|ACCESS TO COMPUTER PUBLIC RECORDS |
by David S. Bralow
B. Right to Software
C. Changes in Format
B. Computer Records Are Public Records
2. Special Computer Considerations
3. Remote Electronic Access
B. Additional Exceptions to Access Agency-Created Software
C. Private Sector Software Exception
2. Present Statute
D. Software Considerations and Public Record Act Policy
About the Author
Computer technology raises three basic questions regarding the Public Records Act. The primary consideration is whether electronic government information constitutes public records at all. Second, are the software programs developed by or licensed to state agencies accessible? Finally, does the public have a right to ask the State to produce electronic records in any particular format?
The public's right to public records does not recede simply because records are stored magnetically on computers. Electronic information, on networked and stand-alone computers, retains its "public record" status when intended to "perpetuate, communicate or formalize knowledge of some type" or when it supplies "final evidence of knowledge obtained in connection with the transaction of official business.''
B. Right to Software.
Legislation that gives agencies the right to copyright and license proprietary software at market rates is ambiguous as to whether agencies can restrict public records access to proprietary software. The statute allows both a restrictive and expansive interpretation. One theory is that the agency must provide proprietary software only when it is necessary to understand the records. The expansive interpretation is that an agency must provide copyright software at "cost" as a public record. There are no judicial decisions. Furthermore, the Legislature in 1985 also imposed key exceptions to the Public Records Act that restrict agency-created "sensitive" software and privately-licensed "trade secret" software.
C. Changes in Format.
An agency has a duty to provide the public record, even if computerized, in its original form. Under most circumstances, an agency has no independent duty to alter or revise the record. However, when the computer record is unintelligible or inaccessible without format changes, the records custodian has a duty to alter the record. The Public Records Act does allow the custodian to recoup technical costs when revising the computerized record.
II. Computer Records, Including Records Stored in Non-Networked Personal Computers, Are Public Records Within the Meaning of the Public Records Act.
The Florida Legislature's policy is manifest:
The purpose of the Public Records Act and its counterpart, the Government In The Sunshine Law, Section 286.011 et seq., Fla. Stat. (1993), is to "promote open government and citizen awareness of its working" and, therefore, "enhance and preserve democratic processes." Byron, Harless, Schaffer, Reid & Assocs., Inc. v. State ex rel. Schellenberg, 360 So. 2d 83, 97 (Fla. 1st DCA 1978), quashed on other grounds, 379 So. 2d 633 (Fla. 1980). The people of this state have a right to an open government so that citizens can adequately evaluate their elected and appointed officials' decisions. Browning v. Walton, 351 So. 2d 380, 381 (Fla. 4th DCA 1977). That right, in Coleman v. Austin, 521 So. 2d 247 (Fla. 1st DCA 1988), was described as a substantive right. Now, after the enactment of a constitutional amendment, that right is of state constitutional importance. Without access to public documents, including computer records, citizens will be unable to guide and inform their government officials of their will.
The public's right to public records information does not recede because it is stored on a magnetic disk rather than in a manilla folder. In fact, the growing computerization of public records demands that computer-stored information be evaluated under the same open government policy standards as hard copy documents.
The Public Records Act defines public records as:
As in every public record case, the fundamental issue is whether the computer information was "made or received . . . in connection with agency business." Sec. 119.011(1), Fla. Stat. In Shevin, the Florida Supreme Court held that any information intended to "perpetuate, communicate or formalize knowledge of some type" is a public record. The court held that records "merely prepared for filing even though not part of an agency's later, formal public product, would nevertheless constitute public records inasmuch as they supply final evidence of knowledge obtained in connection with the transaction of official business." (emphasis added). The court also stated: "To be contrasted with public records' are material prepared as drafts or notes, which constitute mere precursors of governmental records' and are not, in themselves, intended as final evidence of the knowledge to be recorded." Id.
The Shevin analysis is particularly important in the computer data context. For instance, the Attorney General's Office opines that data created as part of the task of manipulating information from an input computer file to an output file (known as intermediate data files) does not constitute public records within the meaning of Sec. 119.011(1), Fla. Stat. The Attorney General's Office considers these intermediate data files to be "mere precursors of governmental records" and not designed to "communicate" with anything other than the computer itself. Fla. AGO 85-087.
In contrast, the Attorney General's Office believes that the use of a network computer system for electronic calendars, electronic mail, bulletin boards and private databases creates public records if the system is used to communicate or perpetuate information. Furthermore, board members would violate the Government in the Sunshine Law if they used the electronic billboards to communicate among themselves on matters coming before the board. Fla. AGO 89-39.
The communication/perpetuation analysis also applies to non-networked desktop computers. Hypothetically, a records custodian might argue that information stored on non-networked computers constitutes drafts and notes rather than public records. Because the computer is not networked, the records custodian also might argue that the stored information has not been communicated. The purpose of the document, however, may be to perpetuate information or "supply the final evidence of that knowledge." Shevin, 379 So. 2d at 640. In that case, such information would be considered public.
2. Special Computer Considerations.
The Florida courts have experience in determining whether a document is a note, a draft or a public record. See Times Publishing Co. v. City of St. Petersburg, 558 So. 2d 487 (Fla. 2d DCA 1990). The issues do not change merely because the document is stored on an electronic disk rather than in a steel cabinet. Seigle, 422 So. 2d at 65. What has changed is the ability to avoid the disclosure. Computer technology provides records custodians with a "push button" ability to hide and destroy public records. Furthermore, a person with only a rudimentary understanding of a computer operating system can hide a file so that it cannot be located without a special diagnostic program.
The relative ease of destruction and obfuscation creates additional challenges for reporters. First, they need to know something about the equipment and software used not just by agencies that process large amounts of data — i.e., the county clerk, the property appraiser, etc. — but also by agencies that use computers solely for word processing, spreadsheet analysis and other basic office functions. Second, reporters need to know something about the computer habits of the agencies and officials they cover. This type of information will provide the reporters (and their lawyers) with an insight on whether the data within a computer is a "draft" or a public record. It is not just feasible but likely that documents designed to perpetuate knowledge and responsive to a Chapter 119 request remain uncovered because nobody thought to search the storage of a secretary's computer. Therefore, as a matter of practice, reporters also should include a request for all electronically stored documents relating to their inquiry.
3. Remote Electronic Access.
The Florida Legislature has urged government agencies to provide remote electronic access for public records. See Sec. 119.01(2), Fla. Stat. (West 1995) (agencies should strive to provide remote electronic access). Pursuant to Sec. 119.085, governments may provide "dial up" computer access to public records databases. The fee charged for this type of access may include direct and indirect costs if the user obtains access pursuant to a contract. Fees for the general public are limited by Sec. 119.07(1), Fla. Stat.
III. The Public Records Act Allows Records Custodians To Limit Access to Proprietary Software Designed by Both the Agency and the Private Sector.
Before October 1990, proprietary software designed by most agencies was accessible to the public. Fla. AGO 86-94. Then the Legislature enacted a proprietary software exception to the Public Records Act. Under Sec. 119.083, Fla. Stat. (1993), all agencies may obtain and enforce copyrights for agency-created "data processing software." Data Processing Software is defined by Sec. 282.303(6), Fla. Stat. (1993), as "programs and routines used to employ and control the capabilities of data processing hardware, including, but not limited to operating systems, compilers, assemblers, utilities, library routines, maintenance routines, applications, and computer networking programs." For the sake of the laymen, this list includes just about all functions a computer can perform. Furthermore, Sec. 119.083, Fla. Stat., allows agencies to sell licenses to private and public agencies and use the proceeds of the sales. With one important exception, license fees may be based on competitive, private sector, market rates. The statute reads:
While the statute is not a model of clarity, by using the terms "application to data" the law seems to allow public access to agency-created proprietary software when the requestor wants the program to obtain agency-stored data. If the requestor wants the software for applications unrelated to viewing agency-stored data, the custodian may charge a market-based licensing fee. The statute's language does not provide guidance on whether "application of data" means mere access to the underlying information or means extrapolation, calculation, and manipulation. In other words, the section can be read either as one that provides mere access or one that allows significant use of the data through agency software. The statute simply states that when software is provided under this "application to data" section, the records custodian may not charge market-based license fees. The custodian my charge only the statutory duplication cost recognized in Sec. 119.07(1), Fla. Stat., i.e., the cost of the material and supplies used to duplicate the record. It does not include the labor cost and overhead cost associated with duplication.
If the statute is construed to be consistent with the only appellate decision relating to software, Seigle, such a construction could limit access. In that case, the court stated that information that is accessible only through the use of agency-created software is akin to coded information. If a requestor can interpret public data only by access to the code, the agency must produce its code book. 422 So. 2d at 66. In other words, the public must have access to the software that will make agency-stored data meaningful. The concern is that a court will interpret Seigle to mean that the public has a right of access to software only when it is necessary. If it is not necessary, but only convenient, a court under a restrictive interpretation could deny access. Clearly this restrictive interpretation violates the spirit and policy of the Public Records Act. Since software was developed at public expense, the term "application to data" should mean all purposes including manipulation, extrapolation, and calculation. This is an expansive reading of the statute.
Sec. 119.083, Fla. Stat. is a compromise. It provides incentives to local governments to recoup software development costs by allowing them to license proprietary software. However, the statute devises an agency profit incentive by allowing government to enter the private marketplace to sell software licenses. Therefore, it creates a disincentive for the agencies to release such software to the general public under the Public Records Act.
A records custodian who wanted to preserve profit incentives and restrict distribution of proprietary software could argue that as long as the data provided is a complete representation of the contents of the public record (by hard copy computer printout, for instance), he does not have to provide the software. The software is unnecessary for "the application to data or information maintained or generated by the agency" as established in Sec. 119.083, Fla. Stat.
At present, there are no other judicial interpretations besides Seigle. Even legislative history does not shed any light on this problem. Ultimately, the courts or the Legislature will have to resolve the internal conflict imposed on the records custodian to preserve software profit incentives while performing his public information duties. There is an Attorney General's Opinion that indicates that the agency has a duty to provide the software regardless of its intended use. Fla. AGO 91-61 (Aug. 23, 1991).
Sec. 119.083, Fla. Stat., gives agencies commercial exploitation rights of agency-created software and, at least arguably, restricts public access to that type of programming. There is another agency-produced software exemption to the Public Records Act:
b. Collect, process, store, and retrieve financial management information of the agency, such as payroll and accounting records; or
c. Control and direct access authorizations and security measures for automated systems.
An early version of the House Bill defined sensitive software as any program about which it can be said "that the health, safety, or welfare of the general public is at risk through its disclosure and, therefore, a compelling governmental interest is served by its exemption from subsection (1)." Subsections (a)-(c) were added as examples rather than as an exclusive list. In a March 22, 1985 letter, Ed Levine, former Staff Director of the Joint Committee on Information and Technology Resources ("JITR"), provided a comparison of the House version, Senate version and JITR version. The language that ultimately became law was that proposed by JITR.
Levine explained that he removed the "compelling interest" language to limit agency discretion. He reasoned that the three exempt categories would be sufficient for the state interests. It is ironic that someone would remove "compelling interest" language to prevent the use of legislative discretion. The "compelling interest" language has served the public well in a variety of constitutional areas, including the first amendment right of access to judicial proceedings. It is also ironic that the media now face judicial battles related to vague terms. Had the media been watchful, the "compelling interest" language might have survived. Given the Public Records Act's historical solicitude for access to information and its rule of construction that exceptions to the Public Records Act should be narrowly construed and limited to their stated purpose, In re Public Records, 493 So. 2d 480, 483 (Fla. 2d DCA 1986); Bludworth v. Palm Beach Newspapers, Inc., 476 So. 2d 775 780 n.1 (Fla. 4th DCA 1985), the compelling interest test would be consistent with state policy.
Section 119.07(2)(q), Fla. Stat. also has a private software exemption. It states:
Prior to 1985, the private sector had no statutory protection for proprietary material licensed for use to a state agency. Private copyrighted material was not exempt under the Public Records Act. However, the Attorney General's Office was of the opinion that federal copyright law preempted the Public Records Act. See Fla. AGO 82-63 (agency must not allow reproduction or distribution of copyrighted material). The Attorney General's opinion drew the distinction between copying and distributing protected material and permitting access to records for public examination. The Attorney General's Office said it would be acceptable to provide access to the copyrighted material as long as it was not reproduced and distributed. The Attorney General's opinion failed to consider the archive provisions of the Federal Copyright Act, 17 U.S.C. Sec. 108, which allow an archivist to provide a single copy if the records custodian is not aware of any intent by the recipient to use that material for a commercial purpose. Reporting the news is not considered a commercial purpose.
2. Present Statute.
Section 119.07(2)(q), Fla. Stat. does not follow the Attorney General Office's analysis. By relying on the trade secret concept rather than copyright, the Legislature broadened the limited exemption recognized by the Attorney General.
The determinative facts in Section 119.07(2)(q), Fla. Stat. are 1) whether the software constitutes a trade secret; and 2) whether the software is subject to a restrictive licensing agreement. Fla. AGO 90-104. By statute, a trade secret is defined as:
2. Of value;
3. For use in or by the business; and
4. Of advantage to the business or providing an opportunity to obtain an advantage, over those who do not know or use it when the owner thereof takes measures to prevent it from becoming available to persons other than those selected by the owner to have access thereto for limited purposes.
By not codifying the Attorney General's copyright interpretation, the Legislature has caused confusion. One could request all proprietary products that are not trade secrets. It is easy to think of a situation where a licensed product is not a trade secret — the very WordPerfect program used to generate this article for instance. A computer programmer can take it apart much like a watch to see how it works. It's the license agreement that protects unauthorized use and the copyright that protects unauthorized copying, not its secrecy. Under this statutory scheme, one could receive software trade secrets held by the government that have not been provided under a license agreement.
The interrelationship of trade secret, license, and agency-produced software illustrates that access to these types of public records now depends as much on who generated the record as the record's subject matter. To protect reporters' access rights, it will be important to identify the various intellectual property interests at stake.
What is particularly disturbing about Sec. 119.07(2)(q), Fla. Stat. and Sec. 119.083, Fla. Stat. is their inconsistency with the history and policy of the Public Records Act. The Public Records Act is not limited by the overall right of privacy found in the Florida Constitution. Cf. Post-Newsweek Stations, Fla., Inc. v. Doe, 612 So. 2d 549 (Fla. 1992); Forsberg v. Housing Auth., 455 So. 2d 373 (Fla. 1984). The Public Records Act does not exempt attorney-client communications and only provides limited work product exemptions. Wait v. Florida Power & Light Co., 372 So. 2d at 420 (Fla. 1979); and Sec. 119.07(3)(n), Fla. Stat. The Legislature has made a policy decision that these recognized rights are of lesser importance when balanced against the right of public information. However, the software exemption places private commercial interests and government profit incentives above the public's right to know. It does so without any findings whatsoever of any devaluation of proprietary software used by government. It does so even when copyright, patent, and other intellectual property laws are more than capable of protecting private commercial interests without burdening access rights. It should be noted that the laws relating to intellectual property were developed to facilitate the free exchange of art, learning, and ideas in the marketplace. These laws should not be invoked to restrict public access.
IV. The Public Records Act Neither Requires Agencies To Provide Data in Any Particular Format Nor Does It Require Agencies To Allow the Manipulation of Data for the Private Purposes of the Requestor.
In Seigle, an expert hired by a school teachers' union sought computer information in a particular format that could be manipulated for empirical purposes. Despite the union's willingness to pay to design a program to manipulate agency data, the Fourth District Court of Appeal rejected any governmental duty to produce records in any particular format or to allow the manipulation of its data.
The court reached its decision by considering whether there was any right of access to "hard copy" in any particular format. It stated that if all health department dog bite cases were stored chronologically, there would be no duty for the custodian to rearrange those documents geographically for the benefit of a requestor. 422 So. 2d at 65. The same should apply to computer information. The court concluded that if the data is accessible, the requestor can provide its own expert to manipulate it for its purposes.
The Seigle court, however, recognized certain circumstances when a court should order manipulation of the data. When the form of the present data "do[es] not access all the public records stored in the computer data banks;" when "the available data format would include exempt information;" when "the computer record for some reason does not fairly and meaningfully represent the records," or in "other exceptional circumstances," format and data manipulation can be required under the public records law. 422 So. 2d at 67. The requestor should pay the cost of the program necessary to manipulate this data.
Courts in other jurisdictions agree with the Seigle holding. In all the following cases, the courts ordered the alteration of existing formats to provide access to public records while excluding exempt material. See Bowie v. Evanston Community Consol. School Dist. No. 65, 128 Ill. 2d 373, 131 Ill. Dec. 182, 538 N.E.2d 557 (1989); Western Servs. v. Sargent School Dist. No. RE-33J, 719 P.2d 355 (Colo. App. 1986); Maher v. Freedom of Info. Comm., 192 Conn. 310, 472 A.2d 321 (1984); State v. Harder, 230 Kan. 573, 641 P.2d 366 (1982); Kryston v. Board of Educ., 430 N.Y.S.2d 688 (App. Div. 1980); Long v. United States Dep't of Revenue Serv., 596 F.2d 362 (9th Cir. 1979); Contra Yeager v. Drug Enforcement Admin., 678 F.2d 315 (D.C. Cir. 1982) (the government is not required to create new public records).
Seigle supports an argument that only in circumstances where the data otherwise would not be "accurate" are formatting services required. Under this interpretation, a county official could provide hard copy of a property assessment roll rather than a computer tape. Given that the usefulness of computer information depends on its manipulation, and the expense of entering information from hard copy into a computer might preclude all but a "symbolic" access, this argument, if accepted, would relegate the public to some pre-modern "hard-copy" world while the state advances to the information age. The public carefully must develop the theory that meaningful access requires the ability to manipulate data for the public's purpose. Otherwise, access to a vast collection of numbers is fundamental to a denial of access.
The right to review computerized public records is crucial. It is no longer some arcane concern for the newsroom technocrats. Even core public records — criminal investigative material, for instance — now is stored on computer disks. The importance of this access to computerized records will only increase. Agencies presently are automating their records and putting in place retrieval systems. If the rights of access guaranteed by the Public Records Act and the Florida Constitution are to remain meaningful, issues relating to computerized public record access must be foremost in the minds of those who use the Public Records Act on a daily basis.
News organizations should be vigilant. They should insist, for instance, that when agencies select computer software and equipment for the maintenance of information, that agencies consider easy and economical public access to that information at the inception of the project. In fact, new Division of Library Archive rules demand this type of analysis. News organizations should demand that computerized records be used as a tool to increase public access to information rather than restrict it. They should insist that software programs be created for the easy redaction of exempt material rather than force the public to pay extraordinary costs at some later time. These are a few of the issues that will arise in the future. Unfortunately, some agencies attempt to resist public access to information and attempt to use that information for their own proprietary interests. While the public's rights do not recede because records are stored on magnetic disks, recent trends in access favor protecting proprietary interests rather than the public's ability to easily access and manipulate data.
The primary public records question remains whether the record or data is intended to "perpetuate, communicate or formalize knowledge of some type" or to "supply final evidence of knowledge obtained in connection with the transaction of official business." But to apply this formulation to computer records, reporters will need to know something about the equipment and software used by agencies and the computer work habits of those using them. One public official may use computers solely for initiating drafts while another may use it as his personal archive. This information is essential for determining whether any exception is applicable. That is because new exceptions make the originator of the software, the purpose of the software and, in some case its user, dispositive.
The challenge facing reporters is to prevent restrictive applications of the computer software exemptions. The tension between agencies' proprietary software businesses and public access is patent on the face of the Public Records Act. Reporters should attempt to convince agencies to construe terms "the application to data or information maintained or generated by the agency" in Sec. 119.083, Fla. Stat., or "sensitive" or "trade secret" in Sec. 119.07(2)(q), Fla. Stat., in a limited manner. Furthermore, media organizations should endorse efforts to repeal Section 119.083, Fla. Stat.
ABOUT THE AUTHOR
David S. Bralow is a member of the media team at the law firm of Holland & Knight in Tampa. He graduated summa cum laude from Temple Unive-rsity Law School in 1986. He received his M.S.J. from Northwestern University's Medill School of Journalism in 1979 and a B.A. from Hampshire College in 1977. Mr. Bralow is a member of the Flor-ida and Pennsylvania Bars and is ad-mitted to practice before the United States Court of Appeals for the Eleventh Circuit, and the United States District Courts for the Middle District of Florida and the Eastern District of Pennsylvania. Besides media law, Mr. Bralow practices in the intellectual property and antitrust areas. Prior to practicing law, Mr. Bralow was a newspaper reporter in Pennsylvania, Florida and New York.
Authored by the Media & Communications Law Committee, the handbook serves as a resource guide for members of the media about topics in the legal profession.