Will Your Neighbor’s Deed Be Available Online?

More and more public records are being made available online. This is a generally a good development. After all, who wants to trudge on down to the County Clerk’s Office and deal with the clerk or the microfiche reader. Various commercial enterprises are seeking to put this public data online seeking to make a buck. One such company is Data Tree, LLC.

On Tuesday the Court of Appeals had before it an interesting Freedom of Information request by Data Tree to get access to Suffolk County land records in order to put them online – Matter of Data Tree, LLC v Romaine, 2007 NY Slip Op 09906.

Data Tree is a national company that provides online public land records such as deeds, mortgages, liens, judgments, releases and maps, and maintains a database of nearly two billion documents, providing its customers with immediate electronic access to the information. Its customers are those entities who purchase, sell, finance and insure property. Data Tree obtains the public land records by requesting them from county clerks, or other public officials who have the responsibility of recording and archiving such documents, throughout the country.

In January 2004, Data Tree, pursuant to the Freedom of Information Law (FOIL) [Public Officers Law § 84 et. seq.] wrote the Suffolk County Clerk’s Office requesting copies of public land records from January 1, 1983 to the present. Data Tree requested the records in TIFF images or in images in the electronic format used by the County, on CD-Rom or other electronic storage medium regularly used by the County.

The Clerk denied the request on three grounds: (1) the FOIL request would require re-writing and reformatting of the data; (2) disclosure would constitute an unwarranted invasion of personal privacy due to the volume of the records requested and the commercial nature of Data Tree’s business; and (3) the records were available for copying and/or downloading from the computer terminals at the Clerk’s Office.

After the Clerk denied the request, Data Tree commenced an Article 78 proceeding directing the Clerk to provide the records. Both the Supreme Court and the Appellate Division granted summary judgment to the County denying Data Tree’s request.

However, the Court of Appeals reversed and found that questions of fact existed as to whether compliance with Data Tree’s request would require the Clerk to disclose private information exempt from FOIL, and whether the Clerk had the ability to comply with the request in the format sought by Data Tree.

The Court of Appeals stated that Data Tree’s commercial motive for seeking the records was irrelevant; Data Tree was not seeking a list of names and addresses to solicit any business. Rather, Data Tree was seeking public land records for commercial reproduction online. The Court acknowledged that some of the documents could contain private information, such as social security numbers and dates of birth etc. However, the Court stated that there were questions whether such private information could be redacted and thus remitted the matter to Supreme Court to determine whether such information could be redacted. The Court also found that there was conflicting affidavits, and thus questions of fact, as to whether Data Tree’s request could be fulfilled by merely retrieving information already maintained electronically by the Clerk’s office or whether complying with Data Tree’s request would require creating a new record.

The march of public data to online sources is likely unstoppable. The more appropriate question might be whether we should require all public agencies to put all data online easily accessible to all? Or should we rely on commercial enterprises like Data Tree to provide such information?

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