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Appeals Court Rejects Santa Clara County's Basemap Data Sale

February 10, 2009
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In a unanimous decision, the three-Justice panel of the California Court of Appeal affirmed the Santa Clara County Superior Court's decision requiring Santa Clara County to comply with public requests for a copy of its GIS parcel basemap, under the conditions of California's Public Records Act (PRA). The Court validated the California First Amendment Coalition's (CFAC) demand for the data at no more than the cost of duplication, and without restrictions of use. 

In its appeal of the trial court's decision, the County tried several arguments to justify its policy of selling GIS basemap data for over $150,000, and belatedly, for withholding the data with the claim that its parcel basemap was Protected Critical Infrastructure Information (PCII). The Appellate Court's decision states:

I. Federal homeland security provisions do not apply here. 
Both the Critical Infrastructure Information Act and the accompanying Department of Homeland Security regulations make a distinction between submitters of critical infrastructure information (to DHS) and recipients of PCII (from DHS). The federal prohibition on disclosure of PCII applies only to recipients of PCII.  Because the County did not receive PCII (it submitted its data to DHS in order to obtain PCII designation), the federal provisions do not apply.

II. The proffered California Public Records Act exemption does not apply. 
After independently weighing the competing interests in light of the trial court's factual findings, the public interest in disclosure outweighs the public interest in nondisclosure.

III. There is no statutory basis either for copyrighting the GIS basemap or for conditioning its release on a licensing agreement. 
This issue was a matter of first impression ("de novo") in California, for which the Court concluded that "end user restrictions are incompatible with the purposes and operation of the CPRA."

Peter Scheer, Executive Director of CFAC stated, "The Santa Clara decision has potentially far-reaching implications. ... It could also apply to virtually any government-created databases, at the local level and statewide, in California and in other states."

Bruce Joffe, organizer of the Open Data Consortium project and technical adviser to CFAC, said, "The Court of Appeal decision soundly refuted Santa Clara County's attempt to restrict public access to its parcel basemap under various mis-applied principles. In doing so, the Court has clarified public access principles that previously were undetermined." 

Item (I.) prevents county governments from using "homeland security" as a blanket cover for any or all of its GIS data that may have some market value. This clarification of the  Homeland Security Act's (6 U.S.C. § 133) application of the PCII designation is new ("de novo"). The Court pointed out a fundamental contradiction in the County's claim of PCII restriction to distributing its basemap data. If the GIS basemap in the County's hands was to be considered PCII, then the County could use its own data "only for purposes appropriate under the CII Act, including securing critical infrastructure or protected systems" since the federal law strictly restricts use of that data to the narrow purposes enumerated in the CII Act (6 C.F.R. § 29.3(b) (2007). Referring to the remarks of a private commentator, (Bagley, "Benchmarking, Critical Infrastructure Security, and the Regulatory War on Terror" (2006), the decision notes [the County] "cannot use DHS as a 'black hole' in which to hide information that would otherwise have come to light." 

Item (II.) confirms the public's interest in making county GIS data accessible. Citing case law (Connell v. Superior Court, supra, 56 Cal.App.4th at p. 616.), the Court noted, "If the records [that are] sought pertain to the conduct of the people's business, there is a public interest in disclosure. The weight of that interest is proportionate to the gravity of governmental tasks sought to be illuminated and the directness with which the disclosure will serve to illuminate." Some of CFAC's proffered examples of how access to the GIS basemap will contribute to understanding of government activities included "comparison of property tax assessments, issuance of permits, treatment of tax delinquent properties, equitable deployment of public services, issuance of zoning variances." These examples were well illustrated in the Amicus Brief co-signed by 77 GIS Professionals. 

Item (III.) limits county government from copyrighting its data, or from using licensing agreements to restrict use of its data by the public. The Court agreed with CFAC that "No reported California decision has ever concluded that a public agency may refuse to release copies of public records to protect its own purported copyright." Balancing "the interplay between copyright law and California's public records law," the Court affirmed that "unrestricted disclosure is required." Doing so serves the purpose of the statute, which is "increasing freedom of information by giving members of the public access to information in the possession of public agencies." "That policy would be undercut by permitting the County to place extra-statutory restrictions on the records that it must produce, through the use of end user agreements."

Is this issue over now? Well, maybe so, or maybe no. Santa Clara County has the right, until March 17, to petition the California Supreme Court to review the case.  

Will the County continue to fight against public record access to its GIS data?  The final sentence of the Court of Appeal decision states, "The costs of the writ proceeding in this court are awarded to real party in interest, CFAC." The unanimous decision of the Court of Appeals, on top of the decision of the Superior Court, on top of the Attorney General's written opinion, on top of common sense regarding the facts of the case, on top of the example of 41other California counties that provide their basemap data for $100 or free, all this would indicate that the County would lose in the Supreme Court as well. One wonders what could be motivating the County to continue this very expensive resistance to complying with the PRA.

Whether the County appeals again or not, the matter will be remanded back to the trial court to determine allowable costs that the County may charge for producing the GIS basemap. The County has argued that it requires "data compilation, extraction, or programming" time and expense to produce the GIS basemap, while CFAC says "since the County sends copies of the basemap to its paid subscribers on a regular basis, it does not appear that any additional programming would be necessary to fulfill CFAC's request for the data under the PRA."

The California First Amendment Coalition (www.cfac.org) is a nonprofit advocacy organization, located in San Rafael, CA, dedicated to free speech and open government. Its executive director, Peter Scheer, can be reached at: ps@cfac or 415-460-5060.

CFAC is represented in the Santa Clara litigation by attorney Rachel Matteo-Boehm and colleagues Roger Myers and Kyle Schriner with the San Francisco office of Holme Roberts & Owen. 

The Court's decision, in .pdf format, may be downloaded from  www.courtinfo.ca.gov/opinions/documents/H031658.PDF

This important issue, assuring public access to county GIS data, is being validated through the legal system thanks to the interest, talent, and dedication of many people:

Dennis Klein (Boundary Solutions, Inc.) brought the issue to the California Attorney General's attention 51 months ago.  (The AG's office confirmed that the CPRA applies to GIS basemap data 41 months ago.) 

Tom Newton (California Newspaper Publishers Association) alerted Peter Scheer (California First Amendment Coalition) about this issue, and

CFAC decided to carry the issue through this unfolding legal process. Rachel Matteo-Boehm (Holme Roberts & Owen, LLP) heads the legal team whose competent arguments convinced the Court of Appeal and the Superior Court. 

Many GIS professionals and several GIS Associations signed petitions, sent opinions to the Attorney General, co-signed the Amicus Brief, and offered ideas and support.  Thank you, thank you for responding to a public policy issue that directly affects our profession as well as benefits the general public. 

To contribute your support to the Open Data Consortium project, please contact Bruce Joffe at GIS.Consultants@joffes  or 510-238-9771.

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