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Summary:
The California First Amendment Coalition (CFAC) thought it had it made when the Superior Court ordered that the Santa Clara County must distribute its geodata under the California Public Records Act back in May, 2007. But the County appealed and the Court of Appeals agreed to consider the case. Bruce Joffe reports on the January 15 appeal hearing. A judgment is expected within 90 days.
Some background: The Superior Court ordered that the County must distribute its data according to the CPRA in May, 2007, but the Court of Appeals agreed to consider the County's appeal of the decision. With the appeal's arguments complete, the Court must issue its decision within 90 days.
Joffe shares the following personal recap of the Appeals Court hearing, covering the highlights but not all of the points argued.
At the California Court of Appeal (Sixth Appellate District)
January 15, 2009:
From their questions, the three-Justice panel appeared to be thoroughly familiar with the technical as well as the legal issues of the case. They allowed the County first, then CFAC, to make short presentations, but quickly interrupted them with questions that cut through to the heart of the matter.
Richard Nakame, Santa Clara County's Counsel, led with the assertion that the Department of Homeland Security (DHS) validated the entire basemap dataset as Protected Critical Infrastructure Information (PCII), thus prohibiting the County from public distribution of its GIS data.
The Justice asked Mr. Nakame what was DHS' validation process, noting that DHS didn't seek to limit the County's data distribution, but that the County had submitted its data voluntarily to DHS for PCII designation. The Justice asked if the DHS had made a "pre-emptive" designation. Mr. Nakame failed to mention that the PCII designation was "provisional" and that the basemap did not actually show any infrastructure. He told the Court that "Federal Regulations" (the PCII designation) restrict how the County can use and distribute its own data. Later in the proceedings, CFAC attorney Rachel Matteo-Boehm cited the specific text of the Homeland Security Act of 2002 [6 USC 133 (a) (c)] that indicates Congress' intent was to restrict the DHS from redistributing data sent to it by local governments and private utilities, but that does not restrict distribution acts of the submitting agency.
The Justice asked Mr. Nakame why the County was distributing its data to anyone who would pay for it ($158,000) if it believed the data to be sensitive infrastructure information. Mr. Nakame said the County's map was "an evolving project" and it took time for the County to become aware of the security concerns. The Justice observed that the County didn't apply for PCII designation until five years after 9/11. Mr. Nakame answered that DHS wasn't set up to process PCII designations for four years. The Justice also noted that the County didn't seek PCII designation until four months after CFAC sued for access to the County's data, and didn't stop selling its data until after that time.
The Justice asked why the County argued that it has copyright over its data; that didn't dovetail with the County's security argument. If the County thought it shouldn't distribute data for security reasons, then copyright is irrelevant. Copyright protects private creators of intellectual property who want to distribute it while retaining remuneration. "Does the County claim its workproduct is private property?" the Justice asked. Mr. Nakame answered that California state law does not prohibit the County from claiming copyright.
The Justice also noted that 25 other counties give their basemap data away without fee or restrictions and asked Mr. Nakame why Santa Clara County's basemap is so "top secret." Mr. Nakame launched into a technical description of "closed polygons" and "georeferenced position" but the Justice cut him off noting that security experts had asserted that the County's data was not "critical." GIS professionals know, or course, that all GIS basemap parcels are georeferenced, closed polygons.
CFAC's attorney, Rachel Matteo-Boehm, began her presentation by reminding the Court that the Critical Infrastructure Information law makes a distinction between the recipient of the data and the data provider. She noted that the Code of Federal Regulations (29 CFR section 29.8) makes it clear the law is not intended to exempt public agencies from the Public Records Act.
The Justice asked about the "catchall" clause (CPRA Section 6255) which allows withholding data if "in the facts of the particular case, the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record." He asked, "what is the public interest served by disclosing the County's basemap?" Instead of recounting all the benefits to the public from using GIS basemap data, as described in the GIS Amicus Brief, Ms. Matteo-Boehm reminded the Court of the Superior Court Judge's decision that it was the County that has to meet the burden of proof to show that the public interest is best served by not disclosing the data, and that the County had failed to do so.
Ms. Matteo-Boehm added that generalized, speculative concerns of harm are not sufficient to withhold data. She also recounted that the County didn't raise its security argument until well after CFAC has sued for Public Records Act access to the GIS basemap data.
The Justice then questioned Mr. Nakame again, saying that the Court is trying to see the County's good-faith reasoning for withholding its data, but it appears to be simply an excuse to sell its data for profit. Mr. Nakame launched into a technical discussion on the process and cost of making copies of the County's data, but was cut off when the Justice observed that he was 28 seconds over his allotted time.
