Module 2: GIS Data & Public Records

Your GIS data and/or state open records act statute controls your legal options.

2(B): TERMS

Legal Concepts in GIS Data Policy and Open Records

Sierra Club v. Orange County

There Exists a Common Law Right to Records

There has long been a common law right for Missouri citizens to inspect and copy public records predates the codification of these rights in 1961 by the Missouri Revised Statutes section 109.180 and in 1973 by Missouri’s Sunshine Law.
The purpose of the Sunshine Law is made clear by well-established case law unvaryingly espousing that “[t]he public’s right to inspect . . . public records comes not from any personal interest in the subject matter of the records.
Rather, the right stems from the public’s presumed interest in the integrity and impartiality of its government.”
Moreover, “open records do not simply accommodate the public’s amusement, curiosity, or convenience. Instead, it is simply beyond dispute that public records are freely accessible to ensure confidence in the impartiality and fairness of the judicial system, and generally to discourage bias and corruption in public service.”

RSMo § 67-1850 Missouri’s Public Records GIS Data Sales Statute
Even Missouri’s RSMo § 67-1850 starts by declaring GIS data a public record subject to disclosure.

Common Law on Public Information

Government information generally is and ought to be publicly available; and
Certain government information must remain secret if the government is to carry out its purposes; and
Government information concerning individuals cannot be made public without unwarranted violation of individual privacy; and
If there is a compelling government interest in restricting access to data sets these restrictions must be enumerated; and
The public is entitled to a copy of the information for the reasonable cost of reproduction.

Comment 15

Module 2a: Transparency

Your GIS data and/or state open records act statute controls your legal options.

What is a copy of a public record?

In Missouri, a citizen is entitled to receive a copy of the record in the same format in which it is stored.
The government cannot provide the record in X- format if it is stored by the government in Y- format without the agreement of the requestor.

Comment 16

Intersection of Geospatial Data & Public Records 1980-2020

Open Records For GIS

Everything you can shove in a gdb is very likely a public record.
Your software is exempt from public records.
Some economic development related GIS information may be exempt from disclosure.
Some law enforcement GIS information may be exempt from disclosure.
When in doubt, ask your legal counsel.

Comment 17

Module 2b: Terms

Legal Concepts in GIS Data Policy and Open Records

Public Policy Considerations

“[I]nformation products may be regarded as public goods that are non-rivalrous and non-excludable.
Non-rivalry is taken to mean that the consumption of information does not diminish the capacity of another to use it.
Non-exclusion is understood to be where every user can have access to the information, even though it is being used by another (for example a navigation beacon).

The seller of the information still retains the dataset, even after its sale.”
– George Cho

Comment 18

GIS Data Legal Issues

Dillon’s Rule

Local government can only do those things which are specifically authorized by the state through either a statute or an article of the state constitution.
Just because you are doing it, doesn’t mean you are allowed to do it.
Your state may not follow Dillon’s Rule.
Home Rule may be a way around this.

What is the Home Rule?
Comment 19

Data Set Disclaimers

Keep them short.
Keep them simple.
Understand they are not an impenetrable shield.
They only work if you have acted in good faith and they are a legitimate and noticeable statement of your rights.
Sovereign immunity does most of the work for you.

Copyright & Intellectual Property

It is highly likely that as a government organization you have absolutely no intellectual property rights at all.
This is mostly a matter of federal law.
Geographic information and feature class data are not inherently protectible.
You function mostly as aggregators of information rather than creators of information.

Contract Obligations

Don’t contract with a third part for information if the contract between the two of you states you cannot release that information to the public.
Unless, the type of information is an enumerated exemption in your state’s open records act.

End Use Restrictions

The contract the GIS data requestor signs will often contain language that restricts the manner in which the data can be used.
The state statutes may also contain provisions which limit the use of public records.
- See Swimming Pool Salesmen in KS.

Comment 20
I think you should explain the swimming pool salesman or I can add any relevant links.

Right to Improvement

Some GIS data license agreements assert a claim by the government that it is entitled – at no cost – to any improvements, corrections, or other value added changes to its data sets.

Liability & Indemnification

Some GIS data license agreements disclaim any liability on the part of the government under all conditions and for any level of negligence on the part of the government.

Equity

In law, the term “equity” refers to a particular set of remedies and associated procedures involved with civil law.
These equitable doctrines and procedures are distinguished from “legal” ones. While legal remedies typically involve monetary damages, equitable relief typically refers to injunctions, specific performance, or vacatur.
A court will typically award equitable remedies when a legal remedy is insufficient or inadequate.
Many licensure agreements demand equitable remedies.

Comment 21

Module 2c: Case Law

Sierra Club v. Orange County
Sierra Club v. Superior Court, 57 Cal. 4th 157 (Cal, 2013)

The Public Policy Issues

[…]Petitioner Sierra Club sough the records at issue in this action to determine—and convey to the public—the status of large areas of open space in Orange County, including whether each area is protected from development by conservation easements or public ownership or is threatened by a proposed development.”

Comment 22

Our Case Begins (1/3)

GIS technology has been in the hands of the political action groups and citizens for some time now.
The Sierra Club wanted to determine if Orange County was playing hide the ball with the remaining natural habitat in the county.
In June 2007, petitioner Sierra Club sent a letter requesting a copy of the OC Landbase pursuant to the California Public Records Act (PRA).

Comment 23

Our Case Begins (2/3)

Negotiations between Orange County and the Sierra Club commenced.
In March 2009, Orange County offered the requested information as either a hard copy or as a PDF.
Alternatively, if the Sierra Club signed a data license agreement, agreed to disclosure and distribution restrictions, AND paid a subscriptions fee ($475,000) they could get the data in GIS format.

Comment 24

Controlling Constitutional Text

Cal Const, Art. I § 3. Assembly, petition, open meetings

(a) The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good.

The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.

Comment 25

Legal Tip: Never make it easier and cheaper to sue you than it is to pay you for something.

Our Case Begins (3/3)

47 of the State’s 58 counties give GIS data away for the cost of reproduction.
Exasperated – The Sierra Club went to court.
They lost at the Superior Court – They appealed.
They lost at Court of Appeals – They appealed.
They next found themselves in the California Supreme Court and so begins our story…

Comment 26

Orange County Claims its GIS data are exempt from PRA

§ 6254.9. Computer software developed by government agency

(a) Computer software developed by a state or local agency is not itself a public record under this chapter. The agency may sell, lease, or license the software for commercial or noncommercial use..

As used in this section, “computer software” includes computer mapping systems, computer programs, and computer graphics systems. […]

BUT HEY WHAT ABOUT THIS SUBSECTION?

(d) 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. […]

Comment 27

Public Policy Precepts of the CA Public Records Act (PRA) Statute:

The California Public Records Act and the California Constitution provide the public with a right of access to government information.
Openness in government is essential to the functioning of a democracy.
Implicit in the democratic process is the notion that government should be accountable for its actions.
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.
The public is entitled to the information for the reasonable cost of reproduction.

Comment 28

Legal Reasoning

The county kept the parcel database in a geographic information system (GIS) file format.
It made the database available in that format for licensing, but not as a public record.
The court observed that all public records were subject to disclosure unless the Legislature expressly provided to the contrary, in light of the strong public policy expressed in Gov. Code, § 6250, of the people’s right to information concerning the people’s business and the constitutional mandate in Cal. Const., art. I, § 3, subd. (b)(2), to construe statutes limiting the right of access narrowly.

Comment 29

Case Outcome

The CA Supreme Court held that parcel map database was not within “software” exception from PRA.
The court reversed the judgment of the court of appeal and remanded to that court with directions to remand to the superior court of issuance of a writ.
Translation: GIS data are public information.

Comment 30

**Why Sierra Club v. Orange County matters** (1/3)

There will be more states GIS cases on this subject simply because the laws are non-uniform among the states.
Very few state GIS cases have been appealed to an appellate court, let alone the state supreme court.
Some state statutes are vulnerable to attack on equal protection grounds because they give certain industries like relators a better/different price/access than other users.
Numerous jurisdictions have no logical pricing scheme requirements which could stand against either an equal protection or substantive due process attack.
There is an equal protection argument AGAINST treating geospatial data differently from other state held data sets.

Comment 31

**Why Sierra Club v. Orange County matters** (2/3)

Some state statutes still make the mistake of conflating software with data.
The position of some states – that providing hard copies instead of electronic is sufficient – is vulnerable to a procedural due process attack.
New cases will look to existing case law.
Sierra Club v. Orange County is the best (only) case on the subject and stands as a well-crafted legal opinion.
The California Supreme Court is respected by other state courts for the quality of its legal opinions on technology and public record opinions.

Comment 32

**Why Sierra Club v. Orange County matters** (3/3)

Geospatial data have tremendous value and consumer behavior analysis applications.
The market for this data is prolific and maturing and this case lowers the risk/cost of the next lawsuit in other state courts.
State and local government lawyers may be less likely to want to defend restrictive data policies now that a giant like Orange County has fallen.
The press and citizen watch dog groups using GIS will only multiply.

Comment 33

Next Module: Developing a Functional Legal Policy