[Talk-us] Fwd: Court of Appeal Rejects Santa Clara County's Basemap Data Sale

Hurricane McEwen hurricane at cloudmade.com
Fri Feb 13 00:05:34 GMT 2009

> All,
> 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  
> Sale
> 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: ps at 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'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  
> 510-238-9771.

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