February 7, 2009

Santa Clara County Loses and Freedom of Information Advocates Win Big

CFAC.ORG - In a huge victory for freedom of information advocates, a California appeals court has affirmed the public's right of access to geographic information system "basemap" data, which normally shows the real estate parcel boundaries within a county (most often created by the Assessor's office).

Holding that Santa Clara County must make public its geographic information system (GIS) parcel "basemap" available to the public at a reasonable cost, the Court of Appeal rejected arguments that U.S. Homeland Security regulations and Federal Copyright protection trump the public's right of access under the California Public Records Act.

The decision in County of Santa Clara v. California First Amendment Coalition was issued on February 6th and grows out of a lawsuit filed by the Coalition in 2006, following denial of its request to the county for a copy of the parcel basemap under the Public Records Act. The county at that time offered the basemap for sale at approximately $250,000. The Coalition argued that, since the basemap had been created with taxpayer funds, it belonged to the public and should be made available free or for a nominal copying charge.

You can download the Court's opinion here.

The Santa Clara decision has potentially far-reaching implications. As governments at all levels increasingly maintain records in digital form, legal issues concerning proprietary rights in, and control over, government databases are front and center in freedom of information disputes. Moreover, the Court of Appeal's reasoning on the county's Homeland Security and copyright claims is not necessarily limited to the Santa Clara County parcel base map. It could also apply to virtually any government-created databases, at the local level and statewide, in California and in other states.

For these reasons the case attracted the participation, as amici curiae in support of the Coalition, of dozens of media companies and associations, organizations focused on national security and digital rights access policies, and individuals and companies specializing in digital mapping using geographic information systems.

After the Coalition filed its lawsuit, the US Department of Homeland Security, at the county's request, designated the basemap as "protected critical infrastructure information." In the Court of Appeal, the county argued that this designation under federal regulations had the legal effect of "preempting" state access laws.

The Court, in the first judicial ruling in the country addressing this issue, disagreed. The federal regulations under the Critical Infrastructure Information Act, the Court held, apply to information given by the federal government to a state or county government, but not the other way around.

The county also claimed that it has a federal copyright in the basemap.

It argued that copyright protection authorizes the county to condition release of records, under freedom of information laws like California's Public Records Act, with restrictions on the requester's use of the records or sharing of the records with others. The Court rejected this claim, agreeing with the Coalition that state freedom of information laws preclude a state agency's reliance on federal copyright unless state law clearly permits it for the specific records involved.

The Court stated: "We conclude that end user restrictions [on disclosed records] are incompatible with the purposes and operation of the CPRA."

The county also argued, in a variation of its Homeland Security claim, that even if withholding of the basemap was not categorically justifiedunder state or federal law, it could still be withheld because, under the Public Records Act, the public interest in withholding the information--due to national security concerns--outweighed the public interest in having access to the basemap. According to the county, the basemap is potentially of value to terrorists who could use the data to locate water lines flowing from the Hetch Hetchy reservoir.

But the Court, pointing out that the county had previously sold the basemap to at least 18 customers without security safeguards, was unimpressed with the national security argument, while crediting the value to the public of ready access to the basemap for various applications, including tracking the performance of county government officials in property appraisals and other government functions.


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