County of Santa Clara v. Superior Court of Santa Clara County

170 Cal.App.4th 1301

89 Cal. Rptr. 3d 374

COUNTY OF SANTA CLARA et al., Petitioners, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent CALIFORNIA FIRST AMENDMENT COALITION, Real Party in Interest.

No. H031658.

Court of Appeals of California, Sixth District.

February 5, 2009.

Ann Miller Ravel, County Counsel, and Robert A. Nakamae, Deputy County Counsel, for Petitioners.

Jennifer B. Henning for California State Association of Counties as Amicus Curiae on behalf of Petitioners.

No appearance for Respondent.

Holme Roberts & Owen, Roger Myers, Rachel Matteo-Boehm and Kyle Schriner for Real Party in Interest.

Davis Wright Tremaine, Mary Duffy Carolan and Jeff Glasser for California Newspaper Publishers Association, Los Angeles Times Communications LLC, Freedom Communications, Inc., Copley Press, Inc., The Bakersfield Californian, The Press-Enterprise, MediaNews Group, The Reporters Committee for Freedom of the Press and National Freedom of Information Coalition as Amici Curiae on behalf of Real Party in Interest.

Jenner & Block, Paul M. Smith, Iris E. Bennett, Daniel I. Weiner and Peter H. Hanna for The National Security Archive and Center for Democracy & Technology as Amici Curiae on behalf of Real Party in Interest.

Marcia Hoffmann for Electronic Frontier Foundation as Amicus Curiae on behalf of Real Party in Interest.

Meyer, Klipper & Mohr, Michael R. Klipper, Christopher A. Mohr; Coblentz Patch Duffy & Bass and Jeffrey G. Knowles for American Business Media, Choicepoint Asset Company LLC, First American CoreLogic, National Association of Professional Background Screeners, Real Estate Information Professionals Association, Reed Elsevier and Software & Information Industry Association as Amici Curiae on behalf of Real Party in Interest.

Timothy S. Guster for Seventy Seven GIS Professionals and Great Oaks Water Co. as Amici Curiae on behalf of Real Party in Interest.

OPINION

McADAMS, J.

This writ proceeding raises weighty questions of first impression, which illuminate tensions between federal homeland security provisions and our state's open public record laws. This proceeding also requires us to consider a state law exemption allowing nondisclosure in the public interest; the impact of copyright claims on disclosure; and the extent to which charges for electronic public records may exceed reproduction costs. After analyzing these important and novel issues, we conclude that the law calls for unrestricted disclosure of the information sought here, subject to the payment of costs to be determined by the trial court.

INTRODUCTION

The writ proceeding before us was instituted by the County of Santa Clara and its executive, Peter Kutras, Jr. (collectively, the County). The County seeks extraordinary relief from a superior court order filed in May 2007, requiring it to disclose its geographic information system basemap to the real party in interest, California First Amendment Coalition (CFAC). Having stayed the 2007 order, we issued an order to show cause in March 2008, to which CFAC and the County responded.

The County's petition in this court rests on three main legal arguments, which are asserted in the alternative: (1) paramount federal law promulgated under the Homeland Security Act of 2002 (6 U.S.C. § 101 et seq.) protects the information from disclosure; (2) the requested information is exempt from disclosure under the California Public Records Act (Gov. Code, § 6250 et seq.); (3) even if disclosure is required, the County can place restrictions on disclosure under state law provisions recognizing its copyright interests, and it can demand fees in excess of reproduction costs.

After considering the extensive record, the arguments raised by the parties, and the submissions by numerous amici curiae, we conclude that the County is not entitled to the relief sought. We therefore deny the County's writ petition on the merits. However, we will remand the matter to the superior court for a determination of whether and to what extent the County may demand fees in excess of the direct costs of reproducing the electronic record requested by CFAC.

FACTUAL AND PROCEDURAL BACKGROUND

On June 12, 2006, CFAC submitted a request for a copy of the County's geographic information system (GIS) basemap.¹ The request was made under the California Public Records Act (CPRA), Government Code section 6250 et seq. Two weeks later, the County denied the request, citing statutory exemptions and copyright protection.

On August 16, 2006, CFAC renewed its request for the GIS basemap, with some modifications. Later that month, the County denied the renewed request.

Proceedings in the Superior Court

On October 11, 2006, CFAC filed a petition for writ of mandate, seeking to compel the County to produce the GIS basemap. Among the exhibits attached to the petition was the County's GIS basemap data request form, which details the procedure and the required fees for obtaining that data. Based in part on the fee schedule contained in that form, CFAC asserted that the cost of obtaining countywide parcel information alone "would be approximately $250,000." As legal support for its petition, CFAC relied on the CPRA, and on the California Constitution, article I, section 3. The County answered, then CFAC filed its replication to the answer.

In January 2007, CFAC moved for judgment on its petition. The County opposed the motion, and CFAC replied. At a hearing held in February 2007, the court authorized the County to file a supplemental response, which it did the following month. CFAC successfully sought an opportunity to reply.

The trial court thereafter conducted two further hearings in April 2007. A substantial volume of evidence and argument was presented to the trial court.

On May 18, 2007, the trial court filed a 27-page written order.

In its factual findings, the court described GIS and the basemap. The court determined that the County "sells the GIS basemap to members of the public for a significant fee and requires all recipients to enter into a mutual non-disclosure agreement." Later in its order, the court observed that the County had "actually entered into agreements with 18 different entities, 15 of those being government entities."

Addressing the legal issues, the court noted both parties' agreement that "the resolution of this dispute turns on whether the public record is exempt." The court then discussed various proffered CPRA exemptions, ultimately rejecting them all for different reasons.

Having found that no exemption was available under the CPRA, the court ordered the County to provide CFAC with the GIS basemap, at the County's direct cost. The court stayed the order until June 25, 2007, to permit the parties to pursue appellate review.

Proceedings in This Court

On June 12, 2007, the County initiated this writ proceeding.² It filed a petition accompanied by a memorandum of points and authorities. At the County's request, we issued a temporary stay. CFAC filed preliminary opposition, to which the County replied.

Order to Show Cause; Responses

In March 2008, we issued an order to show cause to the respondent superior court, inviting opposition by CFAC as the real party in interest.

CFAC filed a return in April 2008, to which the County replied the following month.

Numerous amici curiae applied for leave to file five separate briefs in this court. We granted all five applications.³

The Record

In connection with its June 2007 petition in this court, the County filed an eight-volume petitioner's appendix consisting of nearly 2,000 pages. The following month, we granted the County's request to augment the record with transcripts of the two hearings conducted by the superior court in April 2007.

In 2008, we received and granted three requests for judicial notice.⁴ Despite having taken judicial notice of these documents, we need not rely on them in resolving this proceeding. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1 [151 Cal.Rptr. 837, 588 P.2d 1261]; see also Windham at Carmel Mountain Ranch Assn. v. Superior Court (2003) 109 Cal.App.4th 1162, 1173, fn. 11 [135 Cal.Rptr.2d 834]; Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 30 [34 Cal.Rptr.3d 520].)

CONTENTIONS

As indicated above, the County offers three grounds to support its petition, which asserts trial court error in mandating disclosure of its GIS basemap.

The County's first argument relies on federal law, including the Critical Infrastructure Information Act of 2002. According to the County, that statute and its accompanying regulations preempt state law. And under those superseding federal provisions, disclosure of the GIS basemap is prohibited, because it has been validated by the United States Department of Homeland Security as protected critical infrastructure information.

The County's second argument is based on state law, the CPRA. According to the County, even if the CPRA is not preempted by federal law, its "catchall" exemption shields the GIS basemap from public disclosure.

As the third ground for its petition, the County posits that even if neither preemption nor exemption supports nondisclosure, it should be allowed (a) to demand end user agreements, because the GIS basemap is copyrightable, and (b) to recover more than its direct cost of providing the record, based on a provision of the CPRA.

DISCUSSION

Addressing each of the County's three contentions in turn, we first provide an overview of the relevant general principles of law. We then set forth the parties' arguments in greater detail, followed by our analysis.

I. Federal Homeland Security Law

A. Overview

1. The Statute

(1) The federal statute at issue here is the Critical Infrastructure Information Act of 2002 (CII Act). (6 U.S.C. §§ 131-134.) The CII Act is part of the Homeland Security Act of 2002, which established the Department of Homeland Security (DHS). (See 6 U.S.C. §§ 101, 111(...