TRANSPARENCY TUESDAY: Don’t take “no” for a public-records answer — and don’t take “copyright,” either

On occasion, people in positions of public authority know “just enough law to be dangerous” — not enough to actually get the answer right, but enough to convince themselves that they have, because the answer has lots of authoritative-sounding words in it.

This is the story of one such occasion.

Recently, the SPLC attorney hotline received what started out as an unremarkable call from a college journalist whose request to a government agency for public records was denied. The remarkable part was the justification for the denial: “We can’t give you those documents,” the agency claimed, “because they’re protected by copyright.”

On first blush, this seems … not irrational. Everyone knows there is a Copyright Act. Everyone knows that copyright limits the redistribution of creative works by people other than the rights-holder.

Except that copyright applies to any tangible piece of work with an element of creativity and originality — which can include letters, memos, reports, studies … you see where this is going, right? If copyright law really prevented anyone except the creator from redistributing a government letter, memo, report or study, then pretty soon we wouldn’t have public-records laws at all. The only public records might be lists of numbers on a page — documents that lack creativity and originality.

And we know that’s not the law.

Turns out, there are court interpretations to prove it. The most unforgettable one comes from the Wisconsin Supreme Court, where in 2007 justices were called upon to decide the public records status — of porn.

In Zellner v. Cedarburg School District, a high-school teacher who was fired for viewing “adult” websites on his school computer asked a court to enjoin the school district from honoring the Milwaukee Journal-Sentinel‘s request for a copy of the evidence — which included the cached porn images retrieved from the computer, as well as an investigator’s memo summarizing what was found.

The teacher’s attorneys claimed (among other arguments) that the pornography could not be turned over as a public record — because it would violate the copyright interests of the pornographers.

The case went all the way to the Wisconsin Supreme Court, which in May 2007 decided that production of the photos fell within the “fair use” defense to copyright infringement:

[T]he images and websites listed and recorded in the memo and the CD are not commercial in nature, because they can be accessed free of charge via the internet, and because the District will not profit from the distribution of the images. Additionally, allowing public access to the CD and the memo for purposes of adhering to the Open Records Law will not affect the potential marketability of the images, nor is it likely to relate to their value.

(While a few state open-records laws, including Wisconsin’s, do excuse government officials from providing public records if doing so would violate copyright, it seems pretty clear that the exemption was intended to apply to the rare circumstance where the government happens to be in possession of a valuable piece of creative work that does not memorialize government business. For instance, the library probably can refuse a public-records request to produce a Xerox copy of all Harry Potter books on its shelves.)

The money shot? If a government agency uses copyright law as an excuse for refusing to produce public records — and you’re not asking for cover-to-cover copies of library books — then the denial almost certainly is ill-founded.

As a postscript, we at the Student Press Law Center occasionally make our own public records requests, and just like student journalists we occasionally receive farfetched rationalizations instead of documents. Some months back, we requested a copy of a model school governance policy from the Pennsylvania School Boards Association — a policy that had been circulated to dozens of school districts as a recommended set of “best practices.”

The PSBA wrote back to say not only that it wouldn’t comply with the request, but that none of its member school districts would either, because the model policies — documents that elected government officials were circulating amongst themselves as the basis for voting on the public’s business — were copyright-protected property.

Good thing the school districts understood their freedom-of-information responsibilities. Trying to hide government documents behind copyright isn’t just dirty — it’s … pornographic.