On Aug 30, 7:30 am, se...@panix.com (Seth) wrote:
> In article <2nu7d3dg0os8m73ufv3ptn1tk4u6l9j...@4ax.com>,
> <wcsny...@gmail.com> wrote:
> >I sponsored a survey that was required by the City for my zoning
> >appeal. Under the state equivalent of the FOIA, can another party
> >request a copy of the survey, and use it to fulfill the same need in
> >an opposing action without permission from me?
>
> They can certainly request it. You don't specify the state, so we
> have no way of knowing if the state has to supply it,
Agreed. But even without an applicable state FOIA, if the survey is going to be used in a contested zoning hearing as evidence, all the affected parties will be able to get copies of it from the zoning office for use in the adversary proceeding. It does not matter whether they want to argue that it supports their side, or whether they just want to know in advance the evidence favoring OP's side so they can find a way to address it more effectively in cross examination and argument.
That's just a requirement of Constitutional due process and basic fairness -- we don't generally allow "trial by surprise" anymore (except that a criminal defendant still doesn't have to reveal his case to the prosecution in advance -- but that's due to a different Constitutional provision, the one against compelled self-incrimination). There's generally no "prove you have a need to know" requirement as a prerequisite to a FOIA request -- after all, the whole idea of such a statute is to make most government information freely available to the general public on request -- but an opposing party in an adversarial proceeding _does_ have a "need to know" and is not relying on FOIA as the reason they should be provided the info.
> If you paid someone (as a work for hire) to write the questions on the
> survey, then you could own the copyright on it. You don't own the
> copyright on anybody's answers, since you didn't hire them to write
> the answers for you. If the state specified the questions on the
> survey, there's nothing copyrightable.
Am I the only one reading this thread who thought OP was talking about a _land_ survey, you know, the kind with measuring tapes and compasses and border marking stakes with colored ribbons and the funny telescope thingies? Not the kind with poll questionnaires.
Zoning decisions frequently require a recent survey of the land to be provided to the authorities but I have never heard of being required to take a poll of the neighbors, asking "what do you think of Joe's new home improvement project?" as though zoning were some kind of popularity contest. Other kinds of surveys that may be required include a traffic-density survey (conducted by a traffic engineer) if a public use facility is being planned, to make sure existing infrastructure will not be overburdened by the proposed development, or a percolation survey (conducted by a hydraulic engineer or hydrologist) if the property doesn't have city water and sewer and may need to rely on a well-and-septic system for its plumbing, to make sure the soil under the lot percolates properly at various locations. But in all those examples the word "survey" refers to some standard data collection protocol which is used in that profession or field, not to a written questionnaire asked of a random group of people.
If it is the latter kind, and a survey is "required" by the zoning authority as a prerequisite to OP's case, I strongly suspect the city specified the questions that needed to be asked, perhaps setting them out in the words of the statute itself, in which case I agree with Seth that nobody has exclusive right to prevent anyone else from using the same questions, or even the same answers, to try to prove something else.
But the bottom line of what I assume OP's real question is, even without regard to FOIA and copyright, a party to a contested proceeding of any kind is not going to be able to prevent an opposing party from getting access to his evidence and using it in the same proceeding or in a related proceeding however the opponent and the law of evidence sees fit, by saying in effect, "it's mine; you can't have it."
--
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
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