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Basemapping: Not as Cool as Basejumping but More Important

March 29, 2011

The title may seem odd but it’s actually a reference to the response I got from a fellow access to information advocate when I mentioned that Capitolbeat had signed on to an amicus brief seeking access to basemaps. He said “is that where you jump off bridges and things”. Of course, when I explained what basemaps are and why we’d want access to them, he knew exactly what I was talking about. After reading this, you’ll probably realize, if you didn’t already, what basemaps are and why you may (or already do) want easyand cheap access to them.

The term “basemap” refers to a particular type of GIS mapping data employed by state and local governments around the country.  GIS is a multi-layer technology that allows for sophisticated analysis of geographic information.  The basemaps basis data such as boundary lines.  address and ownership information. Virtually every level of government has its own set of basemap to reflect geographic territories.   It’s a great starting point for analyzing any number of activities.  For instance, anyone can purchase relatively cheap, commercially available software which can be used to layer other publicly available databases over this “basemap”.  You can layer, for instance, databases relating to transportation, land use, census tracts, postal codes, and other government initiatives to better visualize their effect across a city, county or even the state.   Starting to how this can be helpful (if you didn’t already)?

Having been created by the government, GIS is generally considered a government document accessible through the relevant FOI law for the usual nominal access fee.  But some entities, recognizing the basemaps’ inherent value, have tried to use them as a revenue-generator. Given the state’s financial troubles, it should be no surprise that the leader in this area are certain California counties.  The first California county to demand a significant sum for GIS records was Santa Clara County.  In 2006 the California First Amendment Coalition (“CFAC”) sued Santa Clara County for access to certain basemaps after the county declared that the maps were exempt from the state FOI law, but then offered to sell them to CFAC for a princely sum.   Santa Clara County invoked at least 6 different exemptions to the FOI law, but relied most heavily on an exemption which states that the government does not have to disclose any computer software developed by a state or local agency.  CFAC argued that the basemaps are not themselves software; they are electronic data that require software to review and analyze.

The trial court ruled for CFAC.  This ruling was upheld in early 2009 by the California Court of Appeals for the Sixth Appellate District.   The Court of Appeals required Santa Clara County to provide the CFAC with its basemaps, at a cost of $ 12.40 ($ 3.10 for 4 discs).

Several California counties immediately amended their GIS release policies to come into line with this ruling. Orange County did not.  It continued to refuse to release GIS basemaps, arguing the “software” exemption.   This time the Sierra Club has led the charge, filing suit in Orange County Superior Court in April 2009.  Shockingly, the trial judge ruled for Orange County, holding that the basemap data was, in fact, part of a mapping system constituting software.  It discounted the earlier ruling of the Sixth Circuit as not controlling.  The Sierra Club filed a petition for appeal with the California Court of Appeals for the Fourth Appellate District.  Fearing that affirmation of the ruling in favor of Orange County will result in other counties in California reinstating large fees for GIS basemaps, CFAC has moved from plaintiff to main amicus party.

22 media organizations and companies joined the amicus brief.  You can read it here, but the main arguments are:

  • Public Access to electronic GIS mapping data is critical to the public’s ability to monitor government decisions and actions affecting property.  This first section of the brief explains how the public, including the press, can use government basemap data in a way that they cannot use similar, nongovernmental maps.   The brief shows how these records have been used by media and non-media in several ways.
  • The particular “software exemption” claimed by Orange County does not apply to mapping data or any other computerized data.  The brief makes a simple, plain statement here: the records sought by the Sierra Club are not software. This is not a factual question, as Orange County would have the court believe; rather it requires investigation into the CA Public Records Act’s plain language and legislative history.  The language is equally plain and clear:  there is a distinction between software (exempt) and data stored in a computer (not exempt). Furthermore, the only state opinions to date on the subject – from the 6th Circuit Court of Appeals and the California Attorney General – have required disclosure because this is data, not software. This is the most lengthy section of the brief, delving into a significant amount of California-specific legislative history.  But it is important not just in this case, but nationwide, as the argument could be repeated again and again where another state’s law has similar language.
  • Most importantly, several other states have already exempted computer mapping systems.  The brief cites these other states’ exemptions as a way of demonstrating that those states took pains to write their laws more clearly than California – specifically exempting things like “geographic computer databases” (apparently, Iowa, Illinois, Maryland, Nevada and North Carolina have such exemptions).   In a sense, then, we’re not just fighting for California’s law, but setting up the fight for all other states in which the law is less than clear.  It may have the unfortunate consequence that many states might try to rewrite their exemptions with more precision, but it is often easier and less expensive  to defend against such changes in the legislature than fight an adverse agency decision in court.
  • An adverse decision would not only affect access to these records but, potentially, any other electronic records that would be re-defined as “software”.  This is another issue that has widespread implications both in California and nationally.  It could translate into fee increases in the hundreds of thousands of dollars over the long term.

In some ways, this is a very state-specific case of the type we usually avoid.  It deals with arcane aspects of that state’s law. But, in  a larger sense, I hope you agree that a bad decision here sets the table for:  1) loss of access to these important records in California  (this almost certainly will go to the California Supreme Court), and  2) application of the ruling to other electronic records in California. Because California is so large and influential, it’s reasonable to expect that an adverse decision would reverberate thorugh other states, especially those states that have not directly exempted computer mapping systems.  These records are extremely valuable, so we’re not talking about a very state-specific, record specific matter of little value – and there’s thousands of real life dollars to be lost.

So, I hope you agree that we did the right thing by simply jumping in.

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