Government can charge licensing fees for GIS data

A California appeals court ruled Tuesday that state agencies can charge licensing fees to the public for access to electronic geographic information system data stored in geographical mapping programs.

In Sierra Club v. Superior Court of Orange County, the California Court of Appeal (4th Dist.) in Santa Ana found that an exemption in California’s Public Records Act allowing governments to sell, lease or license “computer mapping systems” to the public applied to the database information contained within the mapping program, in addition to the GIS program itself.

GIS databases allow users to analyze and manage location data, and they are often used by local governments to store information about land parcels.

In July 2008, the Sierra Club submitted a public records request for Orange County’s "parcel geographic data in a GIS file format,” which meant that the data could have been analyzed, viewed and managed with GIS software. Under California law, someone asking for public records would normally only have to pay the cost of duplicating the documents, which is usually minimal in the case of electronic records.

However, Orange County asked for a licensing fee. When the Sierra Club refused to pay it, the county instead offered to give them copies of the documents “containing the parcel related information in PDF format or printed copies,” the court said.

The court found that the exemption’s legislative history made clear that part of the purpose of the exemption is to allow public agencies to recoup the costs of developing and maintaining computer mapping systems. The exemption at issue does not specifically define “computer mapping system,” but, in interpreting the term, the court found that the database contained within the system was inseparable from the system itself, and, thus, could be leased, licensed or sold along with the system.

The Sierra Club is “definitely considering petitioning the [California] Supreme Court for review,” said Sabrina Venskus, the attorney who represented the group in the case.

If the appellate ruling stands, it could have a large, negative impact on the ability of California journalists to use public electronic mapping data in their work, said Rachel Matteo-Boehm, a California media lawyer who wrote a friend-of-the-court brief in the case for the California-based First Amendment Coalition. The brief was joined by a coalition of media organizations and open government advocates, including the Reporters Committee for Freedom of the Press, the Los Angeles Times and The Associated Press.

The licensing fees can be up to “hundreds of thousands of dollars,” depending on how much data is being requested, said Peter Scheer, executive director of the First Amendment Coalition. "If you want information on one property, it’s a lot less. If you have an interest, as a journalist would, in the entire county, it’s priced so you could have to pay north of six figures.”

The decision could also create confusion in California, where, in 2009, the Court of Appeal (6th Dist.) held, in County of Santa Clara v. Superior Court, that GIS-formatted electronic mapping records must be released to the public under the public records act.

“It’s a very unfortunate and wrong-headed decision in every possible way,” Scheer said. “It reflects the view of data that prevailed in the 1970s and 1980s, the idea that government should harvest or create data sets and then make them available exclusively to the highest bidder, denying them to the public more broadly. The modern view is that making this data available to the public will result in the creation of valuable new resources, including applications we can’t even imagine.”

“We are in an age where in order to truly understand what the government is doing, you need to be on the same page as the government,” Matteo-Boehm said. “And people don’t deal in pieces of paper anymore. They deal increasingly in electronic formats. That’s how the government conducts its business and that’s what people need to properly oversee their government. Delivering boxes and boxes of pieces of paper really does a person no good.”

Matteo-Boehm said the decision could adversely affect the way journalists keep track of the local governments. Counties are increasingly using mapping systems in their work, and citizens will see “a vast diminishment in the ability of journalists to be able to use public, electronic mapping data to inform the public about what the government is doing. . . . I think it would be very bad if this decision were to stand.”