shrug-l: Sierra Club v Orange County CA Public Records Act lawsuit update 12-10-11

[Tripp Corbin]

Sierra Club vs. Orange County PRA Lawsuit update - December 10, 2011

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.

The GIS Community's amicus brief is scheduled for submittal in early
February.  GIS professionals who may be willing to co-sign a GIS amicus
brief can contact Bruce Joffe (founder of the Open Data Consortium project)
at 510-508-0213, email Bruce at GIS.Consultants at joffes.com. 

In related news, the National States Geographic Information Council (NSGIC)
recently issued a 4-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 from
http://www.nsgic.org/committees1/documents/NSGIC_Data_Sharing_Guidelines_103
111_Final.pdf

 
Thanks for your attention,
Bruce

  _____  

        Bruce Joffe, GISP
        Principal, GIS Consultants
        902 Rose Ave.
        Piedmont, CA  94611
        510-508-0213
        GIS.Consultants at joffes.com

  _____  

 

 

Tripp Corbin, MCP, CFM, GISP | Chief Executive Officer
 <http://www.keckwood.com/> eGIS Associates, Inc.

 <mailto:tcorbin at keckwood.com> tcorbin at egisassociates.com |
www.egisassociates.com 

678-710-9710 ext 21 | 866-304-3864 Fax

Esri Certified Trainer | Esri Certified Desktop Associate

 

 

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