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First Amendment Protects West Virginia Web Site Operator Who Posted Public Records

Feb. 5, 2008

First Amendment Protects West Virginia Web Site Operator Who Posted Public Records

Public Citizen Argues Against County Tax Assessor’s Attempt to Stifle Free Speech

WASHINGTON, D.C. – A county tax assessor cannot prevent a West Virginia Web site operator from posting legally obtained tax maps on the Internet, Public Citizen argued Tuesday in a case that could help decide how much control government officials have over the dissemination of their public records.

Kanawha County Tax Assessor Phyllis Gatson is asking a court to force Seneca Technologies of Clarksburg, W.Va. to remove the maps from its Web site, http://foiamaps.senecainfo.com/. The West Virginia State Department of Tax and Revenue provided Seneca the maps after the company won a Freedom of Information Act (FOIA) lawsuit. Under the FOIA ruling, Seneca obtained electronic versions of the maps for a $20 processing fee, rather than the $225,648 the state wanted to charge for 28,206 maps.

In turn, Seneca President Will White is making the maps available free-of-charge on his company’s Web site, which raised the ire of Gatson, who like all West Virginia tax assessors, charges $8 per each paper copy of a map.

Barring White from posting the maps is an unconstitutional prior restraint of free speech, said Paul Alan Levy, an attorney with Public Citizen, which represents Seneca, along with Charleston, W.Va. attorney Anthony Majestro. Levy filed a brief on behalf of Seneca Tuesday with the West Virginia Circuit Court of Kanawha County in Charleston. Levy will argue the case in court on Friday.

The county’s claim that White is improperly posting copyrighted material is wrong, Levy said. The maps cannot be copyrighted because they convey only facts and not ideas or expressions, Levy said. Even if the maps were subject to copyright, the state court does not have jurisdiction in cases of federal Copyright Act violations. Posting of the maps is “fair use” as defined by federal copyright law, Levy said.

“The tax assessor’s reasoning is not only flawed, it’s unconstitutional,” Levy said. “All citizens have a right to share public government documents with each other, whether it’s in the town square or on the Internet.”

READ the documents related to the case.