In a typical retracement survey, the results are made public through the monumentation of corners and the recording of plans. However, a client’s interests may suggest that the surveyor not publish his work through these means as a matter of client confidentiality. But does the surveyor retain the right to reuse the information acquired in the survey? Who owns the data, and to what extent should those data be shared with other surveyors? Is it ethical to use the results of survey A in the process of a survey for client B?
Most of these questions can be addressed through carefully worded contracts. A survey contract should contain clauses specifying the delivery items as well as the ownership of the surveyor’s work product. For instance:
Upon completion of the survey, Surveyor shall furnish to the client the original and copies of the resulting plat or map and copies of Surveyor’s boundary description and any formal reports prepared by Surveyor. The boundary description prepared from the survey embodies Surveyor’s opinion of the location of the boundary lines of the site and is not to be construed as a certification to quality of title or location of title to the property.
Ownership of Plans and Documents
All field notes, field data, soil boring logs, reports, deeds and title reports, calculations, working drawings, estimates and other documents acquired or prepared by Surveyor as instruments of service shall remain the property of Surveyor.
Attorneys have advised us that these “instruments of service” rightfully belong to us and are ours to use in appropriate circumstances, such as future surveys of adjoining or nearby properties. That legal principle might be recognized in a litigated dispute, but the prudent step is for the surveyor to make it a matter of agreement in her signed contract with her client.
A more difficult question arises when a survey has been completed for a prospective purchaser of land. Perhaps that client intended to develop the property but wanted information on parcel area, topography, soil conditions, available public utilities and so on. The client had a purchase-and-sale agreement that enabled him to hire a surveyor to acquire the information. Let’s assume that the survey was accomplished under a contract containing the above clauses but the client then decided not to purchase the property after spending several thousand dollars on the surveyor’s fee. Assuming the client agreed to the contract clauses similar to those suggested here, we would suppose the surveyor is free to use the data acquired in his service under the contract.
Of course, the client may also claim proprietary rights to the information. In my opinion, it is ethically clear that a duplicate of the topographical plan and the soil report that had been delivered to the client should not be available for sale to another prospective purchaser of the property. But what about all the information−the instruments of service−in the surveyor’s files? Presumably, it would be easy enough to reconstruct the topo plan. The soil test results reside in notebooks in the surveyor’s files and are available for reformatting in a new formal report. Ethically, the surveyor should be able to use this information in advising a second client but without charging again for the fieldwork required to acquire the data. (Almost all codes of ethics enjoin against double charging or reselling of a service.)
Whether the surveyor is willing to take advantage of a contractual right in this example is also a question of business judgment. If the surveyor ever hopes to work again for the first client, he would be wise not to make the information available to the next client. A better way would be to advise client No. 2 that the information is available but has been paid for by client No. 1. Rather than requiring the surveyor to repeat the fieldwork, perhaps a deal between clients No. 1 and No. 2 could be worked out. Both clients should respect the surveyor for his good judgment in the matter.
The sharing of information between surveyors raises other issues. In the best of circumstances, surveyors recognize their positions in the community as peer relationships. They seek each other’s advice and support through membership in local surveyor associations. So the sharing of information between competing surveyors may be both useful and professionally commendable. But when a surveyor opens his files to others in an effort to be helpful, he may be creating liability exposure for himself.
An attorney once advised that our files, computations and working drawings contain a record of our decision-making process, in which are hidden all our attempts at resolution, our trial-and-error approaches and, perhaps, even calculations found later to be in error. That attorney advised against opening our files to anyone--clients or other surveyors.
Our accumulated site-specific knowledge belongs to us as professional practitioners. It should be protected both through our contracting practices and our file management procedures.
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients.