OSGeo has been asked to sign an amicus ("friend of the court") brief for an open data court case in California.
Dan Putler wrote the following on osgeo-discuss on 16 Dec 2011:
I've been in contact with Bruce Joffe who has been working on an amicus curiae ("friend of the court") brief associated with two court decisions that have gone in completely opposite directions in California, one involving Santa Clara County and the other involving Orange County. The legal point is the same in both cases, is GIS data (parcel data in particular) data or is it software? If it is data, then it is covered under the California Public Records Act, requiring that it be released to the public for reproduction costs, if it is software, it isn't covered, and is subject to licensing fees. The judge in the Santa Clara County case (correctly) determined it was data, while the judge in the Orange County case (incorrectly) determined it was software. The case is now heading to the California Supreme Court, and Bruce Joffe is rounding up potential individuals and organizations to sign on to the amicus curiae brief. More details about the situation was posted on the Directions Magazine daily newsletter on Wednesday. Here is the link to the article: http://www.directionsmag.com/articles/sierra-club-vs-orange-county-pra-lawsuit-update-december-10-2011/219926
Michael P. Gerlek (mpg) is in touch with Bruce Joffe and is doing some homework on this issue in expectation of asking the OSGeo Board for approval to add our name to the brief.
The process for getting Board approval is documented here: http://wiki.osgeo.org/wiki/Protocol_for_requesting_letter_of_support.
Summary of the Case
Orange County, California ("OC") has a database of parcel map information. The Sierra Club ("SC"), acting under the Public Records Act (PRA) of California, requested a copy of the database. Under the PRA, the data should be provided for a nominal fee (cost of duplication) and without any licensing restrictions. Orange County refused to provide a copy under those terms, requiring instead a payment of $375,000 and a restricted license, on the grounds that the PRA does not extend to the GIS data in question. OC offered to provide PDFs of the original source data for the parcel map under the PRA terms, but not the GIS database. SC brought the issue to court to compel the release of the data in its current, GIS-enabled format.
There are two major issues facing the court.
First, California law excludes "computer software" from the scope of the PRA. However, the statute is worded as follows:
[section 6254.9.b] As used in this section, "computer software" includes computer mapping systems, computer programs, and computer graphics systems.
The inclusion of the term "computer mapping system" (which equates to a "GIS" in modern parlance) is unfortunate. When we GIS professionals speak of a "geographic information system", sometimes we mean just the software (example: "My department just bought a new GIS from ESRI") and sometimes we mean to include the data as well (example: "My local government has a parcel map GIS").
To the open data and GIS communities, a natural understanding of the intent of the PRA is that it is intended to make the data be publicly accessible, not the software. This is SC's position; they feel the GIS itself is indeed software, but the parcel database, accessed by the GIS, is a public record. On the other side, OC considers the term "computer mapping system" to include the database as well as the software. It is a matter for the court to decide what the intended meaning of the statute is.
Second, as the court attempts to interpret the statute, it is guided by a requirement that under the terms of the PRA exclusions are to be construed narrowly and inclusions are to be considered broadly. That is, all other considerations being equal, the court should be liberal in its understanding of the law, so as to be in favor of open data. This important case has the potential for setting a precedent for -- or against -- the policy of public access and open data.
(We note that OC's implicit intent is to use the revenue generated from licensing their data to defray the operating expenses of their county government. While this funding mechanism is generally allowable under the law, it may not be used for data which falls under the control of the PRA.)
(We also note that the PRA provides for exemptions to public release where the data in question may violate privacy laws or raise security concerns. OC is not claiming either of those two exemptions in this case, however.)
Relevance to OSGeo
One of the enumerated goals of OSGeo's mission is
To promote freely available geodata - free software is useless without data.
Open data is a critical component of the open source movement in the geospatial industry; OSGeo was founded in part to promote and advocate for open, public geospatial data. This is an important case in which the very meaning of the concept of "(geospatial) data" and it's accessibility as a public record are both being threatened.
OSGeo, a community of thousands of geospatial professionals, should be proud to join with other notable geo organizations -- including AAG and URISA -- in supporting The Sierra Club's appeal to the courts for the right to access this data.
The following documents provide a good summary of (both sides of) the issue:
- Current briefs to the California Supreme Court on the merits of the case
- Earlier petition to the California Supreme Court to review the case
- Amicus briefs to the Appeals Court
- (D) Amicus Brief by Bruce Joffe, in support of The Sierra Club (no link yet)
- (E) Amicus Brief of League of Cal. Cities and Cal. State Assoc. of Counties, in Support of Orange County
- Other supporting/relevant documents
- (F) "Data Sharing Guidelines" document by NSGIC (National States Geographic Council)
- (G) California Attorney General's opinion on the matter requested by the state legislature at the time of the original Santa Clara County case.
For further reading, previous filings and briefs are archived at http://www.calpubrec.org/oclawsuit/appeal/index.html.