October 16, 2013
Tax Maps & Public Records

by Justice Paul E. Pfeifer

County engineers don’t often get much attention, but they perform some vital functions. In Scioto County, one of those functions – the making of county tax maps – came under scrutiny in a case that came before us – the Supreme Court of Ohio.

Under Ohio law, a board of county commissioners may “designate the county engineer to provide for making, correcting, and keeping up to date a complete set of tax maps of the county.”

The Scioto County Engineer’s Office does not maintain tax maps of individual properties in the county. Instead, the office maintains electronic data files from which the maps may be created when a person inputs search parameters.  The data files require a software program to enable a computer to create a readable tax map, and without the program, the data cannot be compiled in a readable format.

The engineer’s office provides free public access to the data via a public terminal during its regular business hours and charges $1 for an 11-by-17-inch copy of a tax map and $2 for a tax map with a black-and-white aerial photograph.

Making the maps is a collaborative effort. The maps include information derived from deeds kept by the recorder’s office, aerial photographs taken by a company named Woolpert, Inc., and text files generated by another company, named Manatron, Inc., which uses information from the auditor’s office.

The electronic files containing all the information are processed by a system created by a company called Environmental Systems Research Institute, Inc. (“Esri”). The Esri system allows the information to be compiled for specific tax maps, depending upon the request.

Esri commercially develops and licenses geographic-information systems software. Esri’s software has numerous copyright registrations, which are protected under federal copyright law. In 2005, the Scioto County engineer purchased two software packages from Esri. Use of these products by the engineer’s office is subject to a license agreement under which no part of the software or data may be reproduced or transmitted to third parties without Esri’s express written permission.

Which brings us to Robert Gambill, the owner/operator of a real-estate-appraisal business in Scioto County. Gambill uses maps and aerial photographs in making his property appraisals. In 2006, Gambill purchased a disk permitting him to display and print tax maps and aerial photographs created in 1999 and 2000 on his own computer.

But in April 2007, Manatron updated the systems information for the auditor’s office, and the new system was not compatible with the system in the engineer’s office, meaning that the property information could no longer be updated. A year later, the engineer’s office hired Woolpert to make the systems compatible.

Due to the upgraded systems, the engineer’s office can no longer create data files for purchase by the public. That’s because, without the Esri software which is entitled to copyright protection, the data cannot be compiled in a readable format.

In September 2011, Gambill requested that the county engineer provide him, at actual cost, with copies of certain records from January 2010 to September 2011, including “copies of any electronic database of maps and aerial photographs of all Scioto County properties.”

The engineer responded by noting that his office did not maintain maps and aerial photographs of properties in any format other than electronic. The engineer also informed Gambill that the engineer’s office formulates each tax map through the use of the Esri software, which is protected by copyright law.

To meet Gambill’s request, the engineer’s office would need Woolpert to extract the information necessary to formulate a tax map, absent Esri software. The cost of that extraction was estimated at a minimum of $2,000 plus the cost of a hard drive. In July 2012, Gambill filed a court action seeking a writ to compel the engineer to comply with Ohio’s Public Records Act, and provide copies of the requested records at actual cost, plus attorney fees.

Gambill was requesting paper copies of maps and photographs, but the engineer’s office doesn’t maintain the data in that manner. Instead, each requested tax map is a new image that the computer creates when the requester inputs search terms. But Gambill’s main request was for a copy of the electronic database that the engineer maintains.

The engineer argued that this database does not constitute a “record” for purposes of the Public Records Act. But our court disagreed. Under the Public Records Act, a “record” includes any document or device regardless of physical form “including an electronic record…” Thus, the database is considered a record according to the Act.

The engineer maintained that if the database is a record, it is still exempt from disclosure because it is inextricably intertwined with the copyright-protected Esri software. The Act exempts records “the release of which is prohibited by state or federal law.”

Gambill acknowledged that the Esri software was not subject to disclosure. He claimed, however, that he wasn’t requesting the exempt software; rather, he was requesting the engineer’s electronic database, which includes the raw data used to create the maps and photographs. But the engineer’s office couldn’t separate the requested raw data from the exempt Esri software files.

Our court therefore concluded that the nonexempt records were not subject to disclosure because they are inseparable from the Esri software. By a six-to-one vote, we denied Gambill’s requested writ.

I cast the dissenting vote because the county engineer has intertwined public records with proprietary software and expects citizens seeking public records to pay an exorbitant price to untie the knot. A person seeking pubic records should expect to pay the price for copying the records, but not the price for a pubic entity’s mistake in purchasing inefficient software.

Will every citizen asking for what Robert Gambill sought – access to records that the majority acknowledged are public records – also have to pay $2,000? The decision in this case encourages public entities desiring secrecy to hide public records within a software lockbox and require individual citizens to provide the golden key to unlock it.

EDITOR'S NOTE: The case referred to is State ex rel. Gambill v. Opperman, 135 Ohio St.3d 298, 2013-Ohio-761. Case No. 2012-1296. Decided March 7, 2013. Majority opinion Per Curiam.