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"The County recognized that parcel mapping data is a public record, but was supported by the Court in refusing to provide the data in its normal database format," says Bruce Joffe, GIS consultant and founder of the Open Data Consortium project, who participated in a similar, but successful, suit against Santa Clara County brought by the California First Amendment Coalition (CFAC) in 2007. "Using the PRA software exemption to block distribution of the County's database is as if the Judge ruled that a Microsoft Word file was software because it was part of a word processing system."
Sierra Club attorney Theresa Labriola, of the firm Venskus & Associates, indicated that the Club was likely to appeal. "CFAC won a virtually identical case in the Court of Appeal. We believe that the Santa Clara decision is binding precedent in this case. Orange County successfully argued that the software exception wasn't addressed by the Santa Clara appeals court, but we think it was. We'll appeal, we will win, and we'll put this argument to rest once and for all."
Although the PRA says the public has a right to government information in the same electronic format that the government uses, the Court supported the County's claim for the software exemption. The Sierra Club believes that the exemption for "computer mapping systems" in the law pertains only to software and not to the database that holds the County's data. The County convinced the Court that its "Landbase" database is a GIS database and that GIS databases are part of "computer mapping systems" as included in the PRA software exemption. Nowhere in the PRA text is "computer mapping system" actually defined. At the time the exemption was written (1988), "computer mapping system" typically meant a set of software modules used for producing map graphics; the phrase did not mean the underlying data and database.
According to a study undertaken by Joffe and his colleagues, 48 out of the 57 California counties that maintain their parcel map data in electronic form provide it to the public for the cost of reproduction, as required by the PRA. Of the non PRA-compliant counties, Orange County is by far the most egregious offender, asking $375,000 for its mapping data that includes approximately 640,000 parcels of land. The main reason Orange County refuses to provide its parcel mapping data to the public under the terms of the PRA may be that the County would lose revenue from data users that currently pay hefty fees for the data. Documents filed in the case show that Orange County has received an average of $183,530 in annual licensing revenue from its "O.C. Landbase" database over the last five years. "These high fees create two levels of access to public records," says Dean Wallraff, Vice Chair of the Sierra Club Angeles Chapter's Legal Committee. "Title companies, real-estate companies and large developers can buy this data, while non-profit environmental organizations cannot afford the cost. What's galling is that we've already paid for the Landbase through our taxes. The public owns this data. Why should we have to pay again for what is already ours?"
GIS Consultant Joffe states that the reason for the Public Records Act is to enable any citizen to oversee our government's activities. "Transparency leads to accountability, and transparency is only possible if the public has access to the same data, in the same format, that the County uses."
The Sierra Club needs parcel data to prepare maps for its conservation campaigns in Orange County. The Club is currently fighting to preserve open space from development at Banning Ranch, Coyote Hills, Orange Hills, and Hobo Aliso. Lore Pekrul, current Chair of the Sierra Club Angeles Chapter GIS Committee states, "we're at a disadvantage relative to the big developers when we prepare maps showing land being targeted for development in Orange County. They can afford parcel data, which lets them accurately depict the various land boundaries, and we can't afford it." Wallraff added, "If we have to use our limited funds to buy data rather than purchase open space, the Sierra Club will not be able to be as effective as our donors expect us to be."
In 2004 the California voters passed Prop. 59, which created a new civil right by adding language to the California Constitution stating that "The people have the right of access to information concerning the conduct of the people's business," and that statutes should be narrowly construed if they limit the rights of access. "The Court didn't follow the California Constitution," says Sierra Club Attorney Labriola. "The Constitution required it to interpret the PRA's definition of software narrowly, since the definition limits access to information. Both the California Attorney General, in his official 2005 opinion on the subject, and the Santa Clara trial court said that parcel map data wasn't software under the definition in the PRA. But this court opted for a broad interpretation of the definition so that it includes all GIS data."
According to Wallraff, the most troublesome thing about the Court's reasoning is that it could easily be expanded. He worries that "this rationale could be used to justify withholding all computer data from public scrutiny. Even though the PRA expressly provides that computer data consisting of public-record information must be disclosed, the software definition is an exception that could eat the rule. If this court can decide that GIS data is software, another court could decide that accounting data is software, or that word processing documents are software. We expect that the Court of Appeal will interpret the statute the same way we do: that 'software' means software, not data."