Opening Up Santa Clara County Geodata: Highlights of Appeal Hearing
Editor's Note: Bruce Joffe of the Open Data
Consortium has been keeping the geospatial community up-to-date on
efforts to keep data open. Another milestone was reached on January 15,
when 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. That
is, the County did not want to share its 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.
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
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
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
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.
Published Friday, January 30th, 2009
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