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<br />" <br /> <br />,~ <br /> <br />A Study of GIS 10' the Colorado 0ep8llmenl of Nalural ResouR:8s <br /> <br />October 9, 1992 <br /> <br />Under the prior law, there was no clear rule distinguishing computer software from public <br />records, even though both might be included in a publicly maintained database. This factor <br />caused some concern for those government agencies that might put a great deal of their <br />precious resources into the development of a sophisticated piece of software to perfonn <br />necessary business functions. Without some statutory distinction between software and <br />infonnation, these computer programs could apparently be considered a writing and thus <br />required to be disclosed to any citizen for the mere cost of reproduction. A logical <br />extension of this interpretation would be that any GIS or database function that DNR might <br />create in-house must be given to any person who asks. <br /> <br />u;:l <br />-' <br />~ <br />-' <br /> <br />Paralleling this concern was the question as to the status of third party vendor software <br />acquired by the state or its agencies. When such software packages were copied into a <br />publicly maintained database, they could be considered writings within the public record <br />definition under an expansive interpretation of the Public Records law, despite the fact that <br />they are copyrighted by third party vendors. Under the new amendments, this is no longer <br />a point of contention. However, as database software grows in ability and complexity, the <br />distinction between the data and the software may become blurred. The statute would have <br />to be amended again and a more precise definition of what must be released on request <br />added. <br /> <br />It should be noted at this point that FOIA, which was used as a model by many states when <br />creating their open records law, has now addressed this issue through the use of purpose <br />, ,and intent statements, rather than distinguishing software from other public records. The <br />, purpose of FOIA (3 U.S.C. sec. 552) is to open government agency action to the light of <br />public scrutiny. This policy is met by official infonnation that sheds light on an.aKency's <br />perfonnance of its statutory duties, and is "not fostered by disclosure of infonnation~:.that <br />is accumulated in various governmental files but that reveals little or nothing about an <br />agency's own conduct." United States Deoanment of Justice v. Reoorters Committee for <br />Freedom of the Press, 489 U.S. 749, 103 L.Ed 2d 774, 109 S.Ct. 1468 (1989). <br /> <br />Under the ruling in the Rc:porters Committee case, requests for infonnation concerning the <br />perfonnance of statutory duties need not be in the public interest nor meet a public interest <br />standard, but the request must be for the purpose of understanding agency action, not for <br />some other purpose entirely unrelated to this. If the Colorado General Assembly were to <br />adopt a policy that its Public Records access laws are to be interpreted consistent with <br />FOIA, the question as to the intent of the state law would be answered. Or, if the General <br />Assembly were to explicitly place a similar statement of intent, that the goal of the law was <br />to promote public scrutiny of governmental function, in the legislative declaration, the <br />question would be answered. At present, however, there does not appear to be any such <br />statement and so the status of software in publicly maintained databases, though fixed for <br />the moment, remains open to future judicial interpretation and thus uncertainty. <br /> <br />431.7 <br /> <br />PlanG'aphics, Inc. <br /> <br />4 <br />