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A federal judge has reversed himself and lifted an injunction that blocked a real estate company from copying and distributing tax maps made by Suffolk County, N.Y. New York Southern District Senior Judge John F. Keenan found that New York’s Freedom of Information Law (FOIL) allows any person or company to freely copy the tax maps — and thus overrides any claim of copyright infringement. Confronting a case of first impression on May 15 in County of Suffolk v. Experian Information Solutions, Inc., 99 Civ. 8735, Keenan rejected several arguments brought by two real estate firms in support of their right to copy maps that Suffolk County began producing in 1974. The county now produces, and updates annually, 4,600 maps showing more than 500,000 properties in 10 townships. In issuing the preliminary injunction, Keenan said he was not bound by unpublished, advisory opinions of the Committee on Open Government, the state agency which oversees the implementation of FOIL. Manhattan-based Experian Information Systems, along with co-defendant First American Real Estate Solutions of Rochester, which later purchased Experian, had presented two advisory opinions from the committee, stating that a claim of copyright regarding a government-produced record would be superseded by FOIL. “In general, the status or interest of a person seeking records is irrelevant to that person’s right of access … ” one opinion stated. The second opinion used similar language. REASON TO RECONSIDER But Keenan was moved to reconsider the importance of the advisory opinions by a third opinion, also from the Committee on Open Government, that was issued after briefs were filed for the May decision. Acting on First American’s motion to reconsider the May ruling, the judge said the company had correctly noted that the court must construe FOIL as a New York court would. “[I]n interpreting the meaning and scope of FOIL, New York courts must defer to interpretations of FOIL contained in the advisory opinions of the Committee on Open Government unless those interpretations are irrational or unreasonable,” he said. Keenan said that, in his May ruling, he had rejected the first two opinions of the committee because they contained “merely conclusory statements that failed to provide the court with any real basis for determining whether their interpretation of FOIL was irrational or unreasonable.” “In contrast,” he said, the third opinion “provides extensive analysis and support for its interpretation of FOIL,” to the extent that it constituted a “change in the applicable law for purposes of a motion to reconsider.” The third opinion, issued in response to an inquiry on geographical data from the Department of Transportation, states that personal gain is at the “heart” of copyright protection as an economic incentive, and, “unlike authors or creators,” government agencies do not need such an incentive to produce a public document because they already have a duty to “collect, organize and disseminate information.” The opinion also states that the assertion of copyright claims in such a context is “contrary to the intent of both the FOIL and the Copyright Act.” In this case, Keenan said, “the court finds that the committee’s interpretation of the FOIL” in that opinion, “is compatible with FOIL’s purpose of providing maximum access to public records. “Plaintiff, similar to the DOT, does not prepare the maps in question for economic gain and has no commercial interest in preparing the maps,” he said. “Rather, plaintiff prepares the tax maps because it is plaintiff’s statutory obligation to prepare them. “As a result, this ruling will not create a disincentive for counties to create these tax maps.” Assistant County Attorney Jeltje deJong represented Suffolk County. Andrew L. Deutsch and Edward F. Maluf of Piper Marbury Rudnick & Wolfe represented the defendants.

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