A local government may not use the Homeland Security Act, copyright law or cost concerns to shield its geographic information system (GIS) base map from public disclosure, the Sixth District Court of Appeal has ruled.

Although the court ruled squarely for the California First Amendment Coalition in its litigation with Santa Clara County, the court did not decide whether the county could charge extraordinary fees for providing the GIS information. Instead, the appellate panel referred that issue back to Santa Clara County Superior Court.

The First Amendment Coalition (CFAC), which filed suit after the county twice denied requests for release of its GIS base map, called the ruling an important precedent.

"The Santa Clara decision has potentially far-reaching implications," CFAC Executive Director Peter Scheer wrote. "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 other states."

Deputy County Counsel Robert Nakamae said the county may ask the Sixth District to depublish the decision so that it cannot be cited as precedent. The county may also seek a state Supreme Court review.

"The Court of Appeal's decision forces the county to disregard the United States Department of Homeland Security's validation of the base map as ‘protected critical infrastructure information,'" Nakamae said. "The state court decision also creates a gaping loophole in federal laws because anyone can obtain this type of information from the party submitting it to DHS."

Sande George, California Chapter American Planning Association executive director, said that the issues raised in the litigation need to be discussed by the organization and public sector planners who respond to public requests for information and maintain GIS databases. At this point, though, CCAPA has no official position, she said.

According to the First Amendment Coalition, 37 of California's 58 counties provide GIS base map data to the public for free or for a nominal reproduction cost. Santa Clara County is not one of those 37. Twice in 2006, CFAC submitted a request under the California Public Records Act for the county's GIS base map. Both times, the county denied the request, citing statutory exemptions and copyright protection. The coalition then went to court to compel the county to produce the desired information.

Santa Clara County Superior Court Judge James Kleinberg ruled for CFAC, noting that the county had entered into agreements with 18 different entities, including 15 government agencies, to provide the base map. He ruled that there was no exemption for the requested material under the California Public Records Act (CPRA) and ordered the county to provide the information at its direct cost. Judge Kleinberg, however, stayed his ruling to permit the county to appeal. The Sixth District has ordered the stay to remain in place until the lower court resolves the fee question.

The county made two arguments for not releasing the requested information: The Critical Infrastructure Information Act, part of the Homeland Security Act of 2002, preempts the state's public records law, and the CPRA's catchall exemption applies to the GIS base map. The county also argued that if neither of those preemptions stands, it could demand end user agreements and payment of more than direct cost of reproduction because the GIS base map is protected by copyright. A unanimous three-judge panel of the Sixth District was unconvinced.

On the issue of federal preemption, the court found that the federal law and its accompanying regulations draw a distinction between a state or local government's submission of critical infrastructure information, and protected infrastructure information provided by the federal government to other levels of government.

"[T]he federal statute's prohibition of disclosure of protected confidential infrastructure information applies only when it has been ‘provided to a state or local government or government agency,'" Justice Richard McAdams wrote for the court, citing 6 U.S.C. § 133(a)(1)(E)(i). Because in this case the county is a submitter of information, not a recipient, federal preemption of the state public records law does not apply, the court held.

In support of using CPRA's catchall exemption, the county argued the public interest in obtaining the GIS base map was "minimal and hypothetical," while the county's purpose for withholding was supported by public finance and security concerns. The First Amendment Coalition disagreed, and so did the court.

The public has a legitimate interest in understanding government activities, the court found. And the fact that the public records act request might pose a burden on the county is not a valid reason to block disclosure, the court ruled.

On the issue of security, the county argued that terrorists could use the GIS base map to locate the Hetch Hetchy system water pipes, which serve much of the Bay Area. The coalition countered with a GIS expert, Bruce Joffe, a member of the Department of Homeland Security's Geospatial Working Group, who testified that the base map would only identify the Hetch Hetchy right-of-way, which may be identified through other records. Even if right-of-way identification were a concern, the county could remove that information from the base map before providing it to CFAC, Joffe said.

The trial court and the Sixth District concluded security must not have been an overriding county concern if the county were willing to sell the base map to 18 purchasers. "In the trial court's view," McAdams wrote, "‘If the security issues were of greater importance, one would think there would be no dissemination of the GIS base map whatsoever.' We see no reasoned basis for overturning that inference."

The issues raised regarding copyright and end user restrictions had never before been addressed in a published opinion in California. Essentially, the county argued its GIS base map is protected by copyright and that the county could limit how the base map is used. The coalition argued public records in California are not copyrighted, an argument the court accepted.

"The CPRA contains no provisions either for copyrighting the GIS base map or for conditioning its release on an end user or licensing agreement by the requester," McAdams concluded.

The only issue the court left unresolved is the amount the county may charge for the GIS base map.

County attorney Nakamae maintained the decision regarding a public agency's ability to create copyrighted material is improper. That decision could cost the county its ability to sustain the base map, he said.

The Case:
County of Santa Clara v. The Superior Court of Santa Clara County, No. H031658, 09 C.D.O.S. 1526, 2009 DJDAR 1802. Filed February 5, 2009.
The Lawyers:
For the county: Robert Nakamae, county counsel's office, (408) 299-5960.
For the California First Amendment Coalition: Rachel Matteo-Boehm, Holme, Roberts & Owen, (415) 268-2000.