Sierra Club v. Superior Court

Filed 7/8/13
IN THE SUPREME COURT OF CALIFORNIA
SIERRA CLUB, )
)
Petitioner, )
) S194708
v. )
) Ct.App. 4/3 G044138
THE SUPERIOR COURT OF ORANGE )
COUNTY, ) Orange County
) Super. Ct. No. 134941
Respondent; )
)
COUNTY OF ORANGE, )
)
Real Party in Interest. )
___________________________________ )
Like many counties in California, Orange County (the County) maintains a large
database of information about land parcels in a geographic information system (GIS) file
format. With this database, called the OC Landbase, a user with appropriate software can
create a layered digital map containing information for over 640,000 specific parcels of
land in Orange County, including geographic boundaries, assessor parcel numbers, street
addresses, and links to additional information on the parcel owners. The issue in this
case is whether the OC Landbase is subject to disclosure in a GIS file format at the actual
cost of duplication under the California Public Records Act or whether, as the County
contends, it is covered by the statute‘s exclusion of ―[c]omputer software‖ (Gov. Code,
§ 6254.9, subd. (a)) — a term that ―includes computer mapping systems‖ (id., § 6254.9,
subd. (b)) — from the definition of a public record. We hold that although GIS mapping
software falls within the ambit of this statutory exclusion, a GIS-formatted database like
the OC Landbase does not. Accordingly, such databases are public records that, unless
otherwise exempt, must be produced upon request at the actual cost of duplication.
1
I.
In June 2007, petitioner Sierra Club sent a letter to the Orange County Assessor
requesting a copy of the OC Landbase pursuant to the California Public Records Act
(PRA). Amici curiae representing a variety of media and open-government groups
explain the functionality and value of the database at issue: ―Using software available on
the open market and the GIS-formatted landbase that is at issue in this case, any
interested person can layer other publicly available electronic datasets on top of the
landbase and perform a computer-assisted analysis of those datasets in ways that are
simply not possible without the base layer. . . . [¶] For example . . . a property owner can
use GIS-formatted landbase data to locate other similar parcels and see whether [the
owner‘s] taxes are higher or lower than those being paid by others, or to determine
whether zoning decisions are similar as to comparable properties, which in turn can shed
light on the fairness of a government‘s taxing or zoning decisions. . . . [P]ublic
dissemination of GIS-formatted mapping data is also critical to the non-profit sector‘s
ability to monitor and respond to government actions involving real property. For
example, Petitioner Sierra Club sought 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.‖
Sierra Club‘s request began a lengthy exchange between the two parties concerning
the public record status of the OC Landbase. In March 2009, the County agreed to produce
records containing the information underlying the OC Landbase, including assessment
rolls, parcel maps, tract maps, survey records, lot line adjustments, and transfer deeds. The
County offered to provide such records in Adobe PDF electronic format or as printed paper
copies. However, the County took the position that the PRA did not require it to disclose
the same records in a GIS file format and that it would provide the records in that format
only if Sierra Club paid a licensing fee and agreed to the license‘s restrictions on disclosure
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and distribution. According to the County, the licensing agreement enables the County to
recoup a portion of the substantial costs it incurs to develop and maintain the OC
Landbase. A 2009 declaration by the County‘s surveyor reported that the County had spent
over $3 million in the previous five years to maintain the OC Landbase. According to
Sierra Club‘s expert, the County‘s licensing policy is different from the practice of most
counties in California: 47 of the state‘s 58 counties, including Los Angeles County,
provide access to GIS-formatted parcel base maps as public records. If the OC Landbase
must be disclosed as a public record, the County could charge Sierra Club only the actual
cost of duplication. If it is not, the County has the option to license the database according
to the terms of its licensing policy.
Sierra Club sought a writ of mandate from the superior court to compel the County
to provide the OC Landbase in a GIS file format as a public record for a fee covering
only the direct cost of duplication, with no requirement that Sierra Club comply with the
licensing agreement. Before ruling, the superior court permitted extensive briefing from
both parties and conducted a two-day evidentiary hearing. The hearing focused on the
County‘s claim that the OC Landbase was excluded from the PRA‘s definition of a public
record because it fell within the statutory exclusion for ―computer software,‖ a term that
―includes computer mapping systems.‖ (Gov. Code, § 6254.9, subds. (a), (b) (hereafter
section 6254.9(a) and section 6254.9(b)); all further undesignated statutory references are
to the Government Code.)
Before the hearing, the parties stipulated that the OC Landbase refers to the
County‘s parcel data in a GIS file format. They defined ―GIS file format‖ to mean ―that
the geographic data can be analyzed, viewed, and managed with GIS software, and it
includes formats such as ESRI Shape Files, Modular GIS Environment (‗MGE‘), and
Oracle Spatial.‖ Although the County uses the term ―Landbase‖ internally to refer to its
entire mapping system — not only the data but also the software used to run it — the
County confirmed at the hearing that the term ―Landbase,‖ when used externally, refers
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only to the parcel map data held in a GIS file format. The parties agree that ―[t]he OC
Landbase in the format the Sierra Club has requested, and in which it is currently
distributed to OC Landbase licensees, does not contain programs, routines, and symbolic
languages that control the functioning of computer hardware and direct its operation.‖
The County relies on software obtained from Oracle to create and access the OC
Landbase. If the OC Landbase is produced in a GIS file format, Sierra Club must use its
own GIS software to access the data.
Following the evidentiary hearing, the superior court issued an order denying the
petition for writ of mandate, along with a 16-page statement of decision. The court found
that the County ―offered persuasive testimony and evidence that the term ‗GIS‘ refers to
‗an integrated collection of computer software and data used to view and manage
information about geographical places, analyze spatial relationships and model spatial
processes.‘ ‖ The court further ―credit[ed] the County‘s evidence and the testimony of
witnesses that the OC Landbase in a GIS file format is part of a computer mapping
system.‖ ―To that end, the OC Landbase in GIS file format is not a public record, but
falls within Section 6254.9‘s exception to the PRA‘s general rules of disclosure.‖ On that
basis, the superior court denied Sierra Club‘s petition for writ of mandate.
On appeal, the Court of Appeal affirmed. Finding the statutory language
ambiguous, the Court of Appeal determined that the legislative history of section 6254.9
supported the County‘s position that GIS-formatted files fall within the meaning of
―computer mapping system.‖ Based on its review of the legislative history and purpose
of section 6254.9, the Court of Appeal concluded that the County met its burden to prove
that the OC Landbase was not a public record subject to disclosure.
We granted review and now reverse.
II.
The PRA and the California Constitution provide the public with a right of access
to government information. As this court has explained: ―Openness in government is
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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.‘ [Citation.]‖ (International Federation of Professional & Technical Engineers,
Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 328–329 (Local 21).) In
adopting the PRA, the Legislature declared that ―access to information concerning the
conduct of the people‘s business is a fundamental and necessary right of every person in
this state.‖ (§ 6250.) ―As the result of an initiative adopted by the voters in 2004, this
principle is now enshrined in the state Constitution . . . .‖ (Local 21, at p. 329.) The
California Constitution, article I, section 3, subdivision (b)(1) provides: ―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.‖
The PRA applies to ―public records,‖ defined as ―any writing containing
information relating to the conduct of the public‘s business prepared, owned, used, or
retained by any state or local agency regardless of physical form or characteristics.‖
(§ 6252, subd. (e).) In this case, the County‘s offer to produce alternative records with
the information underlying the OC Landbase implicitly recognizes that the information
within the OC Landbase constitutes public records subject to disclosure unless otherwise
exempt from the PRA. What the parties dispute is whether the OC Landbase in a GIS file
format is a public record that must be disclosed in that format pursuant to the PRA.
The format of information is not generally determinative of the public record
status of government information. A 2000 amendment to the PRA makes electronic data
available in whatever format it is normally maintained by the agency. (§ 6253.9, added
by Stats. 2000, ch. 982, § 2, p. 7142.) Section 6253.9 provides in relevant part: ―(a)
Unless otherwise prohibited by law, any agency that has information that constitutes an
5
identifiable public record not exempt from disclosure pursuant to this chapter that is in an
electronic format shall make that information available in an electronic format when
requested by any person and, when applicable, shall comply with the following: [¶] (1)
The agency shall make the information available in any electronic format in which it
holds the information. [¶] (2) . . . The cost of duplication shall be limited to the direct
cost of producing a copy of a record in an electronic format.‖ (§ 6253.9, subd. (a)(1), (2)
(hereafter section 6253.9(a)(1) and section 6253.9(a)(2)).) Section 6253.9 further
provides: ―Nothing in this section shall be construed to require the public agency to
release an electronic record in the electronic form in which it is held by the agency if its
release would jeopardize or compromise the security or integrity of the original record or
of any proprietary software in which it is maintained.‖ (§ 6253.9, subd. (f).)
However, a separate provision of the PRA, section 6254.9(a), excludes
―[c]omputer software‖ from the definition of a public record. Section 6254.9(b) says,
― ‗computer software‘ includes computer mapping systems, computer programs, and
computer graphics systems.‖ The question before us is whether the term ―computer
software,‖ as used in section 6254.9, encompasses the OC Landbase in a GIS file format.
If so, then the GIS-formatted OC Landbase is not a public record subject to disclosure; if
not, then it is a public record subject to disclosure unless otherwise exempt under the
PRA.
A.
When we interpret a statute, ―[o]ur fundamental task . . . is to determine the
Legislature‘s intent so as to effectuate the law‘s purpose. We first examine the statutory
language, giving it a plain and commonsense meaning. We do not examine that language
in isolation, but in the context of the statutory framework as a whole in order to
determine its scope and purpose and to harmonize the various parts of the enactment. If
the language is clear, courts must generally follow its plain meaning unless a literal
interpretation would result in absurd consequences the Legislature did not intend. If the
6
statutory language permits more than one reasonable interpretation, courts may consider
other aids, such as the statute‘s purpose, legislative history, and public policy.‖
(Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733,
737.) ―Furthermore, we consider portions of a statute in the context of the entire statute
and the statutory scheme of which it is a part, giving significance to every word, phrase,
sentence, and part of an act in pursuance of the legislative purpose.‖ (Curle v. Superior
Court (2001) 24 Cal.4th 1057, 1063.)
In this case, our usual approach to statutory construction is supplemented by a rule
of interpretation that is specific to the issue before us. In 2004, California voters
approved Proposition 59, which amended the state Constitution to provide a right of
access to public records. As noted, article I, section 3, subdivision (b)(1) provides: ―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.‖ Subdivision (b)(2) provides guidance on
the proper construction of statutes affecting this right of access: ―A statute, court rule, or
other authority, including those in effect on the effective date of this subdivision, shall be
broadly construed if it furthers the people‘s right of access, and narrowly construed if it
limits the right of access.‖ In addition, subdivision (b)(5) provides: ―This subdivision
does not repeal or nullify, expressly or by implication, any constitutional or statutory
exception to the right of access to public records or meetings of public bodies that is in
effect on the effective date of this subdivision, including, but not limited to, any statute
protecting the confidentiality of law enforcement and prosecution records.‖ (Cal. Const.,
art. I, § 3, subd. (b).)
Sierra Club does not independently challenge the denial of access to the GIS-
formatted OC Landbase as a constitutional violation if disclosure is not required by the
PRA, and in light of article I, section 3, subdivision (b)(5), we may not countermand the
Legislature‘s intent to exclude or exempt information from the PRA‘s disclosure
7
requirements where that intent is clear. But to the extent that legislative intent is
ambiguous, the California Constitution requires us to ―broadly construe[]‖ the PRA to the
extent ―it furthers the people‘s right of access‖ and to ―narrowly construe[]‖ the PRA to
the extent ―it limits the right of access.‖ (Cal. Const., art. I, § 3, subd. (b)(2).) ―Given the
strong public policy of the people‘s right to information concerning the people‘s business
(Gov. Code, § 6250), and the constitutional mandate to construe statutes limiting the right
of access narrowly (Cal. Const., art. I, § 3, subd. (b)(2)), ‗all public records are subject to
disclosure unless the Legislature has expressly provided to the contrary.‘ ‖ (Office of
Inspector General v. Superior Court (2010) 189 Cal.App.4th 695, 709, quoting Williams
v. Superior Court (1993) 5 Cal.4th 337, 346, italics added by the Court of Appeal; see
also Local 21, supra, 42 Cal.4th at p. 348 (conc. & dis. opn. by Kennard, J.) [courts must
narrowly construe any statute limiting the people‘s right of access to public records].)
B.
With these principles in mind, we turn to the relevant statutory language. Section
6254.9(a) provides: ―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.‖ Section 6254.9(b) says: ―As used in this section,
‗computer software‘ includes computer mapping systems, computer programs, and
computer graphics systems.‖ Further, section 6254.9, subdivision (d) (hereafter section
6254.9(d)) provides: ―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.‖ We must decide whether the
statutory exemption for ―[c]omputer software‖ (§ 6254.9(a)) — a term that ―includes
computer mapping systems‖ (§ 6254.9(b)) — encompasses mapping data in a GIS file
format, as the County contends, or only GIS mapping software, as Sierra Club contends.
In construing ―computer mapping systems‖ in section 6254.9(b), neither party has
offered any standard definition of the term, and dictionary definitions provide little help.
8
The Court of Appeal relied on a definition of the word ―system‖ as a ― ‗complex unity
formed of many often diverse parts subject to a common plan or serving a common
purpose‘ ‖ (quoting Webster‘s 3d New Internat. Dict. (2002) p. 2322) to conclude that ―a
computer mapping system should include more than solely a computer program
component.‖ Similarly, the County argues that a computer mapping system includes not
only mapping software but also databases in a format compatible with mapping software,
since such formatting, unlike a printed copy or PDF version of the underlying data,
enables a database to function as part of a computer mapping system. But this
interpretation, though reasonable, is not compelled by the ordinary meaning of ―system,‖
a rather general word that is just as reasonably construed to refer only to mapping
software.
Part of the challenge in construing ―computer mapping system‖ is that the
technology for geographic information management and analysis has evolved
significantly since its inception in the 1960s. As recounted by Sierra Club‘s expert, early
computer graphics systems could only create drawings with lines and other geometric
features. At the next stage, computer-aided drafting systems allowed users to create more
precise engineering drawings. Next came automated mapping systems, also called
computer-aided mapping, which allowed users to link their drawings with coordinating
degrees representing the surface of the earth. Later programs allowed users to connect
automated mapping (AM) systems with facility management (FM) systems. These
AM/FM systems linked drawings with informational databases, including parcel
databases. Finally, AM/FM systems were supplanted by modern GIS systems that allow
complex geospatial and topographical analysis.
According to the County‘s deputy surveyor, the term ―computer mapping system‖
as used in 1988, when section 6254.9 was enacted, is simply a precursor to GIS
technology and necessarily includes both software and related databases. Sierra Club‘s
expert counters that while the term ―GIS‖ can be used broadly today to refer to both
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software and GIS-formatted data, the term ―computer mapping system‖ as used in the
1980s referred only to a system of linked software modules and did not include any
related databases. Both parties point to a 2006 text defining ―GIS‖ as ―[a]n integrated
collection of computer software and data used to view and manage information about
geographic places, analyze spatial relationships and model spatial processes. A GIS
provides a framework for gathering and organizing spatial data and related information so
that it can be displayed and analyzed.‖ (Wade & Sommer, A to Z GIS: An Illustrated
Dictionary of Geographic Information Systems (2d ed. 2006) p. 90.) But a 2006
definition of ―GIS‖ does not shed light on what the Legislature meant by the term
―computer mapping system‖ in 1988.
Although the term ―computer mapping system‖ by itself is susceptible of either
Sierra Club‘s or the County‘s interpretation, we must also consider the statutory context
in which the term appears. Section 6254.9(b) refers to ―computer mapping systems‖ as
an item ―include[d]‖ in the term ―computer software.‖ We agree with Sierra Club that
because the statute refers to ―computer mapping systems‖ as a species of ―computer
software,‖ the term ―computer mapping systems‖ should be construed in light of the
meaning of ―computer software.‖
According to Sierra Club, ―the plain meaning of the subject term ‗software‘ in
subdivision (a) is commonly understood to be distinct from the data upon which the
software operates.‖ Dictionary definitions contemporaneous with the 1988 adoption of
section 6254.9 tend to support Sierra Club‘s view. (See Webster‘s 9th New Collegiate
Dict. (1987) p. 1121 [defining ―software‖ as ―1 : The entire set of programs, procedures,
and related documentation associated with a system and esp. a computer system; specif :
computer programs . . .‖]; 15 Oxford English Dict. (2d ed. 1989) p. 937 [defining
―software‖ as ―a. The programs and procedures required to enable a computer to perform
a specific task, as opposed to the physical components of the system . . . b. esp. The body
of system programs, including compilers and library routines, required for the operation
10
of a particular computer and often provided by the manufacturer, as opposed to program
material provided by a user for a specific task.‖]; American Heritage Dict. (3d ed. 1992)
p. 1713 [defining ―software‖ as ―The programs, routines, and symbolic languages that
control the functioning of the hardware and direct its operation . . . .‖].) These definitions
of ―software‖ do not encompass user-generated data in a format compatible with specific
software.
The Legislature gave a similar meaning to the term ―computer software‖ in 2004
when it enacted Business and Professions Code section 22947.1, subdivision (c), which
defines ―computer software‖ as ―a sequence of instructions written in any programming
language that is executed on a computer.‖ (Stats. 2004, ch. 843, § 2, p. 6420.) On the
other hand, the Legislature in 1987 — nine months before the adoption of Government
Code section 6254.9 — defined ―computer program or software‖ more broadly in the
Penal Code to mean ―a set of instructions or statements, and related data, that when
executed in actual or modified form, cause a computer, computer system, or computer
network to perform specified functions.‖ (Pen. Code, § 502, subd. (b)(3), italics added;
Stats. 1987, ch. 1499, § 3, p. 5782.) Thus, although the ordinary meaning of ―computer
software‖ tends to support Sierra Club‘s contention that the term ―computer mapping
systems‖ in section 6254.9(b) refers only to mapping software, the Legislature
contemporaneously used ―computer software‖ elsewhere to mean not only a program or
sequence of instructions but also related data.
Whether the Legislature intended a similarly broad meaning of ―computer
software‖ in section 6254.9 is illuminated by considering another feature of the statutory
context — namely, section 6254.9(b)‘s reference to ―computer programs‖ and ―computer
graphics systems‖ in addition to ―computer mapping systems‖ as forms of computer
software. (See § 6254.9(b) [―As used in this section, ‗computer software‘ includes
computer mapping systems, computer programs, and computer graphics systems.‖].)
―[W]hen a statute contains a list or catalogue of items, a court should determine the
11
meaning of each by reference to the others, giving preference to an interpretation that
uniformly treats items similar in nature and scope. [Citations.] In accordance with this
principle of construction, a court will adopt a restrictive meaning of a listed item if
acceptance of a more expansive meaning would make other items in the list unnecessary
or redundant, or would otherwise make the item markedly dissimilar to the other items in
the list.‖ (Moore v. California State Bd. of Accountancy (1992) 2 Cal.4th 999, 1011–
1012.)
The County adopts the Court of Appeal‘s view that interpreting ―computer
mapping systems‖ to encompass only mapping software would make that term
superfluous in light of section 6254.9(b)‘s inclusion of ―computer programs‖ as a form of
computer software. Although this argument is not without force, Sierra Club responds
that ―one could just as easily argue that ‗computer mapping systems‘ are also ‗computer
graphics systems[,]‘ a term that is also used in § 6254.9(b). Thus, even if the term
‗computer mapping systems‘ in § 6254.9(b) was construed to include the data such
mapping systems operate upon, the term would remain surplusage.‖
Further, Sierra Club contends, if a computer mapping system includes not only
mapping software but also parcel data in a compatible format, then presumably a
computer graphics system would include not only graphics software but also graphics
data in a compatible format — a construction that ―would arguably exclude from the
PRA all computer data operated upon by programs using a graphical interface such as
those found on Microsoft Windows or Apple Macintosh computers . . . .‖ Amicus curiae
Electronic Frontier Foundation similarly notes that ―computer graphics systems,‖ under
the County‘s reading, would include public databases of mug shots or other images
consisting of files (for example, JPEG files) formatted to be viewed and manipulated by
graphics software. As a practical matter, such an interpretation would tend to make the
mandate in section 6253.9(a)(1) that ―[t]he agency shall make the information available
in any electronic format in which it holds the information‖ a virtual nullity or, at least, a
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limited exception rather than a general rule. Almost all data stored in computers are
formatted in some manner to be used with application software. It seems implausible that
the Legislature — having expressly stated that ―information . . . stored in a computer‖ is a
type of public record subject to disclosure (§ 6254.9(d)) and having provided for access
to such information ―in any electronic format in which [the agency] holds the
information‖ (§ 6253.9(a)(1)) — would have intended to exclude large categories of
computer databases (mapping and graphics) merely because the files they contain are
formatted to be read and manipulated by mapping and graphics software.
In sum, the analysis above leads us to conclude that although the term ―computer
mapping systems‖ by itself is ambiguous, the ordinary meaning of ―computer software‖
supports Sierra Club‘s contention that the public records exemption for computer
mapping systems covers GIS mapping software but not GIS-formatted data. It is true that
the Legislature has elsewhere used the term ―computer software‖ more broadly to include
―related data.‖ (Pen. Code, § 502, subd. (b)(3).) But such an interpretation — applied
not only to ―computer mapping systems‖ but also in parallel to ―computer graphics
systems‖ in section 6254.9(b) — would substantially undermine section 6253.9(a)(1)‘s
general mandate that ―[t]he agency shall make the information available in any electronic
format in which it holds the information.‖ Accordingly, we believe the better view,
based on statutory text and context, is that GIS-formatted databases are not covered by
the statutory exclusion of computer software, including computer mapping systems, from
the definition of a public record.
C.
Although both parties rely on legislative history in support of their respective
positions, our review of the history does not reveal anything decisive on the issue before
us.
In considering the history of the statutes at issue, we grant the requests of the
parties and amici curiae to take judicial notice of legislative history documents for
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Assembly Bill No. 3265 (1987–1988 Reg. Sess.), Assembly Bill No. 1293 (1997–1998
Reg. Sess.), Assembly Bill No. 2799 (1999–2000 Reg. Sess.), Assembly Bill No. 1014
(2001–2002 Reg. Sess.), and Assembly Bill No. 1978 (2007–2008 Reg. Sess.); ballot
materials concerning Proposition 59 (Gen. Elec. (Nov. 2, 2004)); the American Heritage
Dictionary‘s definition of ―program‖; and Board of Supervisors of Orange County,
Resolution No. 11-196 (Dec. 13, 2011). We deny Sierra Club‘s requests to take judicial
notice of a ―GIS Needs Assessment Study,‖ an excerpt from Ceruzzi, A History of
Modern Computing (1998), and a LexisNexis report of amendments to the PRA, as none
is the proper subject of judicial notice.
Section 6254.9 was enacted in 1988. (Stats. 1988, ch. 447, § 1, p. 1836.) As
introduced on February 11, 1988, Assembly Bill No. 3265 (1987–1988 Reg. Sess.)
provided in relevant part: ―Nothing in this chapter prohibits an agency from selling
proprietary information or requiring a licensing agreement for payment of royalties to the
agency prior to any subsequent sale, distribution, or commercial use of the proprietary
information by any person receiving the information. For purposes of this subdivision,
‗proprietary information‘ includes computer readable data bases, computer programs, and
computer graphics systems.‖ (Id. at p. 2.) An amendment changed the term ―proprietary
information‖ to ―computer software‖ and added a provision that ―[n]othing in this section
is intended to affect the public record status of information merely because it is stored in
a computer.‖ (Assem. Bill No. 3265, as amended Apr. 4, 1988, p. 2.) A Senate
amendment replaced the term ―computer readable data bases‖ with ―computer mapping
systems.‖ (Sen. Amend. to Assem. Bill No. 3265 (1987–1988 Reg. Sess.) June 9, 1988,
p. 2.)
The bill was sponsored by the City of San Jose. A report by the Assembly
Committee on Governmental Organization noted that the city had ―developed various
computer readable mapping systems, graphics systems, and other computer programs for
civic planning purposes. A number of utility companies, engineering firms, private
14
consultants and other commercial interests are requesting the city‘s software under the
California Public Records Act.‖ (Assem. Com. on Governmental Organization, analysis
of Assem. Bill No. 3265 (1987–1988 Reg. Sess.) as amended Apr. 4, 1988, p. 1.) The
report further said, ―The City is concerned about recouping the cost of developing the
software.‖ (Ibid.)
The Department of Finance originally opposed the bill, in part because the
inclusion of ―computer readable data bases‖ in the definition of ―computer software‖ was
contradictory to the intent expressed in the provision of the bill that said ―[n]othing in this
section is intended to affect the public record status of information merely because it is
stored in a computer.‖ (Dept. Finance, analysis of Assem. Bill No. 3265 (1987–1988
Reg. Sess.) as amended Apr. 4, 1988, p. 2.) The Department of Finance dropped its
opposition after the Senate amendment on June 9, 1988 changed ―computer readable data
bases‖ to ―computer mapping systems‖ and addressed other concerns about the scope of
an agency‘s licensing authority. (Sen. Amend. to Assem. Bill No. 3265 (1987–1988 Reg.
Sess. June 9, 1988, p.2; see Dept. Finance, analysis of Assem. Bill No. 3265 (1987–1988)
as amended June 15, 1988, p. 1.)
The legislative history reveals no attempt to define ―computer mapping system‖
after the term was introduced by the June 9, 1988 amendment. Instead, various terms
were used loosely to explain the scope and effect of the bill. For example, an Assembly
report concurring in the final Senate amendments said that the City of San Jose ―has
developed computer readable mapping systems‖ and that the ―city is concerned about
recouping the cost of developing the software.‖ (Concurrence in Sen. Amends. to
Assem. Bill No. 3265 (1987–1988 Reg. Sess.) as amended June 15, 1998, p. 1, italics
added.) The same report noted that the bill ―draws a distinction between computer
software and computer-stored information‖ (id. at p. 2, italics added), with the latter but
not the former constituting a public record. By contrast, the Department of Finance‘s
final fiscal analysis of the bill noted: ―The potential revenue generated by the sale of
15
computer programs, graphics, and information data bases could be substantial . . . .‖
(Dept. Finance, analysis of Assem. Bill No. 3265 (1987–1988 Reg. Sess.) as amended
June 15, 1988, p. 1, italics added.) Similarly, a Republican analysis for the Assembly
Committee on Governmental Organization stated that the final amended bill would
―allow agencies to recover development and maintenance costs of computer software by
selling or licensing computer programs and data bases that have been developed
sometimes at considerable public expense.‖ (Assem. Republican Caucus, analysis of
Assem. Bill No. 3265 (1987–1988 Reg. Sess.) as amended June 15, 1988, p. 1, italics
added.)
The Court of Appeal‘s decision below relied on the fact that the City of San Jose
originally proposed the bill to include ―computer readable data bases‖ to suggest that the
bill was intended to reach databases like the OC Landbase. The Court of Appeal noted
that the legislative file of the Senate Committee on Governmental Organization included
a memorandum from the city, which stated: ―The City of San Jose, like many other
government agencies[,] has developed various computer readable data bases, computer
programs, computer graphics systems and other computer stored information at
considerable research and development expense. For example, the City‘s Department of
Public Works has recently completed development of a data base for a computer mapping
system known as the Automated Mapping System (AMS). [¶] The AMS is the product
of eight years of efforts on the part of Public Works to collect and store on computer
magnetic tape, city wide information regarding the location of public improvements and
natural features. This wide range of data can be arranged in various ways to produce
many types of maps for specialized uses, such as fire response, sewer collection, or police
beat maps. Public Works estimates that development costs to date have exceeded $2
million dollars.‖ (City Atty. Joan R. Gallo, City of San Jose mem. (Jan. 19, 1988)
[legislative proposal for authority to sell or license proprietary information].)
16
It may be that the City of San Jose intended the bill to exclude ―computer readable
data bases‖ from the definition of a public record. However, ― ‗[i]n construing a statute
we do not consider the objective of an authoring legislator when there is no reliable
indication that the Legislature as a whole was aware of that objective and believed the
language of the proposal would accomplish it.‘ ‖ (People v. Garcia (2002) 28 Cal.4th
1166, 1175–1176, fn. 5.) The City of San Jose‘s memorandum is not such a ―reliable
indication.‖ Moreover, we decline to place great weight on the city‘s intent since the
Legislature subsequently amended the bill to specifically remove the city‘s proposed
reference to ―computer readable data bases.‖ Ultimately, the legislative history does not
clearly indicate whether the replacement term ―computer mapping systems‖ was intended
to eliminate the exclusion for ―computer readable data bases‖ of all kinds or to narrow
the exclusion so that it would cover databases compatible with computer mapping
systems but not other databases.
In sum, the legislative history of section 6254.9 reveals a significant change in the
scope of the bill from the time it was introduced in February 1988 until it was enacted in
June 1988. The legislation evolved from a bill solely concerned with allowing agencies
to recoup the cost of developing proprietary information to a statute that balanced such
concerns with a general intent to maintain the public record status of electronically stored
information. The broad terms ―proprietary information‖ and ―computer readable data
bases‖ were replaced with the narrower terms ―computer software‖ and ―computer
mapping systems,‖ respectively. And a separate section was added to clarify that the
statute was not intended to exclude information from the definition of a public record
simply because it is stored in a computer. Although the trajectory of the bill appears to
recognize a general distinction between software and data, the legislative history does not
speak to the particular data at issue here: a database with format characteristics specific
to computer mapping systems. In the end, it is unclear whether the Legislature intended
the term ―computer mapping systems‖ to exclude both mapping software and parcel data
17
in a system-compatible format from the definition of a public record, or to remove all
―computer readable data bases‖ from the ambit of the exclusion.
Nor does the Legislature‘s 2000 addition of section 6253.9, which specifically
governs the disclosure of electronic records, help to resolve the matter. (See Stats. 2000,
ch. 982, § 2, p. 7142, added by Assem. Bill No. 2799 (1999–2000 Reg. Sess.) (Assembly
Bill 2799).) As noted, section 6253.9(a) says: ―Unless otherwise prohibited by law, any
agency that has information that constitutes an identifiable public record not exempt from
disclosure pursuant to this chapter that is in an electronic format shall make that
information available in an electronic format when requested by any person . . . .‖
Assembly Bill 2799 was sponsored by the California Newspaper Publishers Association
―to ensure quicker, more useful access to public records.‖ (Assem. Com. on
Governmental Organization, analysis of Assem. Bill No. 2799 (1999–2000 Reg. Sess.) as
introduced Feb. 28, 2000, p. 2.) As originally introduced, the bill did not specify that it
applied only to electronic records already subject to disclosure under the PRA, prompting
opposition from various public entities intent on preserving the exclusion for ―proprietary
software‖ in section 6254.9(a). (Sen. Com. on Judiciary, analysis of Assem. Bill
No.2799 (1999–2000 Reg. Sess.) as amended June 22, 2000, p. 10 (Senate Analysis).)
This concern was remedied through amendments clarifying that the bill applied only to
information otherwise subject to disclosure. (Ibid.) In particular, the Senate Judiciary
Committee noted that Assembly Bill 2799 as amended allows agencies to reject any
request that would require an agency to release proprietary software along with the
requested records. (Sen. Analysis, p. 5.)
Meanwhile, other agencies expressed concern that because the bill would require
electronic disclosure of ―massive databases,‖ it would require significant amounts of staff
time to redact nondisclosable information and would increase the risk of unintentional
release of nondisclosable information when compared with nonelectronic production.
(Assem. Com. on Governmental Organization, analysis of Assem. Bill No. 2799 (1999–
18
2000 Reg. Sess.) as amended Apr. 27, 2000, pp. 2–3.) The Legislature does not appear to
have adopted any amendments in response to this concern, and documents in the
Governor‘s Chaptered Bill File suggest that these concerns remained in effect through the
final enrolled bill. (See, e.g., Dept. Information & Technology, Enrolled Bill Rep. on
Assem. Bill No. 2799 (1999–2000 Reg. Sess.) Sept. 25, 2000, p. 2.)
As with section 6254.9, the legislative history of section 6253.9 reveals no clear
answer to the question before us. On one hand, we can infer that the Legislature
recognized a distinction between software and data, since it amended Assembly Bill 2799
to protect proprietary software while rejecting agency concerns that the disclosure of
databases in an electronic format might require significant staff time. On the other hand,
even if the Legislature adopted section 6253.9 on the premise that electronic databases
are generally subject to disclosure, it does not follow that a GIS-formatted database, in
particular, is also subject to disclosure in light of section 6254.9(b)‘s exclusion of
―computer mapping systems‖ from the definition of a public record.
Because legislative history is inconclusive on the question presented, our review
of the history does not alter the conclusion we previously reached. Considering the
relevant terms of section 6254.9 by themselves and in their statutory context, we believe
the public records exemption for ―[c]omputer software‖ (§ 6254.9(a)), a term that
―includes computer mapping systems‖ (§ 6254.9(b)), does not cover GIS-formatted
databases like the OC Landbase at issue here.
D.
Any remaining doubt about the proper interpretation of section 6254.9 in this case
is dispelled by the interpretive rule in article I, section 3, subdivision (b)(2), of the
California Constitution: ―A statute, court rule, or other authority, including those in
effect on the effective date of this subdivision, shall be broadly construed if it furthers the
people‘s right of access, and narrowly construed if it limits the right of access.‖
19
To the extent that the term ―computer mapping system‖ is ambiguous, the
constitutional canon requires us to interpret it in a way that maximizes the public‘s access
to information ― ‗unless the Legislature has expressly provided to the contrary.‘ ‖ (Office
of Inspector General v. Superior Court, supra, 189 Cal.App.4th at p. 709.) As explained
above, we find nothing in the text, statutory context, or legislative history of the term
―computer mapping system‖ that allows us to say the Legislature clearly sought to
exclude GIS-formatted parcel data from the definition of a public record when it can be
disclosed without any accompanying software. Applying the interpretive rule set forth in
article I, section 3, subdivision (b)(2), we must conclude that section 6254.9(b)‘s
exclusion of ―computer mapping systems‖ from the definition of a public record does not
encompass a parcel database in a GIS file format. Contrary to what the County contends,
this reading of the statute does not ―repeal or nullify‖ a ―statutory exception to the right
of access to public records‖ in contravention of article I, section 3, subdivision (b)(5).
Our holding simply construes the terms of section 6254.9 in light of the constitutional
mandate that a statute ―shall be . . . narrowly construed if it limits the right of access.‖
(Cal. Const., art. I, § 3, subd. (b)(2).)
We note that this interpretation is consistent with a 2005 opinion letter issued by
the Attorney General in response to a request by a member of the Assembly to determine
whether ―parcel boundary map data maintained in an electronic format by a county
assessor [is] subject to public inspection and copying under provisions of the California
Public Records Act[.]‖ (88 Ops.Cal.Atty.Gen. 153, 153 (2005).) The opinion letter
explained that ―the term ‗computer mapping systems‘ in section 6254.9 does not refer to
or include basic maps and boundary information per se (i.e., the basic data compiled,
updated, and maintained by county assessors), but rather denotes unique computer
programs to process such data using mapping functions — original programs that have
been designed and produced by a public agency.‖ (88 Ops.Cal.Atty.Gen. at p. 159.)
―Accordingly,‖ the Attorney General concluded, ―parcel map data maintained in an
20
electronic format by a county assessor does not qualify as a ‗computer mapping system‘
under the exemption provisions of section 6254.9‖ (88 Ops.Cal.Atty.Gen. at p. 159) and
must be provided upon request as a public record at a fee limited to the direct cost of
producing the copy (id. at pp. 163–164). As noted above, the record here indicates that
47 counties in California maintain GIS-formatted parcel base maps and provide access to
those GIS-formatted databases as public records. (Ante, at p. 3.) Of those 47 counties,
19 changed their fee policies following the Attorney General‘s opinion letter, according
to Sierra Club‘s expert.
Because section 6254.9(b) does not exclude GIS-formatted databases like the OC
Landbase from the definition of a public record, such databases are subject to disclosure
unless otherwise exempt from the PRA. Unlike the records at issue in County of Santa
Clara v. Superior Court (2009) 170 Cal.App.4th 1301, the County here does not argue
that the OC Landbase is subject to any other exemptions. The fact that the County
offered to produce the information underlying the database in an alternative format
suggests that no such exemption applies. Similarly, the County‘s general practice of
producing the OC Landbase to the public, albeit pursuant to a licensing agreement,
suggests that its contents do not implicate any of the confidentiality or other concerns
underlying the exemptions set forth in section 6254. Because the OC Landbase is not
excluded from the definition of a public record under section 6254.9(b), and because the
County does not argue that the database is otherwise exempt from disclosure, the County
must produce the OC Landbase in response to Sierra Club‘s request ―in any electronic
format in which it holds the information‖ (§ 6253.9(a)(1)) at a cost not to exceed the
direct cost of duplication (§§ 6253.9(a)(2), 6253, subd. (b)).
21
CONCLUSION
For the reasons above, we reverse the judgment of the Court of Appeal and
remand to that court with directions to remand to the superior court to issue a writ
consistent with this opinion.
LIU, J.
WE CONCUR: CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
22
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Sierra Club v. Superior Court
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 195 Cal.App.4th 1537Rehearing Granted
__________________________________________________________________________________
Opinion No. S194708
Date Filed: July 8, 2013
__________________________________________________________________________________
Court: Superior
County: Orange
Judge: James Di Cesare
__________________________________________________________________________________
Counsel:
Venkus & Associates, Sabrina D. Venkus and Dean Wallraff for Petitioner.
Holme Roberts & Owen, Bryan Cave, Rachel Matteo-Boehm, Katherine Keating and Leila Knox for Media and
Open Government, First Amendment Coalition, Freedom Communications, Inc., Publisher of the Orange County
Register, Los Angeles Times Communications LLC, The Associated Press, Bay Area News Group, Bloomberg
News, Courthouse News Service, Gannett Co., Inc., Hearst Corporation, Lee Enterprises, Incorporated, The
McClatchy Company, Patch Media Corporation, The San Francisco Examiner, Wired, American Society of News
Editors, Association of Capitol Reporters and Editors, California Newspaper Publishers Association, Digital Media
Law Project, Citizen Media Law Project, Electronic Frontier Foundation, First Amendment Coalition of Arizona,
National Freedom of Information Coalition, Openthegovernment.org, The Reporters Committee for Freedom of the
Press and Society of Professional Journalists as Amici Curiae on behalf of Petitioner.
M. Rhead Enion for Academic Researchers in Public Health, Urban Planning and Environmental Justice as Amici
Curiae on behalf of Petitioner.
Jack Cohen as Amicus Curiae on behalf of Petitioner.
Otten & Joyce, Victor J. Otten and Brigid Joyce for 212 GIS Professionals and 23 GIS Organizations as Amici
Curiae on behalf of Petitioner.
Meyer, Klipper & Mohr, Christopher A. Mohr, Michael R. Klipper, Colby F. Block; Coblentz, Patch, Duffy & Bass,
Jeffrey G. Knowles and Julia D. Greer for Consumer Data Industry Association, Corelogic, LexisNexis, The
National Association of Professional Background Screeners and the Software & Information Industry Association as
Amici Curiae on behalf of Petitioner.
Stanford Environmental Law Clinic, Deborah A. Sivas, Alicia E. Thesing, Leah J. Russin, Matthew H. Armsby and
Margaret Brennan for Advocates for the Environment as Amicus Curiae on behalf of Petitioner.
Page 2 – counsel continued – S194708
Counsel:
Mark Rumold for Electronic Frontier Foundation as Amici Curiae on behalf of Petitioner.
Michel & Associates and C. D. Michel for the Geographic Information Systems Community as Amici Curiae on
behalf of Petitioner.
Law Offices of Michael W. Stamp, Michael W. Stamp and Molly Erickson for The Open Monterey Project as
Amicus Curiae on behalf of Petitioner.
No appearance for Respondent.
Nicholas S. Chrisos, County Counsel, Mark D. Servino, Rebecca S. Leeds and Karen L. Christensen, Deputy
County Counsel, for Real Party in Interest.
Richards, Watson & Gershon and Ginetta L. Giovinco for California Assessors‘ Association as Amicus Curiae on
Behalf of Real Party in Interest.
Best Best & Krieger, Shawn Hagerty and Rebecca Andrews for League of California Cities and California State
Association of Counties as Amici Curiae on Behalf of Real Party in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Sabrina D. Venkus
Venkus & Associates
21 South California Street, Suite 204
Ventura, CA 93001
(805) 641-0247
Mark D. Servino
Deputy County Counsel
333 West Santa Ana Boulevard, Suite 407
Santa Ana, CA 92701
(714) 834-3300