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<br />
<br />A Study of GIS fa, the Cola,ado Department a! Natu,aJ Resources
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<br />Octabe, 9. 1992
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<br />Archer and Croswell, Public Access to Geographic Information Systems: An Emerging
<br />Legal Issue, Photo\!l'ammetric Enl!ineerinl! and Remote Sensin~. Vol. 55, #11,
<br />Nov. 1989, at page 1575.
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<br />However, there are reasons why the proprietary inodel may not be appropriate. First, fees
<br />imposed to screen frivolous requests or which return to ONR only a small fraction of
<br />system development costs, in addition to the marginal cost of reproduction, should not be
<br />considered "sales" of data. Rather, they should be treated as legitimate police power fees,
<br />as more fully discussed later in this section.
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<br />Second, electricity is generated as part of a business activity, and the intent is to sell iL
<br />ONR did not develop its current geographic information systems (and presumably would
<br />develop future GIS) for the primary purpose of selling information. The GIS was
<br />developed in order to support the roles and functions mandated of ONR by state law or
<br />assumed over the years of operation of ONR. As a support tool for governmental
<br />functions, GIS, like other state information processing capabilities, is an integral part of
<br />truly governmental activities.
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<br />Third, information dissemination is itself a governmental function. Fred B. Wood, a
<br />Senior Associate in the Office of Technology Assessment, United States Congress, in
<br />remarks before the Federal Pre-White House Conference on Libraries and Information
<br />Services, November 27, 1990, opined that "[f]ederallibraries and information centers
<br />serve inherently governmental functions and are vital to ensuring public access to Federal
<br />information." (As quoted in Hernon, Government Information Policy Prin'cipJes,
<br />Government Information Ouarterlv, Vol. 8, #4, atpage 396.) While' the level of~elee to
<br />be charged for information products and services may be debated, the function of
<br />disseminating those products and services is clearly governmental.
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<br />Fourth, and, perhaps most fundamental, the distinction between governmental and
<br />proprietary functions is becoming more and more blurred. It is becoming increasingly
<br />difficult to distinguish between governmental and proprietary powers. Citing C. Antieau,
<br />Municipal Comoration Law, Professor John E. Lopatka of the University of IlIinois Law
<br />School has stated that "The governmental versus proprietary test has proven so unworkable
<br />that the highest courts of 35 states have openly repudiated iL" Lopatka, State Action and
<br />Municipal Antitrust Immunity: An Economic Approach, 53 Fordham L. Rev. 23 (1984), at
<br />note 332. Because of the blurring of the boundary between governmental and proprietary
<br />activities, and because of the importance of information to the functioning of any large,
<br />government agency, such as ONR, it would seem that the provision of information
<br />services, whether from a GIS or other information delivery systems, should be classified
<br />as governmental, rather than proprietary.
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<br />431.7
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<br />PlanGraphics. Inc.
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