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<br />" <br /> <br />A Study of GIS fa, the Cola,ado Department a! Natu,aJ Resources <br /> <br />Octabe, 9. 1992 <br /> <br />'. <br /> <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. <br /> <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. <br /> <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. <br /> <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. <br /> <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. <br /> <br />".' . <br /> <br />431.7 <br /> <br />PlanGraphics. Inc. <br /> <br />11 <br />