---------- Forwarded message ----------
From: Bruce Joffe <[email protected]>
Date: Sat, Feb 7, 2009 at 11:54 PM
Subject: Court of Appeal Rejects Santa Clara County's Basemap Data Sale
To: [email protected]
*Appeals Court Rejects Santa Clara County's Basemap Data Sale
*February 5, 2009
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 41 other 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: [email protected] 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
http://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 [email protected] or 510-238-9771.
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