GeoData Policy

September 16, 2009

Bruce Joffee forwarded the following:

After a three year legal battle, Santa Clara County provided a copy of its GIS parcel basemap data to the California First Amendment Coalition (CFAC) in compliance with California’s Public Record Act (PRA). Decisions from both the California Superior Court and the California Court of Appeal affirmed that public agencies must provide their geodata in accordance with the PRA (California Government Codes §6250-6259). Generally, agencies can not charge a requestor of their geodata more than the direct cost of duplication, and they can not restrict how a requestor can use or redistribute the data. Santa Clara County had been selling its geodata for $ 158,000; the cost CFAC finally paid was $ 3.10 per disk, plus shipping. In addition to providing its geodata to the public, the PRA requires the County to pay CFAC’s attorneys fees and costs incurred to assert its legal right to the data.

For background information, visit:

http://news.gislounge.com/2009/02/court-of-appeal-rejects-santa-clara-countys-basemap-data-sale/

 http://www.opendataconsortium.org

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.

Source: California First Amendment Coalition, February 5, 2009

One more step was taken toward the judicial resolution of the dispute between advocates for access to government GIS basemap data and Santa Clara County, which contends it has the right to withhold government geodata from the public or sell it at a high price. On January 15, 2009, the California Court of Appeal (Sixth Appellate District) heard oral arguments from Santa Clara County, the “petitioner” appealing the California Superior Court’s decision in favor of the California First Amendment Coalition’s (CFAC) demand for the County’s data. The Appeals Court also heard arguments by CFAC, the “real party of interest,” that the California Public Records Act (CPRA) requires unfettered distribution of the County’s data.

Ten months after the Superior Court’s order that the County must distribute its data according to the CPRA (May, 2007), the Court of Appeals agreed to consider the County’s appeal of the decision. And ten months after that, the appeal was heard in Court. The Court of Appeal must now issue its decision within 90 days.

Source: Bruce Joffee, January 27, 2009

Prior blog posting on Santa Clara: http://geodatapolicy.wordpress.com/2008/05/25/are-government-parcel-gis-data-subject-to-open-records-law/

As I mentioned in yesterday’s post, the Wisconsin Land Information Association’s regional meeting on June 5th in Wausau, WI will focus on data policy issues, including public access to government geodata.  One of the invited speakers, Bruce Joffe of GIS Consultants, will review last year’s State of California Superior Court’s decision California First Amendment Coalition v. Santa Clara County, which directed the County to provide its parcel basemap data for the cost of duplication, as required by the California Public Records Act. Prior to this suit, Santa Clara County charged over $100,000 for its public data. This case caused a ripple effect, impacting county geodata policy throughout California.  Bruce also will discuss the subsequent case in California’s 6th Appeallate Court of Appeals, which raised more questions, including are GIS basemap data  protected under the Critical Infrastructure Information Act of 2002?

The California First Amendment Coalition summarized the original case as follows:

In a lawsuit filed by the California First Amendment Coalition (CFAC), the Superior Court for Santa Clara County affirmed that the basemap, which is the foundation for the county’s Geographic Information System, or GIS, is a public record to which the county can no longer limit access to just a small number of  purchasers willing to pay tens of thousands of dollars in fees. (The case is CFAC v. Santa Clara County, No. 1-06-CV-072630.)

GIS technology provides a 3-D display, on maps, of information in a relational database. In effect, it allows a visual depiction, with precise locations, of the results of statistical analyses. Think Google Earth but with a local focus and specialized data. Used together with other publicly available data, the basemap allows citizens to monitor their local government on matters ranging from property tax assessments to zoning variances to street repairs.

The basemap will also enable journalists to do reporting that would not otherwise be possible. For example, reporters and bloggers could write stories that assess whether poor neighborhoods  are being shortchanged for road repairs. Data on crime statistics, census information, political party affiliations, campaign contributions, environmental hazards and school test score results could be analyzed to spot trends and to test the validity of government policy assumptions and prescriptions. …

In a 27-page decision, Superior Court Judge James P. Kleinberg rejected the county’s arguments that it could withhold the GIS basemap files because of their claimed status as computer software, and because the files allegedly contain “trade secrets” protected from disclosure under state and federal law. The court concluded the basemap consisted of data, not software. And it found that the county, by selling the basemap to private entities, had waived any trade secret protection to which the records otherwise might be entitled. …

The court found that federal copyright protection did not permit the county to deny a valid request under California’s Public Records Act. The court also turned aside the county’s attempt to avoid releasing the records by getting them designated  “Critical Infrastructure Information” (CII) by the federal Department of Homeland Security. The court noted that this designation was sought only after CFAC filed suit, and despite the county’s past sales of the GIS basemap to 15 purchasers, five of them private companies.

The court said that, while some of the data in the basemap–relating to the location of easements for pipelines carrying water from the Hetch Hetchy reservoir–might possibly qualify for the CII designation, the county had not met its burden of withholding the entire basemap on that basis. CFAC, while expressing doubt about the sensitivity of the information about the Hetch-Hetchy water easements, said in its briefs that it would be willing to accept the basemap with the pipeline information stripped out, if necessary.

Only 13 of California’s 58 counties currently limit access to their GIS by charging substantially more than the cost of reproduction for access. Of these, Santa Clara’s fees are the highest–over $100,000 for purchase of the full basemap. Orange County observes a similar policy. Both Los Angeles and San Diego Counties recently lifted restriction and use fees for access to their GIS basemaps. … 

For the full text, visit: http://www.cfac.org/content/litigation/santaclara.php

Source: CFAC, May 22, 2008.

To date, seventy-eight GIS professionals and GIS organizations, such as the University Consortium for Geographic Information Science (USGIS), have endorsed Bruce Joffe’s Amicus Brief, which will be released next week.

The complete text of the original court case: http://www.cfac.org/content/cfac_v_santaclara.PDF
The appeals court case brief: http://www.cfac.org/content/litigation/main_brief_appeal_SantaClara.pdf

For more information and comments on this topic, visit the following links:

• Assuring Public Access to Geospatial Data  (Joffe, Open Data Consortium)
• CFAC Protests New Legislation Curbing Access to Government Mapping Data (CFAC, March 6, 2008)
• Assembly Member Jose Solorio’s AB1978 Threatens Public Access to Government Geodata (Joffe, GISCafe.com, March 3, 2008) – Note: AB 1978 died in committee.
• Open Data and Cost Recovery (Curious.Judith Blog, September 30, 2007)
• Re-Use of Public Sector Information in the US (Domenico, June 5, 2007)
• Putting Security on the Map: California Map Rekindles Debate  About Public Access To Government Geospatial Data (Moore, FCW.Com, May 7, 2007)
• The Quater Million Dollar Shapefile (The OpenJump Blog, December 20, 2006)
• Group Sues Santa Clara County, CA for Reasonably Priced GIS Data (All Points Blog, Directions Magazine, October 12, 2006)

The Wisconsin Land Information Association (WLIA) will be holding their spring regional meeting, Democratizing the Multi-Purpose Land Information System: Impediments and Opportunities, on June 5-6th in Wausau, WI. Several distinguished speakers have been invited, including: Will Craig  - National Land Parcel Data initiative; Bruce Joffe - Santa Clara County Geodata Access Lawsuit; Earl Epstein - Democratization of land information systems; and, Ben Neimann - National Land Parcel Data in the context of Wisconsin’s land records modernization experience. In addition, panel discussions, which promise to be lively, will address issues concerning Open Records Law, privacy, cost recovery, and funding as they relate to digital land records and land records modernization. Highlights on June 5th include:

National Land Parcel Data: A Vision for the Future
William Craig, University of Minnesota. This presentation will describe the nine recommendations of the 2007 report National Land Parcel Data: A Vision for the Future and present an advocacy agenda in support of nation-wide parcel data.

WLIA Parcel Task Force Progress Report
Doug Avoles, Vernon County and Bill Cozzens, Waukesha County. Doug and Bill will describe on-going efforts and information compiled over the past year by the Parcel Task Force.

Democratization of Land Information Systems
Dr. Earl Epstein, Ohio State University. A democratic land information system in a community is one that operates efficiently, effectively, and equitably. This system and its processes support the plans and management of land and its resources that are made by or impact the community. Technical developments over the past three decades have dramatically improved the efficiency and, to some degree, the effectiveness of these systems. However, the equity and lagging effectiveness aspects – the social science aspects of the system – require further, significant development. This presentation focuses on the social purposes of land information systems, venues and processes for land use planning and management, access-to-data principles, and economic or business aspects. Mechanisms and processes that enhance the attainment of a democratic land information system are made.

National Land Parcel Data: A Vision for the Future – Did Wisconsin’s Experience Matter? Professor Emeritus Ben Niemann, University of Wisconsin – Madison. The Wisconsin Land Records Modernization experience is well documented, but did it matter? Ben Niemann critiques the National Land Parcel Data: A Vision for the Future and shares a case study that details ongoing impediments to land records modernization and access in Wisconsin’s Northwoods.

Santa Clara County Lawsuit: Implications to Public Geodata
Bruce Joffe, Principal, GIS Consultants – Oakland, California Last year, the California First Amendment Coalition won a lawsuit against Santa Clara County, with the court ordering the County to provide its parcel basemap data for the cost of duplication, as required by the California Public Records Act. Or did they? Appeals have raised questions. This interactive session updates the issues and seeks your opinions.

Interactive Panel Discussion: Impediments to and Opportunities for Public Data Access Panelists: William J. Craig, University of Minnesota; Dr. Earl Epstein, Ohio State University; Bruce Joffe, Principal, GIS Consultants; Ben Niemann, University of Wisconsin – Madison; Bill Cozzens, Waukesha Count; and Doug Avoles, Vernon County.  Come equipped with your hard hitting questions. This expert panel will address issues concerning Open Records Law, privacy, cost recovery, and funding as they relate to digital land records and land records modernization. In addition, they will share recommendations for overcoming the impediments to public data access and emphasize the opportunities for Open GIS.

The full agenda registraiton information: http://www.wlia.org/resources/wliaspring2008regionalwausauagenda1.pdf