Should the California Public Records Act allow free access to high-tech mapping databases maintained by governments? The California Court of Appeal says no, concluding the governments may charge for access to these databases maintained at taxpayer expense.

In Sierra Club v. Superior Court of Orange County (May 31, 2011) 195 Cal. App. 4th 1537, the Sierra Club sought access to Orange County’s geographic information system (GIS). While the county agreed to provide the maps in Adobe PDF format, the Sierra Club was not satisfied. It demanded free access to the database in a high-tech format that can be read and manipulated by advanced computer mapping programs known as the “GIS” format, even though others pay for this same access.

The Sierra Club cited The California Public Records Act (Gov. Code, § 6250 et seq.), which requires that government agencies make public records promptly available to any requesting person upon payment of fees for the cost of duplication, unless the record is exempt from disclosure by express provisions of law. (Gov. Code, § 6253, subd. (b)).

Orange County cited Government Code section 6254.9, which excludes “computer mapping systems.” The section notes that “[c]omputer software developed by a state or local agency is not itself a public record.” Therefore, the agency may “sell, lease, or license” it.

The Sierra Club disagreed, arguing that the “computer mapping system” excluded by this latter section includes only the GIS computer program, but not the database, based upon their interpretation of the standard dictionary definitions of “computer software” and “data.”

The court looked to the legislative history of section 6254.9, which originated from an amendment proposed by the City of San Jose in California’s Silicon Valley. The city sought to license its computer programs, but was “concerned about recouping the cost of developing the software.” The legislative history also showed that the “computer mapping systems” that the City of San Jose was concerned with referred to their databases, not the GIS programs, which are regularly provided by third party vendors. The court therefore concluded that it was the databases that were intended to be protected by Government Code section 6254.9 so that government agencies could recoup their development costs.

The court distinguished County of Santa Clara v. Superior Court (2009) 170 Cal.App.4th 1301, in which a different California appellate court came to precisely the opposite conclusion, aided by the advocacy of the First Amendment Coalition. The Sierra Club opinion found that the Santa Clara case was not decided on the analysis of Government Code section 6254.9 or the legislative history relating thereto.

Ruling in favor of Orange County, the court found that the Sierra Club should pay for access to the GIS database, just as others have. The Sierra Club has filed a petition with the California Supreme Court, so stay tuned for further developments.

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