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
I. Federal homeland security provisions do not
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.
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
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."
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."
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.
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."
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@cfacor 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.
Court's decision, in .pdf format, may be downloaded from www.courtinfo.ca.gov/opinions/documents/H031658.PDF
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
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
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 atGIS.Consultants@joffes
Appeals Court Rejects Santa Clara County's Basemap Data Sale
February 10, 2009