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The five questions and answers in this letter raise many relevant points about GIS data and the Public Records Law.
"Pursuant to 950 C.M.R. 39.07, I am in receipt of your request for an advisory opinion. Specifically, you ask a number of questions regarding the obligations of the City of Newton (City) under the Public Records Law relative to data maintained in a Geographic Information System (GIS). Please accept my apology for the delay in responding to your request. Your questions will be addressed in turn.
Your first questions focuses on whether a custodian of public records must provide access to records on disk when that medium is specified by a requester. The definition of "public records" is very broad and includes all documentary materials made or received by a public employee, regardless of form or characteristics. G. L. c. 4, 5, 7 (26) (1994 ed.) Where a custodian of public records has the ability to provide public records in the requested format, he must do so.
You explain in your letter that in its native format, the GIS software contains graphic and non-graphic information in separate files, with pointers which establish the links between the files. Copies of GIS information in native format can be made on magnetic tape, and would be useful only to someone with a specific kind of computer capability. It is my understanding that in order to use such copies, a requester would need specific software and significant available memory.
You further explain that, by typing one command, the GIS software can be operated to create an export format. The export format is a single file, containing both graphic and non-graphic data. You state that, in this format, files can be copied to a magnetic tape or disk which can be used by other computers with various software.
A record custodian has no obligation to create a new record or to rearrange an existing record in order to comply with a public records request. See G. L. c. 4, 5, 7 (26) (1994 ed.) defining "public records" as these non-exempt materials made or received by any public employee). This principle is equally applicable to electronic records. However, where a custodian is able to provide records in a requested format without creating a new program, he must do so. Consequently, it is my opinion that, where a requester asks for GIS data in the export format, the data must be provided in that format. It should be noted, however, that where a requester is looking for data not included in the export program, and where complying with the request would require programming such as a merger of databases, the City is not obligated under the Public Records Law to perform such programming.
Government’s ability to collect, compile, maintain and disseminate public information is growing exponentially because of the computer and development of complex information systems such as GIS. The temptation for public officials to increase revenue by sale of valuable information, such as that contained in a GIS database, is understandable. However, the premise behind the Public Records Law, and other open government laws on the federal and state level, is that the public has an absolute right to access public information held by the government. The public should not be required to pay a premium for access to information which it has already paid to create and maintain through taxes.
I recognize that, through the Public Records Law, a commercial enterprise can obtain GIS data at a nominal cost and can then sell that information at a considerable markup. However, that fact does not justify assessing a fee for those records in excess of those permitted under the Public Records Law.
The Public Records Access Regulations (Regulations) allow a record custodian to assess a fee for a search of electronic records based on the actual cost in using the computer. 950 C. M. R. 32.06 (1) (e). It has consistently been the position of this office that the only such "actual costs" which may be recovered are the cost of the energy consumed during use, the materials used, and the prorated salary of the computer operator. There is no basis in the Public Records Law or Regulations for recovering the cost of depreciation or purchasing equipment. Nor is there any provision for recovering the cost of developing a database. These costs are incurred by a custodian in the daily operations of the office, and are not the direct result of complying with a request for public records.
It should be noted that City officials may under certain circumstances provide GIS data at a cost higher than that permitted under the Regulations. One example is to sell subscriptions to the GIS database. The Public Records Law, and hence the Regulations, apply only to records which exist. G. L. c. 4, 5, 7 (26) (1994 ed.). A subscriptions service may be considered a request for records not yet in existence. A custodian is not required to comply with a prospective request; if he chooses to do so, the fees he may charge are not restricted by the Regulations. However, be aware that a custodian may not require a requester to purchase a subscription rather than a disk or other medium with existing information.
Additionally, if complying with a request required additional programming, such as adding fields or identifiers or merging with other databases, the custodian is actually creating a record to respond to the request. The fee provisions of the Regulations do not apply to the creation of a record, only to existing records. Accordingly, the City may assess a fee in excess of those permitted under the Regulations if it chooses to comply with such a request.
While the GIS implements new technology to provide data in forms not contemplated at the time the Public Records Law was enacted, the broad mandates of the Public Records Law apply to all documentary materials in the custody of the City. Accordingly, disclosure of GIS data upon request is governed by the same principles which apply to all public information.
You indicate that the GIS central processing unit is located in the City’s Assessing Department, and that workstations are located in several departments. You also indicate that an employee of the Management Information Systems (MIS) Department operates and administers the GIS.
A "custodian" of public records is defined as any person with routine access to or control of public records. 950 C.M.R. 33.03. This is not an exclusive definition; often, more than one person may be the custodian of a record. In my opinion, the office which maintains a record is a custodian thereof; that is the custodians of a record are the employees who use the data contained therein in their usual course of business and who have the ability to alter their record system. Those employees who do not ordinarily use a record and who do not have the ability to manipulate the database containing it are users of the information, rather than custodians.
In many cases, MIS departments provide computer storage and support to city offices without themselves having routine access to or control of the records created or maintained by those offices. Accordingly, the status of the City’s MIS Department as a custodian of GIS data depends on the extent of its access to or control of that data, as discussed above.
It should be noted that, in cases where the public record status of GIS information is in question, the Public Records Law provides a reasonable period of time for a custodian to confer with other City employees or the City Solicitor as to whether information must be disclosed. See G. L. c. 66, 10 (b) (1994 ed.) (providing that custodian shall comply with a public records request within ten (10) days). In addition, this office provides informal advice orally as well as formal written advisory opinions concerning public records issues."