Impressions of the Hearing before the California Supreme Court

On Tuesday, May 7, 2013, 14 months after all the written briefs were filed, and 20 months since the California Supreme Court agreed to hear this case, lawyers for both sides summarized their arguments and answered questions before the seven presiding Supreme Court Justices.  Attorney Sabrina Venskus represented the Sierra Club which is suing Orange County for access to its GIS-compatible digital parcel basemap database under terms of the California Public Records Act (CPRA) that include paying no more than the direct cost of duplication.  Attorney Mark Servino represented Orange County which has been requiring users of its “OC Landbase” to pay $475,000, plus sign a license that restricts sharing or redistribution of its database.Although Orange County abruptly reduced its price late in December, 2011, the case stems from the Sierra Club’s public records act request for data made in March, 2009.  Orange County won SC’s lawsuit in Superior Court in April, 2010, affirming its right to exempt its GIS-compatible database from the CPRA.  Sierra Club appealed the decision, but Orange County again prevailed in the Court of Appeal in June, 2011.  The California Supreme Court hearing is the final appeal; its decision will be the final judicial determination of this issue.  At stake is whether the public has unfettered access to the GIS-compatible data that its government agencies use to conduct “the public’s business,” in the same geodatabase format that the agencies themselves use, or whether the government can license, restrict and charge high prices for such access.  As more and more governmental decisions and actions are based on GIS analysis, the issue is central to governmental transparency and accountability to us, the citizens of our democracy.

The California Public Records Act states in §6253.9 that any agency that has information which constitutes identifiable public records in electronic format, shall make the information available in the electronic format in which it holds the information, and that the agency shall provide a copy of the electronic records if the requested format is one that has been used by the agency to create copies for its own use, or for provision to other agencies.  Further, the section states that the cost of duplication shall be limited to the direct cost of producing a copy of the records in the electronic format.  The crux of Orange County’s argument is that its GIS-formatted database is exempted under §6254.9, the so-called “software exemption.”

Section 6254.9 says that computer software developed by a state or local agency is not itself a public record, and defines “computer software” in paragraph (b) by saying it “includes computer mapping systems, computer programs, and computer graphics systems.”  These terms are nowhere defined, so Orange County claims that “computer mapping systems” includes the database as well as the software.  The County claims that its “OC Landbase,” which is a GIS database, is exempted by being part of a “computer mapping system.”  The County claims that only the source data that was input into its GIS is public record, and the County does make that available as .pdf pictures of the maps of its 640,000 parcels.

Sierra Club, joined by 212 individual GIS Professionals and 23 professional GIS organizations who co-signed one amicus brief among seven supportive amicus briefs, contend that “computer mapping systems” refers only to software, not to the data on which the software operates.  Further, it has asserted that .pdf files are not equivalent to a GIS-compatible database, and that the public’s right to inspect and review the exact same data that Orange County uses to make its decisions would be curtailed by .pdf-only data.

The Supreme Court hearing lasted exactly one hour; it was the second of three cases heard by the Court on Tuesday morning.  Most of the time was consumed by the attorneys answering rapid-fire questions from the Justices, questions which sometimes came before an attorney finished a previous answer.  Neither attorney, nor the public who attended the hearing, were allowed to bring electronic devices into the courtroom;  no cell phones, no recording devices, no computers.  The following is my personal recollection of some of the Q&A repartee.

Sierra Club’s attorney (SCa) – began by recounting the CA Attorney General’s Opinion (2005) that “computer mapping systems” does not include software, and the Santa Clara County decision [County of Santa Clara v Superior Court of Santa Clara County (2009) 170 Cal.App.4th 1301, 1334] which required Santa Clara County to provide its GIS basemap for the cost of duplication.  She focused on the CA Constitution [Art. I, §3, subd. (b)(2)] which states that “a statue shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access,” concluding that “computer mapping systems” must be interpreted narrowly as “software” so as not to exempt the public’s right to access the GIS database.

A Court Justice (CJ) asked – wouldn’t .pdf data file suffice?

SCa – The legislative history shows that the word “database” was taken out of previous versions of the bill, so “computer mapping systems” can not be construed as exempting GIS databases.

Another CJ asked – When the Legislature has defined a term, that term replaces the word’s “ordinary meaning,” but here, the PRA does not define “software” nor “computer mapping system,” so those terms’ ordinary meaning remain, “is that the crux of your argument?”

SCa – apparently wary that she was being invited to step into a trap answered vaguely, to which the CJ replied, “I’m trying to help you out here!”

CJ – noted (in agreement with SC’s written brief) that there is a need to “harmonize” the apparent contradiction between §6253.9 and §6254.9 of the CPRA, as well as the apparent contradiction between paragraph (b) of §6254.9 and paragraph (d) which states, “Nothing in this section is intended to affect the public record status of information merely because it is stored in a computer.  Public records stored in a computer shall be disclosed as required by this chapter.”

Orange County’s attorney (OCa) – began by saying that the licensing fees were allowed by the “software exemption” so that the County could recover the development cost of its GIS database.  OC contends that the “public information” is not being withheld as all the GIS information can be disclosed “in .pdf electronic format.”

CJ – asked OCa why he thinks §6253.9 doesn’t require OC to provide the same GIS database format that it uses and provides to paid subscribers.

OCa – answered that the GIS database is exempted by §6254.9.

CJ – Are you saying that there are two kinds of public record, one being exempt?

OCa – Yes, but we are not withholding “the data,” however “the system” costs us a lot of money.

CJ – Do you agree that 49 [out of California’s 58] counties are able to provide their GIS database according to the CPRA?

OCa – Yes.

CJ – Why can’t Orange County afford to provide the data at the cost of duplication if 49 other counties can do so?

OCa – Because the 26% of the annual operating cost of $781,000, which we receive from data sales, shouldn’t burden our taxpayers.

CJ – Is it your position that the legislature intended to enable agencies to recoup their operational costs?  [even though §6253.9 limits the cost to the “direct cost of producing a copy of a record in an electronic format.”]

OCa – Yes.

CJ – What does the $781,000 pay for?

OCa – Computers, software, and …

CJ – Aren’t computers simply a fixed cost of doing business?

OCa – … it pays for personnel to input the data.

CJ – Isn’t this the same for any county department?  Wouldn’t the exemption that pertains to “computer programs” as well as “computer mapping systems” therefore exempt all county data where there is a cost to inputting new data, say into a Word program?

OCa – MS Office is not a “computer mapping system.”

CJ – But it is a computer program.  Doesn’t your argument exempt data input by all “computer programs?”  Where did the Legislature specifically indicate wanting to exempt computer mapping system data so the agency could sell it?

OCa – The expense of the City of San Jose’s computer mapping system was referenced.  [Note: the software exemption was initially proposed by San Jose so they could sell their database, however, the legislature replaced “information database” with “computer mapping system” in the final version of the bill that became §6254.9.]

CJ – Isn’t this a fight about fees and licensing?

OCa – Yes.  Since December, 2011, the County now charges less for its database. [$1,000 to $5,000 depending upon whether the buyer is a public or private entity.]

CJ – Since §6254.9 doesn’t define “computer mapping system” to include data, how do you interpret the Constitutional requirement that “a statue shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access?”

OCa – Narrowly, only the data in a computer mapping system is exempted, not all the data in any “computer program” or “computer graphics system.”  The County agreed to provide the data in non-GIS format.

CJ – Are you concerned about commercial entities making money with the County’s data?

OCa – We are concerned with funding for maintaining GIS functionality.

The Sierra Club’s attorney then took the stand for rebuttal.
SCa – The Williams decision [Williams v Superior Court (1993), 5 Cal.4th 337,346] established that all government data is public record unless expressly exempted.  OC has stipulated that its Landbase does not contain software, and computer mapping system data was not specifically mentioned in the software exemption.  She also noted that Orange County created its GIS for the public’s benefit with taxpayer money; OC’s demand of a hefty fee for the data actually double-charges taxpayers when they, or even other OC government agencies, request the data.

CJ – San Jose [and Orange County] purchased the GIS to make their operations more efficient, what is your best argument that the Legislature did not allow them to charge for cost recovery?

SCa – The legislative history: removal of “information databases” from the exemption and substitution of “computer mapping systems.”  The Legislature could have specifically exempted “computer mapping system databases” but it didn’t.

CJ – What about the County’s concern that private companies will profit from its database?

SCa – Sierra Club is not a commercial interest; it is a non-profit entity, so it shouldn’t have to pay for database development.  Neither should state, local or federal agencies.  Enabling OC to charge for “computer mapping system” data would put us on a slippery slope that could exempt all “computer program” data.

Thus did our Hour in Court end.
The Court has up to 90 days to issue its decision.
But I’ll issue my personal opinion now, as follows:

The Justices’ questions indicate that they had a clear grasp of the technical as well as the legal issues.  It seems that they were leaning toward the Sierra Club.

No distinction is allowed under California law for the kind of entity that makes a PRA request, be it a public agency, private agency, for-profit or non-profit.  The government agency can not discriminate, indeed, it can’t even ask what the requester’s purpose of the data is.  §6257.5 says, “this chapter does not allow limitations on access to a public record based upon the purpose for which the record is being requested, if the record is otherwise subject to disclosure.”  I hope the Court does not allow fees to for-profit entities while banning fees to non-profits or government entities.  Fees in excess of cost of duplication are wrong no matter who is requesting the data.  A two-tiered system would mistakenly endorse OC’s interpretation of “computer mapping systems.”

There are not “two kinds of public data,” GIS-compatible databases and non-GIS .pdf files.  The public needs access to the very same geodata, in the very same database format that the government uses to conduct the public’s business.  PDF files do not contain the relational associations between data elements that are encoded in a GIS database.  While using its own GIS software, the public needs to have a copy of its governments’ geographic database to check, and possibly to challenge, its governments’ analyses and actions.  That is the essence of transparency and accountability.

The “cost of operation” argument fails to take account of the value the County is receiving from its use of GIS.  If the County determined that its GIS operation and database maintenance were costing more than the value being returned by increased efficiency, better decision making, and reduced costs from bad decisions, then the County should turn off its GIS operation rather than try to support it with data sales.  But if they did turn off their GIS, I imagine it would be switched on again well before lunchtime.  Without GIS, Orange County couldn’t conduct its mandated duties.  In my opinion, recognition of the value that using GIS provides to County operations should fully justify its support through normal budgetary allocation, instead of through selling data in violation of the CPRA.

If Orange County wins, we can expect its price, as well as that of several other counties’ data, to suddenly skyrocket.  Let us hope that the Supreme Court Justices understand, beyond the technicalities of “GIS databases,” the important public policy principle they will be deciding.

Bruce Joffe, GISP
May 10, 2013