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.  

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 indicates that the County would lose in the Supreme Court as well.  The County decided not to continue appealing these decisions.

The case 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."

-- 30 --

The California First Amendment Coalition 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.org 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 of Appeal's decision, in .pdf format, may be downloaded (108 KB)

Read further description about the Appeals Court hearing here.

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. 

Download the Amicus Brief signed by 77 GIS Professionals and Associations (PDF, 6.1 MB).

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

May 18, 2007

Superior Court Confirms Public Records Law

Although the California Public Records Act (CPRA) requires state and local government records to be provided to anyone requesting them for no more than the cost of duplication, until recently, 21 of California's 58 counties sold their GIS digital parcel basemap data for significantly higher prices. In October 2005, the California Attorney General issued an official opinion stating that digital parcel data is subject to public inspection and copying under provisions of the CPRA (http://ag.ca.gov/opinions/yearly_index.php?year=2005, Look for 04-1105). Subsequently, eight counties changed their data distribution policy, and now offer their GIS basemap data for free or nominal cost.

However, 13 counties still maintain a high-cost data distribution policy, contending that GIS basemap data is exempt from the CPRA. They assert that the A.G.'s opinion does not have the force of law - only a Judicial judgment can confirm or deny their policy. Now, as of May 18, 2007, such a judgment has been rendered.
The California First Amendment Coalition (CFAC) took Santa Clara County to court after the county denied CFAC's request for the county's GIS basemap data at the cost of duplication and with no other restrictions on how it might be used or redistributed. Judge James P. Kleinberg of the California Superior Court for Santa Clara County reviewed the many arguments and rebuttals of the case over three months, and issued the Court's decision in favor of CFAC. Judge Kleinberg directed Santa Clara County to:
1. Provide CFAC with an electronic copy of the GIS basemap, and
2. Charge CFAC the direct cost for the copy provided.
The decision affirms the legislative intent stated in the CPRA (Government Code §6250) that "access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state."

" Affordable access to the GIS basemap means that the media and ordinary citizens will have a powerful tool for judging government performance in such areas as tax assessments, zoning variances, and equitable deployment of public services," said Rachel Matteo-Boehm, of the San Francisco office of Holme Roberts & Owen LLP (www.HRO.com), CFAC's lead counsel in the case. The decision ("CFAC vs Santa Clara County, No 1-06-CV-072630") recounts how analysis of the GIS basemap data, used in conjunction with other data, "could allow a property owner to question why, all else being equal, one particular parcel is assessed more than another."

The Court's decision rejected various claims made by the County that its basemap data should be exempted from the CPRA, for such reasons as the GIS basemap is software, the basemap is copyrighted, the basemap is a trade secret, the basemap is critical infrastructure information, and the public interest would be served by not making the basemap public. Citing the state constitution (Article I, Section 3, subdivisions (b)(1)-(2), "a statue shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access"), the Court concluded that the County failed to show a "clear overbalance" on the side of non-disclosure.

" This landmark decision vindicates our view that government agencies may not claim exclusive control over records that are created with tax dollars," said Peter Scheer, CFAC's Executive Director. CFAC is a nonprofit public interest organization dedicated to advancing free speech and open-government rights (www.CFAC.org). CFAC's members are newspapers and other news organizations.

" This is a validation for the citizens of Santa Clara county who are legally entitled to access their county's data, including the GIS basemap," said Bruce Joffe, organizer of the Open Data Consortium (www.OpenDataConsortium.org) and technical advisor to CFAC's legal team. "It is also a validation for the citizens of 12 other California counties that currently change more than the cost of duplication for their GIS basemap data." The Court has confirmed that CPRA applies to GIS data, enabling citizens to access their government's data and thereby hold their governments accountable. "This is a validation for all of California's citizens," Joffe added.

View the full text of the Court's decision (27 pages) (PDF, 1.4 MB)

Click here for detailed analysis of Santa Clara County Lawsuit. (PDF, 1.4 MB)


CONTACTS:

Peter Scheer
California First Amendment Coalition
Executive Director
office 415-460-5060
ps@cfac.org

Rachel Matteo-Boehm
Holme Roberts & Owen LLP
Counsel for CFAC in Santa Clara litigation
415-268-1996
rachel.matteo-boehm@hro.com

Bruce Joffe
GIS Consultants
510-238-9771
GIS.Consultants@joffes.com

Los Angeles County Changes its GIS Data Distribution Policy
On March 7, 2006, the L.A. County Board of Supervisors voted to approve a joint recommendation by the Director of Public Works and the Assessor: to distribute the Assessors digital parcel data at the cost of duplication and distribution.

Download the new policy. (.pdf 212 kb) 

 San Diego City and County Change their GIS Data Distribution Policy

On December 22, 2005, the SanGIS Board voted to discontinue licensing of SanGIS data and to place it in the public domain.  This is a significant development for the region and may have an impact on how other regions statewide respond to the Attorney General's October opinion regarding digital parcel data.  A significant factor in the SanGIS decision was the issue of funding, as approximately 1/3 of their budget comes from fees related to the sale of landbase data, imagery, and other related services.  SanGIS has requested the City and County of San Diego to include the lost revenue in their annual budget to SanGIS.  Contact Lisa Stapleton, SanGIS Director, at lstapleton@sangis.org with additional questions or suggestions.


Get Involved, now!

Currently, approximately 14 California counties continue to sell their parcel data at more than the direct cost of duplication.  If you would like to help remedy this situation, please eMail Bruce Joffe at GIS.Consultants@joffes.com, Subject: Interest in access to public digital parcel data.

For a little background on the OAG request
Download the Attorney General's letter requesting comments

You can also download some examples of some of the responses already received, from:

Boundary Solutions, Inc
CGIA
Bruce Joffe, GIS Consultant
American Title Company
Santa Clara County Assessor
Download a Rebuttal to Some CPRA Objections

Don't delay in contributing your ideas to the Attorney General's opinion.
See more at www.caag.state.ca.us/opinions opinion 04-1105

  Status Reports

Progress Report Summary, June, 2009 May 2009 CA Supreme Court denies County's request for depublication Apr 2009 Court of Appeal issues "remittur" returning case to Superior Court to determine fee for duplication Mar 2009 County requests depublication; County declines to appeal to California Supreme Court Feb 2009 Court of Appeal decides in favor of CFAC Upholds Superior Court order to County to provide GIS basemap data at cost of duplication; Rejects contention that County can copyright its data; Rejects contention that GIS basemap data protected by Critical Infrastructure Information Act        Link to Court of Appeal decision (108 kb) Jan 2009 Court of Appeal hearing June 2008 Amicus Briefs filed, including one by 77 GIS Professionals Apr 2008 Arguments filed in CA Court of Appeal Mar 2008 Court of Appeal decides to review the case June 2007 County appeals the decision May 2007 Judge Kleinberg decides, Superior Court directs Santa Clara County to: 1. Provide CFAC with an electronic copy of the GIS basemap, and 2. Charge CFAC the direct cost for the copy provided. April 2007 Judge Kleinberg requested additional information: - What public interests are served by release of this government data? - For what purposes can GIS basemap data be used? - What particular, private interests (to specific individuals or companies) are served by release of these data? - Why is this issue important? - Which individuals or companies in Santa Clara County have interests in these data? February 2007 Judge James P. Kleinberg heard arguments in Superior Court. October 2006 After the County refused to provide their GIS basemap data for the cost of duplication, with no restrictions on its use as specified by the California Public Records Act (PRA), CFAC filed suit to enforce the PRA. July 2006 The California First Amendment Coalition (CFAC) made a formal Public Records Act request to Santa Clara County for a copy of its GIS parcel basemap. Thank you for your help. Bruce Joffe Open Data Consortium c/o GIS Consultants 1212 Broadway, ste 610 Oakland, CA 94612 GIS.Consultants@joffes.com 510-238-9771 For more information about the lawsuit (article in BAAMA Journal), including a recap of both sides' arguments, please CLICK HERE (3.1 mb file). Progress Report Summary, October 2006 ODC's recent survey of California's 58 counties found that:          21 Provide Parcel Data at No Cost          21 Sell Parcel Data at the Cost of Reproduction          13 Sell Parcel Data for More Than the Cost of Reproduction          3 Are Not Releasing Parcel Data (claim it is not ready yet) (numbers revises April 2007) The ODC campaign is supporting five strategies to improve geodata access while also helping public agencies to afford the cost of maintaining their geospatial databases.  *    Support Enforcement of the Public Records Law *    Promote Use of Standard Data Distribution Policies & License Agreements to Harness the Private Sector for Distributing Data *   Recommend Procedures to Capture the Value of Using Geodata and Allocate a Portion to Geodata Maintenance *    Help to Formulate Legislation to Provide State Government Incentive Payments (perhaps in the form of a property transfer fee dedicated to geodata maintenance) *    Encourage Building Geodata Repositories for Emergency Response Read the details in the full Progress Report, and learn how your knowledge and energy can assist the objectives of accessible and affordable public geodata while supporting its ongoing update and improvement by public agencies.
CFAC Sues Santa Clara County for GIS Data
Links to Previous Progress Reports: April 2005 (PDF, 1.5 MB) November 2003 (MS Word, 40KB)

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  Articles

Detailed analysis of Santa Clara County Lawsuit (PDF, 1.38 MB)
ArcNews article on Geodata Transaction Requirements
Article describing Phase 2 of the ODC project
ArcNews announcement of Model Data Policy
ODC Progress Report Presentation - April 2005  (1.4 mb)
10 Ways to Support GIS Without Selling Data: Article - October 2003
10 Ways to Support GIS Without Selling Data: Presentation - October 2003  (1.2 mb)
How the ODC project Can Help You - March 2003
Geospatial Solutions - January 2003
Directions Magazine - August 2002
The GIS Data Sales Dilemma - 1998

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  Sponsor Web Links

Web Links

CA Public Records Act § 6250
Listing of State Public Access Records Law
California 1st Amendment Coalition
Data Licensing Study by NRC
Data Cooperatives Lessons from Practice
Cornell Law School Legal Information Institute's link to most state and federal statutes
Bakersfield On-line Map Services
California Geographic Information Metadata Catalog
Canadian Data Sales Site
The Center for Democracy and Technology
The Center for Technology in Government
Digital Map Products
ESRI Geography Network
GIS Planning Web Sites
OR Metro Data Sales Site
Registry of On-line City Data NC
Richmond VA - Selling GIS Internally

Open Data Consortium progress report October, 2006

Back in March, 2006, 26 people co-signed a letter to each of California's counties asking them to state their policy on distributing their digital parcel data (GIS basemap).  Thanks to their collaboration, our campaign to assure that these data - created and used by government agencies - be made available according to the California Public Records Act (CPRA), has made significant progress. 

31 of California's 58 counties responded to our survey.  Our current tally of the counties' data distribution policies indicates:

         14 Provide Parcel Data at No Cost

         22 Sell Parcel Data at the Cost of Reproduction

         13 Sell Parcel Data for More Than the Cost of Reproduction

         9 Are Not Releasing Parcel Data (claim it is not ready yet)

More importantly, nine counties have changed their data distribution policy this year, since the Attorney General's opinion stated that digital parcel data was subject to the CPRA.  Those counties include Contra Costa, Humbolt, Los Angeles, San Bernadino, San Diego, San Joaquin, Santa Barbara, Santa Cruz, and Shasta, with three more in process. 

The Open Data Consortium campaign continues working to improve public access to our public agencies' geospatial data because such access is necessary to our democracy: it helps keep our government's actions accountable to the people.  The ODC campaign is supporting five strategies to improve geodata access while also helping public agencies to afford the cost of maintaining their geospatial databases. 

*    Support Enforcement of the Public Records Law

*    Promote Use of Standard Data Distribution Policies & License Agreements to Harness the Private Sector for Distributing Data

*   Recommend Procedures to Capture the Value of Using Geodata and Allocate a Portion to Geodata Maintenance

*    Help to Formulate Legislation to Provide State Government Incentive Payments (perhaps in the form of a property transfer fee dedicated to geodata maintenance)

*    Encourage Building Geodata Repositories for Emergency Response

Your support, suggestions, and encouragement really have helped this campaign.  One of our ODC colleagues informed the California First Amendment Coalition (CFAC) of the campaign.  They decided that public access to geodata was important enough to exercise their right to request Santa Clara County to provide their GIS basemap for the cost of duplication, as the Public Records Act requires.  The county refused, asserting that the PRA does not apply (the Attorney General's opinion being only advisory).  CFAC has insisted on preserving the public's right to this data by filing a law suit to enforce compliance according to the law.  (CFAC's press release is included in the News/Links section of the ODC web site, as well as the text of the court lawsuit filing.)

Santa Clara County's two principle arguments for charging way more than the cost of duplication for its GIS basemap are that

1)  They have proprietary rights under copyright protection, and

2)  The GIS basemap is software (software is excluded from the CPRA requirement)

CFAC's principle arguments are that

1)   GIS basemap data is subject to the CPRA requirements for public access; this assertion was supported by the California Attorney General's office opinion (04-1105) last year.

2)   Government agencies can not claim copyright protection for public records, lest all government records be so protected and public access to government information, and therefore public scrutiny of government actions, would be terminated.

Obviously, the outcome of this action will significantly change the disposition of other counties' data policies in California, and probably, other government agencies nationally.  Your valuable assistance is requested now.  Please send me information, or references to information, that addresses any of the following issues. 

*    Descriptions or references to similar public record legal challenges, particularly concerning a public agency's claim to copyright protections. 

*     Descriptions or citations that explain the difference between software and geodata (!), yes, it is obvious to us, but how to convince a non-technical judge?

*    Documentation describing how citizens or groups have used public geospatial data to monitor and understand specific public agency decisions (for example, land use decisions, zoning variances, property assessments, police service deployments, social service deployments, etc.)

*    Any other suggestions, references, or information you think will be helpful in securing public access to public geodata records.

I hope this progress report will stimulate your thinking about ways you might assist the campaign.  Here are some specific suggestions:

*    Please let other people who may be helpful know about the Open Data Consortium campaign. 

*    Please send me your ideas and suggestions regarding the five strategies outlined above.

and, of course,

*       Please let me know about prospects for your material, financial, and labor support.

Thank you.

Keep in contact.

Bruce Joffe

ODC Organizer

510-238-9771

GIS.Consultants@joffes.com

www.OpenDataConsortium.org

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info@opendataconsortium.org