After the California First Amendment Coalition won its public records act (PRA) lawsuit against Santa Clara County, in April, 2009, the Sierra Club filed a similar suit against Orange County. The Sierra Club needed Orange County's parcel basemap in the GIS-compatible database format in order to discover and analyze strategic land purchase opportunities for its wildlands conservation campaign. Sierra Club couldn't afford to pay Orange County the price it was charging, $475,000, nor did they think that the County had the right to charge more than the cost of duplication as prescribed under the California Public Records Act.
Orange County defended its data sales policy with the so-called "software exemption" of the PRA, which says government agencies do not have to provide software for the cost of duplication as they do for the data that they use to make public decisions. In section 6254.9 of the PRA, software was stated to "include computer mapping systems, computer programs and computer graphics systems." None of these terms were defined.
The software exemption was attempted by Santa Clara County, but the Superior Court ruled against it; Orange County's lawyers were more successful in their Superior Court trial. Sierra Club appealed the case, but the 4th District Court of Appeal affirmed the decision in support of Orange County. The County's logic was that GIS includes software and data (citing Esri's definition that says "GIS is a collection of software and data"); that the County's Landbase is a GIS; that GIS is a type of Computer Mapping System; that CMS is excluded by §6254.9; therefore, the County's GIS Landbase data is excluded. The Sierra Club's rebuttals -- that "Computer Mapping System" means a system of software modules, which does not include data; that GIS-formatted data is necessary for the public to analyze the government's decisions using its GIS database; that "includes" means an illustrative example, not an expansion of the definition of software; and that the California Legislature did not intend to exclude data when it passed the software exemption -- were unsuccessful.
Sierra Club's final appeal has been made to the California Supreme Court. First, Sierra Club had to request that the Supreme Court hear the case. The fact that two County's public records lawsuits for the same kind of data resulted in opposite opinions was among the reasons sited for hearing the case. The GIS community added their technical opinion in an amicus curiae (friend of the court) brief that was signed by 11 GIS organizations and 72 individuals. On September 14, the Court agreed to hear the case, and on November 14, 2011, the Sierra Club filed its brief. Orange County's rebuttal brief is scheduled for the middle of December. It is likely that the GIS Community will be asked to file another amicus curiae brief to help the Court understand that GIS-formatted data are not software, and that Computer Mapping System software does not include GIS data.
In related news, the National States Geographic Information Council (NSGIC) recently issued a four-page recommendation of best practices for data distribution policy of government agencies. This guideline document articulates NSGIC's core principle that "Access to public records is an essential component of our democracy that keeps citizens in-formed and our government accountable. These records include geospatial data produced or maintained using taxpayer resources." It concludes with the recommendation that, "calls on government administrators, geospatial professionals and concerned citizens to further advance the use of important geospatial data assets and to ensure that they remain freely accessible. You can download NSGIC's recommendations [pdf].