Metropolitan News-Enterprise


Friday, February 6, 2009


Page 1


C.A.: Homeland Security Act Does Not Shield County Land Data


By SHERRI M. OKAMOTO, Staff Writer


The Sixth District Court of Appeal yesterday ruled that the Homeland Security Act did not protect Santa Clara County’s data depository on land boundaries and geographic data from disclosure under the California Public Records Act.

Federal prohibitions on the disclosure of protected confidential infrastructure information only apply to the recipients of such information, not the creators, the panel ruled in upholding Santa Clara Superior Court Judge James P. Kleinberg’s order compelling the county to release the information.

The California First Amendment Coalition—a self-described public interest organization advocating for government transparency and accountability—requested a copy of the county’s geographic information system basemap, a computer-generated mapping system which enables users to simultaneously view maps graphically and display additional data about various features shown on the maps, including parcel divisions, streets, assessor parcel information, jurisdictional boundaries, aerial photographs, and buildings.

After the county denied its request, the coalition filed a petition for writ of mandate.

Basemap Sold

Kleinberg found that the county had sold the basemap to 18 different entities, 15 of which were government entities, for a “significant fee” and required the recipients to enter into mutual non-disclosure agreements.

He rejected the county’s claim that the basemap was exempt from the Public Records Act, and ordered the county to provide the collation with the basemap at the county’s direct cost.

The county then sought writ relief, contending that the Critical Infrastructure Information Act and its accompanying regulations preempted the Public Records Act, and that under those superseding federal provisions, disclosure of the basemap was prohibited because it has been validated by the Department of Homeland Security as protected critical infrastructure information. 

In the alternative, the county argued that even if the Public Records Act was not preempted by federal law, its “catchall” exemption—which allows a government agency to withhold records if it can demonstrate that the public interest served by withholding the records clearly outweighs the public interest served by disclosure—shielded the basemap from disclosure.

It also posited that even if neither preemption nor the catchall exemption supported nondisclosure, the county should be allowed to demand end user agreements because the basemap was copyrightable, and that it should be allowed to recover more than its direct cost of providing the record.

Writing for the appellate court, Justice Richard J. McAdams explained that the Critical Infrastructure Information Act, part of the Homeland Security Act, authorizes the Department of Homeland Security to accept information relating to critical infrastructure—defined as “information not customarily in the public domain and related to the security of critical infrastructure or protected systems”—from the public, owners and operators of critical infrastructure, and state, local, and tribal governmental entities.

Disclosure Prohibited

The act provides that such voluntarily submitted critical infrastructure information shall not be made available to a state or local government pursuant to any state or local law requiring disclosure of such information.

McAdams noted the act distinguished between the receipt and provision of infrastructure information and reasoned that the federal statute’s prohibition on disclosure of protected confidential infrastructure information was inapplicable when the information was submitted by a county, and not to it.

Turning to the county’s Public Records Act argument, McAdams rejected the county’s assertion that the coalition had only a “hypothetical” interest in the basemap which was “minimal” because it could acquire the information by other means.

McAdams explained that the motive of the particular requester is irrelevant, and the critical issue is whether disclosure serves the public interest. 

Because access to the basemap would contribute to the public’s understanding of government activities, including the comparison of property tax assessments, issuance of permits, treatment of tax delinquent properties, equitable deployment of public services, issuance of zoning variances, McAdams reasoned the public had a “very real” interest in disclosure.

Even if the coalition had an alternate means to access the information sought, McAdams continued, it was not prohibited from obtaining the information under the Public Records Act, and the existence of an alternative did not wholly undermine the public interest in disclosure.

Although security concerns could be a valid factor in supporting nondisclosure, McAdams noted the trial court’s findings that the county had disseminated the basemap to others and inferred, as the trial court had, that the county would not have disseminated the basemap at all if security issues were of great importance.

McAdams added that the county’s financial interest in being able to sell its technology also did not compel nondisclosure.

Independently weighing the competing interests, McAdams concluded that the public interest in disclosure outweighed the public interest in nondisclosure. 

As for the county’s copyright claims, McAdams reasoned the Public Records Act’s mandate overrides a government agency’s ability to claim a copyright in its work unless the legislature has expressly authorized a public records exemption.

He further reasoned that the county could not condition release of the basemap on an end user or licensing agreement because unrestricted disclosure was required to effectuate the purposes of the Public Records Act.

However, the justice noted that government agencies may recover ancillary costs for duplicating electronic records in certain situations, and the parties disputed whether those provisions of the Public Records Act applied. Based on the parties’ opposing contentions and the lack of an explicit ruling by the trial court on the issue, McAdams concluded that remand was warranted on the question of costs.

Justices Franklin D. Elia and Nathan D. Mihara joined McAdams in his opinion.

The case is County of Santa Clara v. Superior Court (California First Amendment Coalition), 09 S.O.S. 723.


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