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

Although this was posted October 22, 2007, I thought the following posting from the Cairns Blog case might be of interest:

Feeding Bureaucracy While Starving Democracy: Government Abuse of Copyright

 

At the end of September, the federal court in the Eastern District of New York handed down a ruling in the case of City of New York v. Geodata Plus, LLC.  The judge’s order granting in part the City’s motion for summary judgment upheld the City’s assertion of copyright in digitized tax maps.  In so doing the ruling allows the City to use that copyright to restrict availability of politically important information paid for by taxpayer dollars.  This information should, instead, be deemed to be information in the public domain.  Alternatively, if the City objected to GeoData’s attempt to earn money based on re-use of the City’s tax maps, then it should have released the digitized maps under an open license mandating that the maps be freely re-distributable.  Instead the City wasted public resources on filing suit in federal court.  Releasing under an open license would not preclude the City’s Department of City Planning (DCP) from charging for the digitized files and it would prevent others from monopolizing access to the data.  The City bureaucracy is using copyright law to restrict free speech and limit democracy by making public information less available.

 

In 1995, the DCP developed vectorized images of tax block and lot information.  It sells these digital files for $250 per borough.  To create the maps the DCP programmers took publicly available maps, digitized them and then “traced” the outlines of each of the tax lots from the tax maps onto the geographic maps.  GeoData sells a commercial product that includes vectorized tax lot and block maps.  GeoData asserted that the City’s map were not copyrightable and, if they were, then, in the alternative, they argued that they had not copied but had developed their maps independently.

 

Whether or not GeoData or its Kyrgyzstanian programmers copied is not what’s at stake here.  The focus on copying is a red herring that distracts from the central question of this case: Should a government be allowed to restrict access to public information paid for by tax payers dollars and of vital interest to the citizens that the government serves?

 

Source: Cairns Blog, October 22, 2007

 

For full text of this blog article, visit: http://cairns.typepad.com/blog/2007/10/feeding-bureauc.html

The Wisconsin Supreme Court rules on the WireData Court Case.

From the ruling:

1. WireData did not properly commence the mandamus actions against the municipalities under the state open records law, because WireData’s requests were not denied.

2. WireDatas initial requests were not insufficient as a matter of law as to time and subject matter.

3. A municipalities’ independent contractor assessor is not an authority under open records therefore not a proper recipient of an open records request.

4. A municipality may not avoid liability under open records by contracting with an independent contractor assessor who has custody of the sought after records.

5. The court of appeals was wrong in ruling that supplying data in a pdf format was insufficient

6. Because no actual fees were charged for the information the municipalities provide WireData in the pdf format, the municipalities did not violate the open records law. Hence, they are not liable for damages.

Link to the ruling:

http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=33183

Link to the prior Court of Appeals Decision:

http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=27629

Court: Towns satisfied Wisconsin open records law

 

By SCOTT BAUER

Associated Press

 

Article Last Updated: 06/25/2008 10:33:50 AM CDT

 

MADISON — Three municipalities did not break the state’s open records law when they refused to give a real estate listing service access to a computer database, the Wisconsin Supreme Court said today.

 

The decision is expected to have a wide-reaching impact on open records requests for computer databases. It overturns an appeals court decision that said government agencies must provide access to their databases when asked.

 

The Supreme Court said today that doing that would pose substantial risks.

 

WIREdata Corp. asked the city of Port Washington and the villages of Thiensville and Sussex in 2001 for access to their property assessment records in the same database format the information was kept by private contractors who collected the information.

 

 

For full text of the article, visit:

http://www.twincities.com/news/ci_9690214?source=rss

 

Source: Associated Press, as posted on TwinCities.com

For more information, visit the following post:

http://geodatapolicy.wordpress.com/2008/06/26/wi-supreme-court-decision-on-wiredata/

The following copyright case took place earlier this year. The plaintiff in the case agreed to cancel the hearing on the motion for a preliminary injunction, leaving Seneca’s web site – with its freely available maps – in place. But, it’s still noteworthy.

W. Virginia Assessor Fights Effort To Put Tax Maps Online

By Ryan Paul | Published: February 07, 2008

The official tax assessor of Kanawha County in West Virginia, Phyllis Gatson, has filed a lawsuit seeking an injunction to block Seneca Technologies from publishing tax maps for the entire state of West Virginia on the Internet. Citing a state law which prohibits individuals from copying and redistributing tax maps without the county tax assessor’s permission, one that also enables tax assessors to sell paper copies of the maps for approximately $8 each, Gatson asserts that Seneca’s actions constitute copyright infringement and have caused her to suffer financial damages.

Seneca, a document indexing and data management company, began its quest to obtain tax maps for all of West Virginia last year by sending a Freedom of Information Act (FOIA) request to the state tax department, which has digital copies of all of the tax maps for internal use. When the state declined to fulfill the FOIA request and insisted that Seneca pay $8 for each of the 20,936 TIF images (a total of $167,488), the company filed a lawsuit to force the agency to comply with its obligations under the FOIA. The Judge ruled in favor of Seneca, noting that the state law requiring payment applied only to paper maps and not digital copies. The tax department was forced to provide the entire collection of maps for a single payment of $20 to compensate it for the total reproduction costs.

After obtaining the maps, Seneca then made them available for free on the Internet through its own web site so that they could be accessed by the general public. Seneca plans to use its document indexing technologies to create an elaborate search system that makes it easy for users to correlate information from the tax maps with other data stored in Seneca’s databases. Gatson, an individual county tax assessor, responded to Seneca’s plans by filing a lawsuit in an effort to win an injunction that would force Seneca to take down the TIF images. …

For full text of the article, visit: W. Virginia assessor fights effort to put tax maps online

Source: Ars Technica

Commentary on Court Case

Patry’s Copyright Blog provides an interesting commentary on this case on Feburary 6, 2008.

Section 105 of title 17 USC prohibits copyright in works of the United States government, but does not bar works of state and local governments. Under case law, state court decisions and statutes have been held not protectible, but the rationales for these decisions do not apply to other material, like maps. Of course, states may decide as a matter of state law that given material may not be subject to copyright (a decision akin to abandonment), and states may pass FOIA or similar laws that severely circumscribe the exercise of copyright. But the question of originality of state authored material is governed by federal copyright law. …

For full text of this article, visit: State and Local Tax Assessment Maps

Further reading

First Amendment Protects West Virginia Web Site Operator Who Posted Public Records (Public Citizen)

West Virginia Tax Official Tries To Stop Web site From Posting Public Tax Maps (TechDirt)

West Virginia Officials Try o Yank Tax Maps Off Website? (The FOI Advocate Blog, February 23, 2008)

Additional Resources

Tax Map Advisory Committee, W.V. GIS Technical Center – Documents related to the Seneca case as well as links to resources for creating new tax map rules

Harlan Onsrud – Commentary on Open Access and Cost Recovery

http://www.spatial.maine.edu/~onsrud/GISlaw.htm

http://www.spatial.maine.edu/~onsrud/pubs/In_Support_OA.htm

http://www.spatial.maine.edu/~onsrud/pubs/Cost_Recovery_Worthwhile.html

http://www.spatial.maine.edu/~onsrud/pubs/GIS_Dissemination/GIS_Diss_Policy.html

http://www.spatial.maine.edu/~onsrud/Courses/SIE525/Slides/7SlidesFOIA06.pdf
http://www.spatial.maine.edu/~onsrud/Courses/SIE525/Slides/8SlidesLocalGovDtAccss06.pdf

Illinois Attorney General’s Office

http://www.illinoisattorneygeneral.gov/opinions/2005/05-002.pdf

http://www.ilgisa.org/GISNotes/Winter2006.pdf

NCGIA Core Cirriculum

http://www.ncgia.ucsb.edu/education/curricula/giscc/units/u190/u190_f.html

Massachusetts Legal Issues for Tax Maps

http://www.umass.edu/tei/ogia/parcelguide/Sect11.html

New York Data Coordination

http://www.nysgis.state.ny.us/coordinationprogram/reports/model/index.cfm

http://www.nysl.nysed.gov/edocs/realprop/gisplan/coordn.htm

10 Ways to Support GIS Without Selling Data

http://www.opendataconsortium.org/documents/10Ways2SupportGIS-3.pdf