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New York

What is the law?

Binding, on-point law (about)

The New York case County of Suffolk, New York v. First American Real Estate Solutions, 261 F.3d 179, 183 (2d Cir. 2001), was the first in the nation to bring the copyright status of state government documents into court. County of Suffolk held that a county could assert copyright over mapping data they had created, notwithstanding the state Freedom of Information Law (FOIL). The court held that FOIL required the county to provide a copy of the requested data, but did not prevent them from requiring a license agreement for the subsequent use of the data. [1]

Advisory sources (about)

Prior to the County of Suffolk decision, the New York Committee on Open Government, which is empowered under N.Y. Pub. Off. Law § 89 to issue advisory opinions on FOIL, had issued an opinion stating that government entities could not assert a copyright interest in public documents under FOIL. Committee on Open Government, Opinion FOIL-AO-11992 (2000); see also Committee on Open Government, Opinion FOIL-AO-f11109 (1998). The Suffolk court determined, however, that because the case involved federal copyright law, they were not bound to defer to the advisory opinion of the Committee, and decided the case against the Committee's opinion. Suffolk County at 191. Subsequent to Suffolk, the Committee on Open Government has issued several opinions supporting the court's ruling. See, e.g., Committee on Open Government, Opinion FOIL-AO-15695 (2005).

Public records law (about)

New York first enacted a FOIL in 1974, and has recognized a limited common law right of access to public records since at least 1934. See Connell v. Pub. Serv. Comm'n of New York, 152 Misc. 242, 242, 272 N.Y.S. 29, 29 (Sup. Ct. 1934). The current FOIL can be found at N.Y. Pub. Off. Law § 84.

Does the public records law restrict the use of disclosed records?

A great number of New York cases reiterate that the purpose of the records request is not relevant to disclosure under FOIL. See, e.g., M. Farbman & Sons, Inc. v. New York City Health and Hosps. Corp., 62 N.Y.2d 75, 80, 464 N.E.2d 437, 439, 476 N.Y.S.2d 69, 71 (1984) ("FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose"); Daily Gazette Co. v. City of Schenectady, 93 N.Y.2d 145, 688 N.Y.S.2d 472 (1999) ("An agency's inquiry into, or reliance upon the status and motive of a FOIL applicant would be administratively infeasible, and its intrusiveness would conflict with the remedial purposes of FOIL."); see generally, Reporters Committee for Freedom of the Press, Open Government Guide: Access to Public Records and Meetings in New York. Under County of Suffolk this must be understood as applying to the initial provision of a copy under FOIL only, and does not prevent the state from requiring requestors to agree to licensing terms for subsequent uses. Commercial use does not generally change this precedent. See Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 463, 880 N.E.2d 10, 15 (2007) (Commercial motive of provider of online public land records for seeking county real estate records was irrelevant and was an improper basis for county clerk's denial of provider's FOIL request). However, lists of names and addresses obtained through public records requests may not be used for commercial solicitation. Public Officers Law § 89(2)(b)(iii), clarified in Matter of Federation of N.Y. State Rifle & Pistol Clubs v. New York City Police Dept., 73 N.Y.2d 92, 538 N.Y.S.2d 226, 535 N.E.2d 279 [1989] (ruling that mail fund-raising scheme by public interest group is exempt from FOIL under the commercial purposes exemption of Public Officers Law § 87 (2)(b)).

Specifics and examples (about)

Additional things to consider (about)

Several places in the state code refer to public records as "property of" the state: [4] N.Y. PBG. Law § 226 ("All of the files, papers, documents and property of the state housing board"); N.Y. Educ. Law § 245 ("All books, pamphlets, manuscripts, records, archives and maps, and all other property appropriate to a general library, if owned by the state").

Under N.Y. Arts & Cult. Aff. Law § 57.05(7), "[t]he commissioner of education may request the attorney general to institute legal action for the return to the custody of the state of any record which has not legally been released from state custody."

The New York State Archives notes on their website that some materials in their collections, "particularly State Agency records," may be subject to copyright protection. New York State Archives, General Copyright Statement.

Where else to go

• New York Committee on Open Government, available at http://www.dos.ny.gov/coog/.
• New York State Archives, available at http://www.archives.nysed.gov/aindex.shtml.
• New York State Library, available at http://www.nysl.nysed.gov/.
• Reporters Committee for Freedom of the Press, Open Government Guide: Access to Public Records and Meetings in New York, available at http://www.rcfp.org/rcfp/orders/docs/ogg/NY.pdf.
• Ashley Messenger, Dennis Pitman, Can States Use Copyright to Restrict the Use of Public Records?, Comm. Law., February 2013, at 4, 4-5.

Bibliography

Cases

• Cnty. of Suffolk, New York v. First Am. Real Estate Solutions, 261 F.3d 179, 183 (2d Cir. 2001), available at http://scholar.google.com/scholar_case?case=2339431620333204972.

• M. Farbman & Sons, Inc. v. New York City Health and Hosps. Corp., 62 N.Y.2d 75, 80, 464 N.E.2d 437, 439, 476 N.Y.S.2d 69, 71 (1984), available at http://scholar.google.com/scholar_case?case=12992818097785066012.

• Daily Gazette Co. v. City of Schenectady, 93 N.Y.2d 145, 688 N.Y.S.2d 472 (1999), available at http://scholar.google.com/scholar_case?case=10788269071368183526.

• Data Tree, LLC v. Romaine (2 Dept. 2007) 36 A.D.3d 804, 828 N.Y.S.2d 512, available at http://scholar.google.com/scholar_case?case=15130247226875670496.

• Matter of Federation of N.Y. State Rifle & Pistol Clubs v. New York City Police Dept., 73 N.Y.2d 92, 538 N.Y.S.2d 226, 535 N.E.2d 279 [1989], available at http://scholar.google.com/scholar_case?case=17642868272397465011.

• Connell v. Pub. Serv. Comm'n of New York, 152 Misc. 242, 242, 272 N.Y.S. 29, 29 (Sup. Ct. 1934).

• Banks v. Manchester, 128 U.S. 244, 9 S. Ct. 36, 32 L. Ed. 425 (1888), available at http://scholar.google.com/scholar_case?case=16133594366997127564.

• Wheaton v. Peters, 33 U.S. 591, 668, 8 L. Ed. 1055 (1834), available at http://scholar.google.com/scholar_case?case=16202381618639457867.

• Callaghan v. Myers, 128 U.S. 617, 649, 9 S. Ct. 177, 185, 32 L. Ed. 547 (1888), available at http://scholar.google.com/scholar_case?case=12792990056472306076.

Statutes

• N.Y. Pub. Off. Law § 89, available at http://www.nysl.nysed.gov/libdev/excerpts/pbo89.htm.

• N.Y. Pub. Off. Law § 87, available at http://www.nysl.nysed.gov/libdev/excerpts/pbo87.htm.

• N.Y. Pub. Off. Law § 84, available at http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$PBO84$$@TXPBO084+&LIST=LAW+&BROWSER=BROWSER+&TOKEN=34654730+&TARGET=VIEW and http://www.dos.ny.gov/coog/foil2.html#s84.

• Judiciary Law §438, available at http://law.justia.com/codes/new-york/2006/judiciary/jud0438_438.html.

• N.Y. PBG. Law § 226, available at http://codes.lp.findlaw.com/nycode/PBG/11/226.

• N.Y. Educ. Law § 245, available at http://www.nysl.nysed.gov/libdev/excerpts/edn245.htm.

• N.Y. Arts & Cult. Aff. Law § 57.05, available at http://www.archives.nysed.gov/a/records/mr_laws_acal5705.shtml.

Attorney General Opinions

• 1958, Op.Atty.Gen. 189.

Committee on Open Government Opinions

• Committee on Open Government, Opinion FOIL-AO-11992 (2000), available at http://docs.dos.ny.gov/coog/ftext/f11992.htm.

• Committee on Open Government, Opinion FOIL-AO-f11109 (1998), available at http://docs.dos.ny.gov/coog/ftext/f11109.htm.

• Committee on Open Government, Opinion FOIL-AO-15695 (2005), available at http://docs.dos.ny.gov/coog/ftext/f15695.htm.

Other

• Edward A. Pisacreta & Jonathan P. Mollod, Licensing and Commercialization Issues for Geographic Data, 45 Les Nouvelles 1, 5 (2010).

• Reporters Committee for Freedom of the Press, Open Government Guide: Access to Public Records and Meetings in New York, available at http://www.rcfp.org/rcfp/orders/docs/ogg/NY.pdf.

• New York State Senate, Copyright Policy, available at http://www.nysenate.gov/copyright-policy.

• New York State Education Department, Terms of Use, available at http://www.nysed.gov/terms-of-use.

• New York State Archives, General Copyright Statement, available at http://www.archives.nysed.gov/a/digital/images/about/about_copyright.shtml.

Footnotes

• [1] County of Suffolk was the first case to address this issue. To see how subsequent courts addressed the Suffolk precedent, see Florida, California, and South Carolina.
• [2] Judicial opinions cannot be copyrighted. The Supreme Court in Banks v. Manchester, 128 U.S. 244, 9 S. Ct. 36, 32 L. Ed. 425 (1888) invalidated an asserted copyright by a private publisher, an Ohio citizen, for copyright in the state court reports, holding that any content written by a judge cannot be copyrighted because "[t]he whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all, whether it is a declaration of unwritten law, or an interpretation of a constitution or a statute." See also Nash v. Lathrop, 142 Mass. 29, 35, 6 N.E. 559, 560 (1886) and Wheaton v. Peters, 33 U.S. 591, 668, 8 L. Ed. 1055 (1834). Only materials ancillary to the court opinion such as the "title-page, table of cases, head notes, statements of facts, arguments of counsel, and index" may be copyrighted. Callaghan v. Myers, 128 U.S. 617, 649, 9 S. Ct. 177, 185, 32 L. Ed. 547 (1888). The ancillary materials specified by NY Judiciary Law § 438 satisfy these criteria, and thus are consistent with federal law.
• [3] Most recent litigation touching on the copyright status of state documents has concerned GIS data (see, e.g., the cases in Florida (Microdecisions, Inc. v. Skinner, 889 So. 2d 871 (Fla. Dist. Ct. App. 2004)), California (County of Santa Clara v. Superior Court, 89 Cal. Rptr. 374 (Cal. Ct. App. 2009)), New York (City of New York v. Geodata Plus, LLC, 537 F. Supp. 2d 443 (E.D.N.Y. 2007)), and South Carolina (Seago v. Horry County, 663 S.E.2d 38 (S.C. 2008))). For a general discussion of the copyright status of government GIS data, see Edward A. Pisacreta & Jonathan P. Mollod, Licensing and Commercialization Issues for Geographic Data, 45 Les Nouvelles 1, 5 (2010).
• [4] These statements, as well as the following statute concerning physical custody of public records, do not differentiate between the physical ownership right in the records and the intellectual property right in their contents. It is entirely possible that the state could own and restrict the usage of the physical copies of these records (and have very good reasons for doing so, such as ensuring the continued preservation of the records) while also placing the contents of the records in the public domain. A statement that a record is the "property of the state," therefore, while suggestive, is not dispositive of its copyright status.