Last month California's Fourth Appellate District Court of Appeal decided the Orange County parcel database is covered by the software exclusion in the California Public Records Act. That means, among other things, the County can sell the data for more than the cost of reproduction. Bruce Joffe offers his opinion on this latest turn in a lawsuit brought by the Sierra Club in 2007. All Points Blog reported on the decision on June 2.
Among the 57 California counties that have GIS-formatted parcel basemaps, 49 counties provide their GIS parcel basemap data for free, or the cost of duplication, as required by the California Public Record Act (§6250-6259 of the Government Code). The other eight counties have been selling their data, with Orange County charging the highest price by far at $375,000 for their 640,000 parcel database.
In 2007, the Sierra Club made a Public Records Act request to Orange County for their data, and after several requests through several protocols were all met with refusals, they initiated a PRA lawsuit against the county in April, 2009. In August of 2010, the Superior Court supported Orange County's argument that the PRA exempts GIS databases from public record disclosure under the "software exemption" of §6254.9, which states that "computer software developed by a state or local agency is not itself a pubic record" and adds, " 'computer software' includes computer mapping systems, computer programs, and computer graphics systems."
You might think, as did the Sierra Club in appealing that decision last August, that "computer mapping systems" software is distinct from the GIS database that the software operates upon. But California's Fourth Appellate District Court of Appeal decided on May 31, 2011, that this database is covered by the software exclusion. While Orange County stipulated that their "OC Landbase" GIS database does not contain software, they argued that GIS is a "computer mapping system," and that the definition of GIS includes software and data.
The Appellate Court recognized that "computer mapping systems" was never defined in the PRA software exclusion, and so it reviewed the legislative history to determine what the legislature's intent may have been. Early versions of Assembly Bill 3265 (that resulted in §6254.9) were opposed by the Department of Finance until the term "proprietary information" was replaced with "computer software" and "computer readable data bases" was replaced with "computer mapping systems."
Nevertheless, the Court observed that the "Fiscal Analysis" section of the Finance Department's report stated, "The potential revenue generated by the sale of computer programs, graphics, and information data bases could be substantial ..." From this, and from a memorandum by the City of San Jose, outlining the high cost to develop its Automated Mapping System database that initiated the proposed legislation, the Court surmised that the intent of the "software" exclusion was to exempt computer mapping system databases from the requirement they be sold at no more than the cost of duplication.
The complete case summary is available at http://appellatecases.courtinfo.ca.gov/search/case/disposition.cfm?dist=43&doc_id=1953739
The Sierra Club has until July 11 to file an appeal at the California Supreme Court. Because this decision conflicts with the Sixth Appellate Court of Appeal's decision in the CFAC vs Santa Clara County case (2009), a Supreme Court decision may be necessary to resolve these two case precedents.
Many GIS professionals, users of public agency GIS databases, and advocates for transparency in government through accessible data records are concerned that this decision, if it stands, would enable many more counties to charge restrictive prices for their GIS databases.
In my opinion, the Court underestimated two important arguments:
(1) that 49 other California counties have developed and are maintaining similarly expensive GIS databases without selling their data; "poor fiscal management should not be an exemption for access to public records."
(2) that San Jose, Orange County, and every other government agency, decided to expend the cost of building a GIS database because of the benefits that GIS would provide them in fulfilling their mandated tasks; "these benefits are return enough on their investment and do not justify additional revenue from data sales." Indeed, Orange County's staff admits that they couldn't do their jobs without their OC Landbase.
However, the Court saw its role as discerning the intent of the Legislature in passing a poorly defined law, not as the arbiter of good or poor public policy. As its decision concluded, "whether the increasing use of GIS data in our society requires reconsideration of section 6254.9's exclusion from disclosure is a matter of public policy for the Legislature to consider."