[Talk-us] Fwd: Court of Appeal Rejects Santa Clara County's Basemap Data Sale
hurricane at cloudmade.com
Fri Feb 13 00:05:34 GMT 2009
> Here is the latest in the Santa Clara County, CA parcel data case.
> Thought folks on the list might find it interesting.
> From: Bruce Joffe [mailto:GIS.Consultants at joffes.com]
> Sent: Sunday, February 08, 2009 12:54 AM
> To: Bruce_Joffe at hotmail.com
> Subject: Court of Appeal Rejects Santa Clara County's Basemap Data
> 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
> 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
> 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
> 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: ps at cfac.org or
> 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 GIS.Consultants at joffes.com or
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