In a major victory for open government and data access, the California Supreme Court yesterday ruled that Orange County cannot restrict access to its electronic mapping data–a so-called “basemap.” The Court decided unanimously that the county basemap is a public record under the Public Records Act, which means that it must be made available without use restrictions and for the cost of duplication–a few dollars at most.
At the start of the case, Orange County had been charging users–mainly utilities and developers— over $100,000 for the same basemap.
The First Amendment Coalition took the lead in organizing a key amicus brief in this case, Sierra Club v. Superior Court, on behalf of California and national news media and open-government organizations. FAC also had litigated the same issue in a successful suit against Santa Clara County in 2010.
The Sierra Club decision is potentially important for lowering legal obstacles facing “big data” and “open data” initiatives. Orange County had argued that its mapping data, which was stored in the geographic information system (GIS) format, was subject to the PRA’s exemption for “software.” In fact the county, in responding to the Sierra Club’s PRA request in 2010, had originally offered to provide the environmental group with pdf files.
The Court’s decision yesterday, however, makes clear that data cannot be transformed into software–and thereby placed beyond the reach of the PRA–merely because it is formatted for use with software. The Court said that denying the public access to formatted data would “substantially undermine” the PRA.
“Implicit in the democratic process is the notion that government should be accountable for its actions,” the Court said. “In order to verify accountability, individuals must have access to government files. Such access permits checks against the arbitrary exercise of official power and secrecy in the political process.”
Open Data initiatives, while powerful tools for evaluating the performance of government agencies, depend on the cooperation of agencies for access to relevant data sets. The Sierra Club decision will make it harder for agencies wishing to withhold data–for fear it will reflect unfavorably on the agency, or to protect restricted or exclusive arrangements with private data firms–to do so.
This will continue to be a major legal battleground. But the Sierra Club decision gives a legal boost to those seeking public access to government data.
The decision is also important for putting teeth into Prop 59, the open-government constitutional amendment enacted in 2004. After examining the language and legislative history of the PRA’s software exemption, and finding that they could be read in some respects to support the claims of both the county and the Sierra Club, the Court applied Prop 59’s presumption of access to resolve the issue in favor of disclosure.
Lower courts have sometimes ignored Prop 59’s directive to give a broad interpretation to statutes that provide a right of access (and a narrow interpretation to provisions that create exemptions to access rights). The Sierra Club decision puts them on notice that Prop 59 means what it says. Going forward, any ambiguities in laws relating to government transparency have to be resolved in favor of greater transparency.
Here’s the Sierra Club decision.
FAC’s media amicus brief was prepared by lawyers Rachel Matteo-Boehm, Katherine Keating and Leila Knox at the Bryan Cave law firm in San Francisco.–SCHEER
One Comment
In addition to this victory, the loophole for software also needs to be revised. There is a great potential for fraud in electronic voting (http://www.washingtonsblog.com/2012/11/videos-of-vote-fraud-pour-in-from-both-liberal-and-conservative-sources.html), and even more so if the software can be hidden from public scrutiny.
I did a Public Records Act request for access to the software used for online voting by students and faculty at Cal Poly Pomona where I teach. The CPRA request was rejected based on the software exemption. The stated rationale was that “disclosure would reveal vulnerabilities to, or otherwise increase the potential for an attack on, the University’s information technology system.”
However note that one of the arguments for using open source software is that having the code publicly available can result in a reduction in vulnerability. See http://www.dwheeler.com/secure-programs/Secure-Programs-HOWTO/open-source-security.html.
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