After the California First Amendment Coalition won its public records act (PRA) lawsuit against Santa Clara County in April 2009, the Sierra Club filed a similar suit against Orange County. The Sierra Club needed Orange County's parcel basemap in the GIS-compatible database format in order to discover and analyze strategic land purchase opportunities for its wildlands conservation campaign. Sierra Club couldn't afford to pay Orange County the $475,000 it was charging, nor did they think that the County had the right to charge more than the cost of duplication as prescribed under the California Public Records Act (PRA).
Orange County defended its data sales policy with the so-called "software
exemption" of the PRA, which says government agencies do not have to
provide software for the cost of duplication as they do for the data that they
use to make public decisions. In section 6254.9 of the PRA, software was
stated to "include computer mapping systems, computer programs and
computer graphics systems." None of these terms were defined.
The software exemption was attempted by Santa Clara
County, but the Superior Court ruled
against it; Orange
County's lawyers were
more successful in their trial. Sierra Club appealed the case, but the 4th
District Court of Appeal affirmed the decision in support of Orange County.
The County's logic was that GIS includes software and data (citing ESRI's
definition that says "GIS is a collection of software and data");
that the County's Landbase is a GIS; that GIS is a type of Computer Mapping
System; that CMS is excluded by §6254.9; therefore, the County's GIS Landbase
data is excluded. The Sierra Club's rebuttals – that "Computer
Mapping System" means a system of software modules, which does not include
data; that GIS-formatted data is necessary for the public to analyze the
government's decisions using its GIS database; that "includes" means
an illustrative example, not an expansion of the definition of software; and
that the California Legislature did not intend to exclude data when it passed
the software exemption – were unsuccessful.
Sierra Club's final appeal has been made to the California Supreme Court.
First, Sierra Club had to request that the Supreme Court hear the case.
The fact that two County's public records lawsuits for the same kind of data
resulted in opposite opinions was among the reasons sited for hearing the
case. The GIS community added their technical opinion in an amicus
curiae (friend of the court) brief that was signed by 11 GIS organizations
and 72 individuals. On Sep. 14, the Court agreed to hear the case, and on
Nov. 14, 2011, the Sierra Club filed its brief. Orange County's
rebuttal brief is scheduled for the middle of December. It is likely that
the GIS Community will be asked to file another amicus curiae brief to
help the Court understand that GIS-formatted data are not software, and that CMS
software does not include GIS data.
The GIS Community's amicus brief is scheduled for submittal in early
February. GIS professionals who may be willing to co-sign a GIS amicus
brief can contact Bruce Joffe (founder of the Open Data Consortium project)
In related news, the National States Geographic Information Council (NSGIC)
recently issued a four page recommendation of best practices for data
distribution policy of government agencies. This guideline document
articulates NSGIC's core principle that "Access to public records is an
essential component of our democracy that keeps citizens informed and our
government accountable. These records include geospatial data produced or
maintained using taxpayer resources." It concludes with the recommendation
that, "calls on government administrators, geospatial professionals and
concerned citizens to further advance the use of important geospatial data
assets and to ensure that they remain freely accessible”. You can
download NSGIC's recommendations at:
Sierra Club and Orange County's Court-Battle Over GIS Database
December 14, 2011