data by the public and the ability to print copies of or download the data on the public's own computer equipment. Nothing in this section prohibits a government entity from charging a reasonable fee for remote access to data under a specific statutory grant of authority. A government entity may charge a fee for remote access to data where either the data or the access is enhanced at the request of the person seeking access. In his response to the Commissioner, Mr. Jones described the ways in which individuals may gain access to the data at issue in this opinion. He wrote: Remote access, via electronic data retrieval, is made available only in limited fashion to private real estate industry users as a prototype technology initiative.... Onsite access, via electronic data retrieval, is made available for free to the general public at certain County locations on designated public user terminals.... In either instance, remote or onsite, the available access, via electronic data retrieval through terminal emulation, does not allow for downloading or printing from the accessible databases. Simply, the software applications and technologies currently in place, do not have the systems capacity to provide remote access to the general public or the ability to download or print data stored in electronic form. In summation, Mr. Jones wrote: As noted above, the general public has free access to inspect public data in these offices during regular business hours, either through visual inspection of paper documents or by viewing the data on public emulation terminals. Mr. Weir, a private attorney, sought to enhance his personal private business access through means of remote access, a type of access which St. Louis County has not yet made available to the general public for lack of technological capacity. Mr. Weir contracted with St. Louis County for this enhanced access at a subscriber rate of $100 per month ($50.00 per each database), as opposed to utilizing the available options for free onsite access. As discussed above, section 13.03, subdivision 3 (b), provides that government entities may charge a fee for remote access to data where either the data or the access is enhanced at the request of the person seeking access. When the Legislature enacted this provision during the 1999 Legislative Session, while it provided that inspection of government data, via remote access, is free of charge, it also clarified that a government entity could charge a fee for remote access in situations where the entity has enhanced the data or the access. However, it is clear from this provision that something more than mere remote access to records, during business hours, must be provided before a government entity can charge a fee for the access. Either the data retrievable or the access itself must be enhanced. The Commissioner is not prepared at this time to determine with certainty what will be an enhanced feature in all cases. However, in this case it is clear that there is no enhancement to the data or access whatsoever. The subscriber merely has the ability to gain remote access to the green screens, during business hours, in the form in which they are maintained by the County for general purposes. The subscriber is not permitted any additional opportunities to copy, download or otherwise manipulate the data. Under these circumstances, the Commissioner must conclude that provisions of section 13.03, subdivision 3 (b), have not been met in this case and that the fee is not authorized under law. In his opinion request, Mr. Weir also asked the Commissioner to discuss the Subscriber Agreement, which Mr. Jones did not address in his response. The Agreement is problematic for the following reasons. First, it states that the County may charge a reasonable fee for providing access to data bases having a commercial value. There is no provision in Chapter 13 that permits such a charge. Section 13.03, subdivision 3 (d), provides that an entity may charge a reasonable fee if a person requests copies of public data that have commercial value and is a substantial and discrete portion of or an entire formula, pattern, compilation, program, device, method, technique, process, database, or system developed with a significant expenditure of public funds. The County is not providing Mr. Weir with copies; therefore, a charge based on commercial value is not allowable. The Commissioner is also troubled by the licensing language in the Subscriber Agreement. It states: Neither the data nor any portion thereof may be copied, downloaded, stored, published, transmitted, transferred, sold or otherwise used, in any forms or means, except (1) as expressly permitted herein; (2) with the County's prior written permission; or (3) if not otherwise expressly prohibited by this Agreement, as allowed by the Fair Use Provision of the United States Copyright Act, 17 U.S.C. section 107, and the Minnesota Data Practices Act, Minn. Stat. Ch. 13. The issues arising from situations in which government entities claim copyrights, or enter into agreements with private entities that grant intellectual property rights in government data to the private parties, are nascent. The Minnesota Attorney General issued an opinion on December 4, 1995, that addressed a situation in which a government entity wanted to exercise intellectual property rights in some of the data it maintained. That opinion reads, in part: [Government entities] may not assert copyright ownership to deny members of the public their right to inspect and copy public government data at reasonable times and places under [Minnesota Statutes Section 13.03, subdivision 3.] [Emphasis added.] Based on this opinion, the County can control use but not access. Gaining access to data includes both inspecting data and obtaining copies of data. In this case, it appears the County is restricting Mr. Weir's right to make copies of the data, whether the data is obtained remotely or onsite. This is in violation of his rights under Chapter 13. Opinion:Based on the facts and information provided, my opinion on the issue raised by Mr. Weir is as follows:
Signed:
David F. Fisher
Dated: March 10, 2000 |
Electronic data
Inspection
Copyright
Enhanced data
Remote access
Subscription fees
Electronic data, email
Intellectual property (See also: Proprietary information)
Remote access
