SIERRA CLUB v. S.C. (COUNTY OF ORANGE)

Petitioner’s Petition for Review

Cal.July 12, 2011

cre 998 Court of Appeal No. G044138 (Orange County Superior Court Case No. 0-2009-00121878-CU-WM-CJC) In the Supreme Court of the State of California SIERRA CLUB, Petitioner and Appellant, VS. SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF ORANGE, Respondent. owe court iae D COUNTY OF ORANGE, ~ \- Real Party in Interest. : We V} ws ~\otkano FROM THE SUPERIOR COURT FOR ORANGE COUNTY sackOne The Honorable JamesJ. Di Cesare, Judge ceo Department C-18 — (657) 622-5218 a PETITION FOR REVIEW After a Decision by the Court of Appeal Fourth Appellate District, Division Three Sabrina D. Venskus, SBN 219153 Dean Wallraff, SBN 275908 Venskus & Associates, P.C. 21 South California Street, Suite 204 Ventura, California 93001 Telephone: (805) 641-0247 Facsimile: (213) 482-4246 Attorneys for Petitioner and Appellant, THE SIERRA CLUB Court of Appeal No. G044138 (Orange County Superior Court Case No. 0-2009-00121878-CU-WM-CJC) In the Supreme Court of the State of California SIERRA CLUB, Petitioner and Appellant, VS. SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF ORANGE, Respondent. COUNTY OF ORANGE, Real Party in Interest. FROM THE SUPERIOR COURT FOR ORANGE COUNTY The Honorable James J. Di Cesare, Judge Department C-18 — (657) 622-5218 PETITION FOR REVIEW After a Decision by the Court of Appeal Fourth Appellate District, Division Three Sabrina D. Venskus, SBN 219153 Dean Wallraff, SBN 275908 Venskus & Associates, P.C. 21 South California Street, Suite 204 Ventura, California 93001 Telephone:(805) 641-0247 Facsimile: (213) 482-4246 Attorneys for Petitioner and Appellant, THE SIERRA CLUB IL. TH. TABLE OF CONTENTS ISSUES FOR REVIEW...........:cecseceenceeeeeee reer ee cease ecrersietie 1 INTRODUCTION.............0ccc ccc ce cence eee eeetn erent eee e nent anes 2 FACTUAL AND PROCEDURAL BACKGROUND.............7 DISCUSSION.............ce cee ee see eee eee eee teeter entreen cries 11 A. The Orange County and Santa Clara Opinions Directly COMPLE... 6. cece ccc e cette ne nee eee eee e eee13 This Case Presents Important Questions of Law.......... 16 1. 2. Whetherthe section 6254.9 software exclusion applies to electronic data such as GIS datais an important question of law because the answer implicates a fast growing sector of public records held by government..........::1esseseeeeeee etter eee 16 a) b) Section 6254.9 should be read to effectuate the express purpose and structure of the Public Records Act: make government-held information as broadly available as possible and limit exceptions to broad disclosure, in furtherance ofensuring citizens can effectively monitor their governmentand keepit ACCOUNEADIE. cece cece cece cen c scene cee ee essences 18 The Orange County Opinion disturbs the Legislature's careful balancing of INLCTOSES . oc cc ccccccccccecceseueeeeseeneeeseenueueres20 How much weight a court should give the California Constitution’s mandate to narrowly i interpret statutory provisions that limit access to governmentinformation is an important question of law best resolved by the Supreme Court........22 C. The Opinion Misapplies Tools of Statutory Trterpretation....cccscccsccscnenreeesennenceneenseen cess sees ane24 1. The plain meaningof the statute is clear...........24 2. Evenif the statutory text was ambiguous, the propernext step is to apply constitutional and statutory mandates requiring narrow interpretation of the software exclusion............24 3. The Opinion contains three major errors with respectto the legislative history of section 6254.9... ccc ecee cece ener eeeee eee reese ee ee enna etn eeee eens 27 D. The Case is Ripe for Supreme Court Review.............30 IV. CONCLUSION............0:c cece cece ene e ene nett ee ener ae ren ens31 il TABLE OF AUTHORITIES Federal Cases Arizona State Bd. for Charter Schools v. U.S. Dept. ofEducation (Ot Cir. 2006) 464 F.3d 1003.2... 0...c ete ee eee terete enter eee25 Federal Land Bank v. Bismarck LumberCo. (1941) 314 US. 95.eeeesessesenecesseneeceensseseaessecenasseeeeserssseesiensteensaes 25 California Constitution Cal. Const., Art. I, Section 3, subd. (b), par. 2........... secre1, 22, 26 California Cases Commission on Peace Officer Standards and Trainingv. Superior Court (1997) 42 Cal4th 278 0.0... ccc cece ee eee e teen terete ene ree nena26, 27 County of Santa Clara v. Superior Court (2009) 170 Cal.App.41301..........cc cece eee e rete erencespassim Goodman v. Lozano (2010) 47 Cal. 4° 1327.00... cceccsesetenseseereeeseeneeeeneteneneeeeannenenensenenens26 Int'l Federation of Prof. and Technical Engineers, Local 21 v. Superior Court (2007) 42 Cal4th 319.0...cece cece eee nent eter e enter nee ee eees 19 People v. Tindall (2000) 24 Cal4th 767.0... ...ccceec ec cee cece ener rere nent ere ee any 25 ii Professional Engineers in California Governmentv. Kempton (2007) 40 Cal.4th 1016.20.00... ccc cece e scence eee ee reese ene e eect nee27 Reid v. Google, Inc., (2010) 50 Cal. 4 512...cccecet r reece recent ee een en es24 California Statutes Government Code section 6250 .........ccccece ccc ee ae eeesteetetteeteee es LO, 27 Government Codesection 6253.9... ccc cccccc ccc ee eee c eee eee ce esereseees20 Government Codesection 6254.9. 00... cece cceeeee ee cee ence eeneneeespassim Government Code section 6256.00... . cece cccc eevee eeee ee ee eee eeneeeeeeeeenens29 California Rules of Court Rule 8.500 (Db)... .. cee ccece cere eee e eee eee n ene nent eee te nee ee en eneen enter eats il Other Primary Sources 88 Ops.Cal.Atty.Gen. 153 (2005)...c..cccsecssseseesseeeeeteeseeseeeseneenees30 iv TO THE HONORABLE TANI GORRE CANTIL-SAKAUYE, CHIEF JUSTICE OF THE SUPREME COURT OF CALIFORNIA AND THE HONORABLE ASSOCIATE JUSTICES: The Sierra Club, Petitioner, respectfully petitions for review of the decision of the Court of Appeal, Fourth Appellate District, Division Three, in the matter captioned “Sierra Club v. Superior Court of Orange County,” filed on May 31, 2011 (the “Opinion”), attached as Exhibit A. I. Issues for Review 1. Geographic Information Systems (GIS) data! is computer data consisting primarily of information referenced to specific geographic locations, such as the legal boundaries of the land parcels ina county. Does the Public Records Act’s computer software exclusion exempt non-software computer data, such as GIS data, from mandatory disclosure? 2. Does the constitutional requirement that a “statute ... shall be broadly construedif it furthers the people’s right of access, and narrowly construedif it limits the right of access” to government information (Cal. Const., art. I, section 3, subd.(b), par. 2) mandate that section 6254.9’s computer-software exclusion be interpreted to The GIS data atissuein this case, the “Orange County landbase,” is organized in a database, but the difference between GIS data and GIS databaseis a distinction without a difference because a database is simply a set of data. Thus, the Opinion’s reasoning applies to both. 1 apply to GIS software only, and not GIS data, since the exclusion limits the rights of access to government-held information? II. Introduction This case represents a challenge to Orange County’s practice of selling public records held in a specified electronic formatfor the purposeof generating revenue. The Orange County Courtof Appeal’sdecision to endorse Orange County’s refusal to discloseits GIS data pursuantto the California Public Records Act? works a radical departure from existing open-records law, removing indisputably valuable public information from the public domain for the express purposeof creating a private marketfor the data. Petitioner Sierra Club respectfully urges the Supreme Court to grant review of this case because the Orange County Opinion directly conflicts with the Sixth District Court of Appeal’s decision in County of Santa Clara v. Superior Court of Santa Clara County (2009) 170 CalApp.4th 1301 (“Santa Clara”) and thus review is necessary to ensure uniformity of decision. In addition, the case presents importantissues of law including the proper interpretation of section 6254.9 and the proper weight a court must give Article 1, Section 3 of the California Constitution wheninterpreting the PRA’s provisions. 2 Gov. Code sections 6250-6276.48, the “Public Records Act” or “PRA.” Section references are to the Government Code, unless otherwise specified. The Orange County Court held in this case that GIS data is nota public record becauseit is “computer software”as that term is used in section 6254.9.3 This holding, which conflicts with all prior legal authority involving the Public Records Act’s application to GIS data. has wide-ranging negative implications with respect to the public’s right to access importantelectronic public records maintained and used by the government. As demonstrated in the court record below, GIS land parcel data, the specific type of GIS data being sought under the PRA inthe instant case, is, according to Orange County itself, the most 3 Section 6254.9 reads asfollows: (a) Computer software developed bya state or local agencyis notitself a public record underthis chapter. The agency may sell, lease, or license the software for commercial or noncommercial use. (b) As used in this section, "computer software" includes computer mapping systems, computer programs, and computer graphics systems. (c) This section shall not be construed to create an implied warranty on the partof the State of California or any local agencyfor errors, omissions, or other defects in any computer software as provided pursuantto this section. (d) Nothing in this section is intendedto affect the public record status of information merely because it is stored in a computer. Public records stored in a computershall be disclosed as required by this chapter. (e) Nothing in this section is intendedto limit any copyright protections. important data set the county possesses dueto its wide applicability and extensive use. GIS parcel data is utilized by public agencies of all sizes and jurisdictions, non-profit organizations, academic researchers and teachers, profit-oriented businesses, news media, and individuals for a wide range of purposes, such as: e News media frequently use GIS data for newsreporting purposes. For example, the Sacramento Bee combined foreclosure data with GIS data to map where the housing bust hit hardest in the Sacramentoarea. It also utilized GIS data to show where medical marijuana dispensaries could be located under a newly enacted city ordinance. The Miami Herald used GIS land parcel data in conjunction with government inspection reports of structures damaged from Hurricane Andrew to demonstrate that damage to structures was the worst not where the hurricane hit hardest, but rather in areas where developmentoccurredafter 1980, around the time building codes were relaxed. The Herald’s award winning report helpedinstigate a reform effort to strengthen building codes in South Florida. This reporting would not have been possible without the newspaper having access to GIS land parcel data held by the government. e Businesses aggregate GIS parcel data and integrate it with other computer data to provide value-addedservices. For example, LexisNexis offers a meansof tracking sexual predatorsthatrelies heavily on GIS data, and integratesit with other public record information. This service is provided only to law-enforcement agencies and enables law enforcementto generate and prioritize leads in time-sensitive, pressurized situations such as AmberAlerts, as just one example. Academic researchers use GIS parcel data to study urban planning andshifts in population density, and when used in combination with census data and pollution source databases, to study the impacts of urban developmenton public health. Orange County remains a blank spot in much of UCLA's academic research becauseit refuses to provide its GIS parcel data at a cost comparable to that of other counties. Non-profit organizations use GIS data to map open-space ownership for public land acquisition efforts, and to identify the most disadvantaged urban populations in terms of proximity to park space andrecreationalfacilities. Unlike Orange County, the vast majority of California counties presently provide their GIS parcel data under the PRA’s terms, requiring no licensing agreement and charging a fee for the direct cost of copying the data onto a DVD ~ a few dollars; but thisis likely to change if the Orange County Opinion stands. For purposes of comparison, Los Angeles County, with the largest GIS land parcel database of any county in the state, charges a mere $6.00 for the full collection of its GIS land parcel data. On the other hand, Orange County charges $375,000.00 for a copyof its entire collection of GIS land parcel data andrestricts the purchaser’s ability to distribute the data by requiring a licensing agreement. Asa result of the Opinion in this case, many local agencies will likely follow the lead of Orange County and chargehefty licensing fees for GIS land parcel data, effectively placing these records out of the public’s reach. Because the Opinion holds that GIS data is not a public record becauseit is “computer software”, public agencies can, at will, deny access to its GIS parcel data altogether. Further, and even more disturbing to the integrity of the Public Records Act, is the Opinion’s reasoning arguably appliesto all types of GIS data, not just GIS land parcel data, and therefore operates to removeincreasingly more government-held information from the public domain because GIS data is being incorporated into an ever-expanding variety of electronic records held by the government. The matter is one of statewide concern. For example, the State of California is aggregating GIS land parcel data to producea state- wide GIS land parcel database. Manyother states are embarking upon similar endeavors, and a federaleffort is underwayto ageregateall states’ GIS land parcel data into a nationwide database. The result of these efforts will provide important mapping datasets to not just Californians, but also the public nationwide. To succeed, these GIS data-sharing efforts depend upon generally uniform application of public-records lawsin California and across the country. The California statewide effort has been significantly hampered by Orange County’sinsistenceto restrict the distribution ofits GIS parcel data, which it providesto the State of California undera licensing agreement. Such restrictions will similarly hamperthe federal effort. The Opinion in this case allows Orange County to continuerestricting andselling its GIS data for significantlicensing fees, and encourages other governmentagencies within California to impose similar restrictions andlicensingfees. As an increasingly large percentage of public records consist of computer data andespecially GIS data, the issuesin this case affect a larger spectrum of public records in California than one might imagine from reading the Opinion. Thus, the Orange County Court of Appeal’s decision represents a regrettable setback to open government laws. The Supreme Court shouldgrant review of this case and puta definitive end to governmentefforts such as Orange County’s to license electronic records for the purpose of generating revenue. III. Factual and Procedural Background In 2007 and 2008 the Sierra Club requested in writing from Orange County an electronic copy of the Orange County landbase, 7 which is a collection of GIS data containing the location and configuration of each of the more than 640,000 legal parcels of land in Orange County. The landbase also contains related information for each parcel, including the Assessor Parcel Number,the parcel’s street address, and the parcel owner’s name and address. The landbase contains no software. The Sierra Club hasits own GIS software that it purchased from a third-party vendor, andis not requesting, nor has requested, Orange County provideits GIS software to Sierra Club. GIS software can overlay the GIS landbase on otherlayers of GIS data concerningstreets, lakes andrivers, aerial photographs, political boundaries, parks, and the like. GIS land parcel data obtained from other countiesis imported into the GIS software and the software is used to manipulate the data to make a variety of maps. Sierra Club uses these mapsin furtherance of its environmental campaigns. One such campaign, called “Open Spaces, Wild Places,” is aimed at preserving open space in Orange County.GIS land parcel data enables the Sierra Club to produce accurate maps, since the open-space area boundaries match up with legal boundaries of land parcels, but because Orange County refusesto disclose its landbase pursuantto the Public Records Act, Sierra Club is unable to produce accurate maps of Orange County’s remaining open space threatened by development. Another computer-generated map produced by the Sierra Club showsthe parcels of land in Los Angeles County’s Verdugo Mountains. Each parcel is color-coded on the mapto indicate whetherit is publicly or privately owned. The map has been used by the local city councilmemberto prioritize open-space acquisitions in the Verdugo Mountains. GIS land parcel data like Orange County’s landbaseis used bya wide variety of public agencies and private businesses for an ever- expandingvariety of purposes,includingcity planning, routing emergency vehicles, designing real-estate developments,tracking sexual predators, and many more. After Orange County denied the Sierra Club’s requestfor the landbase, the Sierra Clubfiled a petition for writ of mandate under the California Public Records Act requesting the Orange County Superior Court to direct Orange County to provideto Sierra Club the landbasein the electronic format requested for the direct cost of copying, and with no requirementfor a license agreement. The case wasassigned to the Honorable James G. Di Cesare in Dept. C-18. After two roundsofbriefing, an evidentiary hearing, and oral arguments the Superior Court denied Sierra Club’spetition. The Sierra Club timely appealed. In addition to the parties’ briefs, amicus curiae briefs were filed on behalf of the following organizations and persons: Consumer Data Industry Association, Corelogic, LexisNexis, and the National Association of Professional Background Screeners, in supportof the Sierra Club; First AmendmentCoalition, Freedom Communications, Inc., publisher of the Orange County Register, Los Angeles Times, the Associated Press, Bay Area News Group, Bloomberg News, Courthouse NewsService, Gannett Co., Inc., Hearst Corporation, Lee Enterprises, Inc., the McClatchy Company, Patch Media Corp., the San Francisco Examiner, Wired, American Society of News Editors, Association of Capital Reporters and Editors, California Newspaper Publishers Assoc., 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 the Society of Professional Journalists, in support of the Sierra Club; The Open Monterey Project, in support of the Sierra Club; AcademicResearchersin Public Health, Urban Planning and EnvironmentalJustice, in support of the Sierra Club; the GIS Community (including 20 GIS professionals and organizations), in support of the Sierra Club; League of California Cities, and California State Association of Counties, in support of Orange County. 10 Afterfull briefing, the Court of Appeal heard oral arguments on April 18, 2011, and filed its opinion in the case, denying the Sierra Club’s petition, on May 31, 2011. The Sierra Club hasnotfiled a petition for rehearing; no essential facts are in dispute. The Opinion determinedthe proper standard of review is de novo (Opinion at p. 7) and the Sierra Club agrees. IV. DISCUSSION Under California Rules of Court, rule 8.500(b), Supreme Court review is appropriate “[w]hen necessary to secure uniformity of decision or to settle an important question of law.” This case meets both criteria. The primary issue in this case is whether government agencies must disclose GIS land parcel data pursuant to the Public Records Act. One Court of Appeal says yes, another Court of Appeal says no, thus creating disunity of decision. The specific Public Records Act provisionat issue is section 6254.9, which readsas follows: (a) Computer software developedbya state orlocal agencyis not itself a public record under this chapter. The agency maysell, lease, or license the software for commercial or noncommercial use. (b) As usedin this section, "computer software" includes computer mapping systems, computer programs, and computer graphics systems. (c) This section shall not be construed to create an implied warranty on the part of the State of California or any local agency for errors, omissions, or other defects in 11 any computer software as provided pursuantto this section. (d) Nothingin this section is intendedto affect the public record status of information merely becauseitis stored in a computer. Public records stored in a computer shall be disclosed as required by this chapter. (e) Nothingin this section is intended to limit any copyright protections. Subdivision (a) excludest computer software from public record status. Subdivision (b) declares that “computer software” afincludes “computer mapping systems,” “computer programs,” and “computer graphics systems.” These three terms are not separately defined in the Public Records Act anywhere. The dispute in this case centers around the properconstruing of “computer software” as used in subdivision (a), and whether subdivision (b) merely illustrates types of computer software or actually defines “computer software” to mean something other than its plain meaning. The Supreme Court should grant review of this case and resolve the issue to establish uniformityof decision and settle important questions of law. 4 Petitioner herein adopts the Opinion’s terminology (Opinionatp. 6, fn. 4): section 6254.9 excludes computer software from public- record status altogether, in contrast to other provisions which exempt public records from disclosure. 12 A. The Orange County and Santa Clara Opinions Directly Conflict. The Opinionin this case, by the Fourth District Court of Appeal, Division 3, which has beencertified for publication, conflicts with the published opinion of the Sixth District Court of Appeal in County of Santa Clara v. Superior Court of Santa Clara County (2009) 170 Cal.App.4th 1301 [“Santa Clara’). The facts in the Santa Clara case are analogoustothefacts in this case. In Santa Clara, petitioner First AmendmentCoalition requested a copy of Santa Clara County’s GIS “basemap,” the equivalent of the Orange County’s GIS “landbase” requested by petitioners here, and was refused. First Amendment Coalition filed suit under the Public Records Act; the trial court issued the requested writ of mandate, ordering Santa Clara County to provide the requested GIS data to petitioner with nolicensing agreement requirement. The Sixth District Court of Appeal affirmed. (Santa Clara, at p. 1337). While the Santa Clara Court held that the County’s GIS “basemap”is a public record and therefore must be disclosed without requirementof a licensing agreement(Santa Clara, at p. 1336), the Orange County Court concluded the exact opposite: the County’s GIS “landbase”is not a public record and therefore the County may charge whateverfee it wishes for distribution of its GIS land parcel data and subject to a licensing agreement. (Opinionatp. 3) 13 The Orange County Court of Appeal claims the Santa Clara Opinionis not applicable or controlling because, “the appellate court [in Santa Clara] declined to consider whether Santa Clara County’s GIS basemap was a computer mapping system excluded from disclosure undersection 6254.9 because the issue wasraised only by Santa Clara County’s amici curiae,” (Opinionat p. 18,) and further noting, “The Court of Appealstated in dicta in a footnote that Santa Clara County had concededin the trial court that its basemap wasa public record andthat this ‘concession appears well founded,’ based on the Attorney General’s opinion discussed above.”(Ibid.) The Orange County Court of Appeal’s determination that the Santa Clara court “declined to consider” whether Santa Clara County’s GIS “basemap” was excluded from the PRA becauseit did not consider whether the basemap was a “computer mapping system”as that term is used in section 6254.9 (b), is a distinction withouta practicalor legal difference; both Courts were faced with construing the term “computer software”as used in section 6254.9 (a) to arrive at their respective, albeit contrary, holdings regarding whether the county’s GIS land parcel database is a public record and therefore whetherthe county can subject the GIS data to a licensing agreement. Hereis the Santa Clara footnote that the Orange County Opinion characterizes as dicta: The County conceded below that the GIS basemapis a public record. The contrary arguments of its amici curiae 14 notwithstanding, that concession appears well founded. (Cf. 88 Ops.Cal.Atty.Gen. 153, 157 (2005) [“parcel boundary map data maintained by a county assessor in an electronic formatis subject to public inspection and copying ...” under CPRAJ].) Since the GIS basemapis a public record, the County cannot claim the computer software exemption of 6254.9, subdivision(a). (Santa Clara, supra, 170 Cal.App.4th 1301, 1332, n.9.) Without more, this footnote might only be dicta. However, the court makes use of this determination that the GIS basemapis not “computer software” in its holding section 6254.9, subd. (e)° does not apply to the GIS basemap.Specifically, the Santa Clara Courtrejected the County’s argumentthatsince it had taken the liberty to copyright the GIS basemap,section 6254.9 (e) entitled the County to demand a licensing agreement. (Id. at p. 1331.) The Santa Clara Court expressly denied the County’s copyright claim by concluding section 6254.9 does not apply to the GIS basemap becauseit is not “computer software” undersection 6254.9: By the express termsof section 6254.9, the Legislature has demonstratedits intent to acknowledge copyright protection for software only. In sum, while section 6254.9 recognizes the availability of copyright protection for software in a propercase, it provides no statutory authority for asserting any other copyright interest. 5 “Nothing in this section is intended to limit any copyright protections.” 15 (Santa Clara, supra, 170 Cal.App.4th 1301, 1334). This holding — that Santa Clara County cannotclaim copyright protection of its GIS basemap undersection 6254.9(e) because the GIS basemapis not software under 6254.9 (a) — is dependenton the Court's finding that the GIS basemapis not software. Because the result in the Santa Clara case depends uponthe court's finding that the GIS basemapis not software, that finding is a holding and not dicta. The Orange County Opinionerrs in attempting to distinguish Santa Clara on the basis that the Santa Clara Court did notinterpret “computer mapping system”as that term is used in section 6254.9 (b). But the distinction is one without a practical difference:if the GIS data is not “computer software” as contemplated by section 6254.9, then the date is subject to the Public Records Act’s disclosure requirements. Therefore, the two Court of Appeal Opinionsare in conflict with each other. Supreme Court review of this caseis necessary to establish uniformity of decision. B. This Case Presents Important Questions of Law. 1. Whetherthe section 6254.9 software exclusion applies to electronic data such as GIS data is an important question of law because the answerimplicatesa fast growingsector of public records held by government. Thespecific electronic data at issue in both this case and the Santa Clara case is GIS land parcel data. But the two conflicting case holdings could apply to other types of GIS data, and even non-GIS electronic records. For example, hundreds, if not thousands,of state 16 and local agencies maintain GIS data regarding thelocations of storm drains, pipelines, electric poles, streets and highways,rivers and lakes, parks, publicly-owned buildings, water meters, airports, aqueducts, and street addresses. The Orange County Opinion raises the question of whether this type of GIS data is also subjectto sale and licensing agreementsin light of the Court’s reasoning. The worst-case scenario arising from the Orange County decision is that even non-GISelectronic records will be subject to hefty fees and end-user licensing agreements. This is because as GIS technology becomes more ubiquitous in governmentaffairs, GIS data is making its way into a greater variety of electronic records, including computer graphics, conventional databases and non-GIS datasets. Both Orange County andthe State of California have adopted policies requiring new databases include “geocoding,” in other words, GIS data. The increasing presence of GIS information in conventional databases(e.g., a voter registration database or a utility company’s customer complaint database) blursthe line between GIS data and other types of data. As public agencies increasingly maintain their public records in the form computer data, and as computerdata increasingly contains GIS information, the Orange County Opinion,if it stands, could serveto justify government's refusal to disclose, (or demandfor licensing agreements and hefty 17 fees), vast numbers of public records by virtue of the fact the records contain GIS data. The statewide and even nationwidesignificance of correctly interpreting section 6254.9’s computer software exclusionis demonstrated by the numberand variety of individuals and organizations for which amicuscuriae briefs were filed in the Court of Appeal. a) Section 6254.9 should be interpreted so as to effectuate the express purpose and structure of the Public Records Act, thatis, give the public access to as much government-held information as possible within the constraints of significant privacy and security interests, to enable citizens to effectively monitortheir government and keep it accountable. In enacting the Public Records Actinto law, the Legislature declared that “access to information concerning the conductof the people's business is a fundamental and necessary right of every personin this state.” (§ 6250.) Openness in governmentis essential to the functioning of a democracy, “Implicit in the democratic processis the notion that government should be accountableforits actions. In order to verify accountability, individuals must have access to governmentfiles. Such access permits checks against the arbitrary exercise of official power and secrecyin the political process.” (Int'l Federation of Prof. and Technical Engineers, Local 21 v. 18 Superior Court ofAlameda County (2007) 42 Cal.4th 319, 328-29 (internal quotation marksand citations omitted).) Citizens’ inability to obtain GIS data underthe Public Records Act will almost certainly diminish governmenttransparency and accountability, thereby frustrating the Act’s stated purpose. For example, used in conjunction with an assessor'sroll database, a GIS parcel database can be used by a property ownerto locate comparable properties based on geographiccriteria, and to evaluate whether assessed valuations and taxes are consistent and fairly applied to the owner's property. Similarly, the Sierra Club has utilized Los Angeles County land parcel GIS data, previously provided pursuantto a Public Records Act request, to determine that certain parcels of land slated for development but owned by the City of Santa Clarita are within the navigablefloodplain of the Santa Clara River, and thus may be subject to the public trust doctrine. This information was provided by the Sierra Club to the lead agency responsible for conducting environmental review pursuantto the California Environmental Quality Act (“CEQA”). Had Los Angeles County refused to disclose its GIS database to Sierra Club and instead demandedhefty licensing fees like Orange County, the City’s plans to develop public trust lands would have gone unchallenged. The Opinion giveslittle weight to the legislature’s express statutory purposein enacting the Public Records Act and instead 19 implicitly and impermissibly recasts the statutory purpose as one that furthers the government's interest in generating revenue from the sale of government-held information. b) The Orange County Opinion disturbs the Legislature’s careful balancing ofinterests. In adopting section 6253.9,6 which requires public agencies to provide public recordsin an electronic format if available and requested in that format, and section 6254.9, which excludes computer software from Public Records Actdisclosure, the Legislature sought to balance the government’s interest in protecting proprietary computer programs written and developedat significant cost with the People’s interest in broad access to government-held information. The intersection of the two provisions demonstrate the 6 Section 6253.9 reads in pertinent part, (a) Unless otherwise prohibited by law, any agencythat has information that constitutes an identifiable public record not exempt from disclosure pursuant to this chapter that is in an electronic format shall makethat information available in an electronic format whenrequested 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) Each agencyshall provide a copy of an electronic record in the format requested if the requested format is one that has been used by the agency to create copiesfor its own use orfor provision to other agencies. The cost of duplication shall be limited to the direct cost of producing a copy of a record in an electronic format. 20 legislature’s intent to establish a policy balance that weighsclearly in favorof disclosure of all electronic data notrelated to software programmingitself. Regrettably, that policy balanceis significantly disturbed by the Opinion. Orange County’s annual revenue stream from licensingits GIS data appearsto be a significantfactor in the Orange County Court of Appeal’s decision. (See Opinionatp.5, [discussing Orange County revenue from licensing the OC Landbase], and atp. 13, [erroneously findingthat the legislative history demonstrates the purpose of the bill enacting section 6254.9 wasto “allow[] San Jose to recoup the developmentcosts of its database known as the Automated Mapping System.”].) The Opinion disturbsthe Legislature’s careful balancingof interests by elevating Orange County’s desire to generate a steady stream of revenue over the People’s interest in liberal access to government-held information and thus open and transparent government. Simply stated, the Public Records Act wasnot designed to create a revenue center for selling public records. The Opinion might be the first California appellate decision creating a governmentrightto sell public records for profit. The Orange County Court of Appeal’s rebalancing of Orange County’s desire for revenue as more important than the People’sinterests in open and transparent governmentpresents an important question of law, which necessitates review by the Supreme Court. 21 2. How muchweight a court should give the California Constitution’s mandate to narrowly interpret statutory provisionslimiting access to governmentinformationis an important question of law best resolved by the Supreme Court. Underthe California Constitution, “The people havethe right of access to information concerning the conduct of the people's business... .” (Cal. Const., art. I, section 3, subd. (b).) This civil right was addedto the California Constitution by Proposition 59 (“Prop. 59”), which was approved overwhelmingly by the electorate in 2004. Prop. 59 also added requirementsto the California Constitution that specifically apply to the statutory interpretation of the PRA: A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construedif it furthers the people's right of access, and narrowly construedif it limits the right of access. (Cal. Const., art. I, section 3, subd.(b), par. 2.) This constitutional provision controls the interpretation of the Public Records Act, including section 6254.9. (See Commission on Peace Officer Standards and Training v. Superior Court, (1997) 42 Cal.4th 278, 288). Itisa constitutional mandate requiring courts to broadly interpretthe definition of “public record, “and narrowly interpret any exceptions and exemptions, such as section 6254.9’s computer software exclusion. Given that the Opinion declares section 6254.9’s statutorytextis ambiguous and subject to both parties’ interpretations (Opinionat p. 220 8), the Constitution compels the Court to choose the narrowerof the two possible interpretations of the term “computer mapping system.” Thus, the Court was compelled by the California Constitution fo adoptthe position advocated by Petitioner: “computer software” and “computer mapping systems,” as those terms are usedin section 6254.9, refer to computer programsonly, and neither GIS parcel data nor any other non-computer programmingelectronic datais encompassed within the definition of “computer software”as that term is used in section 6254.9. The Orange County Court of Appealerred by failing to follow the constitutional mandate of narrowly construing exclusionsto the Public Records Act early in the statutory construction analysis. The Opinion pays “lip service” to the constitutional mandate that limitations on public access be narrowly construed: “Section 6254.9 mustbe interpreted narrowly to exclude from disclosure only a GIS database such as the OC Landbase.” (Opinionat p. 21.) This is not a narrow interpretation of the Public Records Act software exclusion at all. It actually demonstrates the Orange County Court treated the constitutional mandate as almost an afterthought, giving it very little weight. The question of wherein the statutory construction analysis a Court mustseriously consider and apply the constitutional mandate to narrowly construe limits to access of governmentrecords is an 23 issue the Supreme Courthasnot yet squarely addressedin the context of the Public Records Act. Whether the Orange County Opinion committed legal error in failing to give Article 1, Section 3 of the California Constitution more weightin its interpretation of “computer software”in section 6254.9 is an important legal question that should be resolved by the Supreme Court. C. The Opinion Misapplies Tools of Statutory Construction. The Opinion mistakenly found ambiguity in the computer- software exclusion’s language andsoresortedto legislative history to interpretit. (Opinion atp. 8). But as discussed further below,the Opinion’s analysis ofthe legislative history is flawed in several respects, resulting in the erroneous conclusion thatlegislative history demonstratesthelegislature intended “computer mapping systems,” as used in section 6254.9 (b), to mean something more than computersoftwareastypically defined. 1. The plain meaningof the statute is clear In interpreting a statute, a court mustlooktothe statute’s wordsand give them their usual and ordinary meaning.(Reid v. Google, Inc., (2010) 50 Cal. 4 512). The plain-meaning interpretation of “computersoftware” possesses the same meaning when used in its lay and its technical senses. “Computer mapping systems,” “computer programs,” and “computer graphics systems,” terms 24 used in section 6254.9(b) to describe “computer software” are merely illustrative examples of computer software. (Arizona State Bd. for Charter Schools v. U.S. Dept. of Education (9th Cir. 2006) 464 F.3d 1003, 1007 {emphasis added][“the word‘including’ is ordinarily defined as a term ofillustration, signifying that what followsis an example ot the preceding principle.” ]; Federal Land Bank v. Bismarck Lumber Co. (1941) 314 U.S. 95, 100 [“The term ‘including’ is not oneofall- embracing definition, but connotes simply anillustrative application of the general principle.”].) Section 6254.9 (b) does not enlarge the statutory definition of “computer software” to include the data operated uponbysoftware, as was Orange County’s argument below. Yet the Orange County Opinion gave credence to the agency’s strained and unreasonable interpretation of “computer mapping systems” as consisting of both mapping software and the computer data upon which computer mapping software operates: “a ‘computer mapping system’ might or might not include data along with the associated computer program.” (Opinionatp. 8). Construing the term “computer mapping systems”in this manneris unreasonable in light of the plain meaning of “computer software.” (Goodmanv. Lozano, (2010) 47 Cal. 4 1327, 1332, [court was “not free to ‘give the wordsaneffect different from the plain and direct import of the terms used.’”]; People v. Tindall (2000) 24 Cal.4th 767, 772,[“Wherethe statute is clear, courts will not ‘interpret 25 awayclear language in favor of an ambiguity that does not exist.’].) The Orange County’s Opinion interpreting “computer mapping systems” as including computer data is also unreasonable given the statute’s emphasis on treating electronic records, (such as computer data) and software differently from one another.(See section 6254.9, subd. (d), [expressly cautioning that 6254.9’s computer software exception should not be read to “affect the public record status of information merely becauseit is stored in a computer.”]; Commission on Peace Officer Standards and Training v. Superior Court, (1997) 42 Cal.4th 278, [When construinga statute, the court's task is to select the construction that promotesrather than defeats the statute's general purpose, and avoidsa construction that wouldlead to unreasonableresults.].) Since the plain meaningof the statutory languageis unambiguous,it was error for the Orange County Opinionto resort to legislative history in the first instance. 2. Even if the statutory text is ambiguous, the proper next step is to apply constitutional and statutory mandates requiring narrow interpretation of the software exclusion. If the text of the statute were ambiguous as the Orange County Opinion claims, the proper next step in the statutory construction analysis would be to apply the constitutional mandate containedin Cal. Const., art. |, section 3, subd.(b), par. 2, which compels the narrower interpretation of the computer-software exclusion, and gives effect to the general statutory principle underlying the Public 26 Records Act that “access to information concerning the conductof the people's business is a fundamental and necessaryright of every personin this state.” (Section 6250.) (Commission on Peace Officer Standards and Training v. Superior Court, (1997) 42 Cal.4th 278, 290, [Where more than onestatutory construction is arguably possible, the court'stask is to select the construction that comports most closely with the Legislature's apparent intent, with a view to promoting rather than defeating the statutes’ general purpose.]; Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1043, [a court is not to pass upon the wisdom, expediency, or policy of voter enactments any more than it would enactments by the Legislature.].) Application of the fundamental purpose of the Public Records Act andArticle 1, Section 3 of the California Constitution resolves the purported statutory ambiguity in section 6254.9 withoutthe needto resort to legislative history. 3. The Opinion contains three major errors with respectto the legislative history of section 6254.9. In choosing betweenthe twoalternative interpretations of section 6254.9, the Opinionrelies heavily on legislative history of section 6254.9, added to the Public Records Act in 1988 by AB 3265. The Opinion contains three major errors inits legislative history analysis. 27 First, the Opinion does not recognize, as it should, that the word “software,” as used by both lay people and technical experts, never refers to data or databases. As just one example in the record below, the report of the Assembly Committee on Government Organization quoted by the Opinionat p. 9, contains the following summary of the bill enacting 6254.9: “Subject - Should computer software be exempt from the California Public Records Act?” There is no reason that a legislator reading this summary would expectthisbill as described to apply to GIS data or any other type of data. This summaryof thebill is only one of manyindicationsthat the legislature intended AB 3265to exclude only software, not data, from public-record status. This is not an isolated example; similar descriptions of the purpose of AB 3265 aboundin the legislative history. Second, the Opinion takes notice of the fact that “San Jose’s description of its computer mapping system includesno references to any mapping computer programs developedbyit.” (Opinion at 13, emphasis in original.) Butit errs in concludingonthis basis that San Jose, the bill’s sponsor, had nointerest in protecting its GIS software from disclosure under the PRA. The Opinion quotes a San Jose memorandum asfollows: “The City of San Jose, like many other governmentagencies[,] has developed various computer readable data bases, computer programs, computer graphics systems and other computerstored information at considerable research and 28 developmentexpense.” (Opinion at pp. 9-10 (emphasis added).) Express mention of the term “computer programs” contradicts the Opinion’s suggestion that San Jose had not developed computer programs(i.e. software), it wished to protect from Public Records Act disclosure. Third, the Opinion fails to account for the fact computer data wasalready protected from disclosure under the Public Records Act at the time section 6254.9 was enacted in 1988. Section 6256, then in force but since repealed, provided that “[a]ny person mayreceive a copy of any identifiable public record or copy thereof. Upon request, an exact copy shall be provided unless impracticable to doso. Computer data shall be provided in a form determined by the agency.”” Thus,at the time section 6254.9 was enacted, section 6256 provided the governmentthe discretion and thus the means to exclude electronic data, including GIS data, from disclosure. In spite of the fact the briefing below addressedthis significant point, the Opinion surprisingly ignoresit. That the PRA did not require the disclosure of electronic data, such as GISdata, at the time section 6254.9 was passedis further evidence thelegislature intended to limit 6254.9’s exclusion to computer software only -- not also computer data. 7 The provision quoted from section 6256 wasrepealed in 2000 when the legislature added section 6253.9 to the Public Records Act, which requires government to disclose computerdata in the computer readable format requested if held by the agency in that format. 29 D. The Case is Ripe for Supreme Court Review The Opinionin this case provides the proper contextfor the Supreme Courtto resolvethe issues presented above, and to resolve them now andnotlater. While section 6254.9 was added to the PRA in 1988, it was not until 2005 the legal question of whetherthat section applied to GIS data was addressed when Attorney General issued an opinion on the subject (88 Ops.Cal.Atty.Gen. 153), at the request of a memberof the State Legislature. Now,the question of whether GIS data falls within the definition of “computersoftware,” as that term is used in section 6254.9, has been litigated through the Court of Appealin two separate cases in two different districts. A full record has been establishedin this case below, with testimony and declarations of expert witnesses on both sides, and substantial briefing — two roundsin thetrial court, full briefing in the Court of Appeal, and six amicuscuriae briefs froma wide range of constituencies. After the Attorney General issued his opinion in 2005 declaring that GIS data is not “computer software” as defined in section 6254.9, many California counties changed their GIS data-distribution policies to conform, providing GIS parcel data for the direct cost of copying as mandatedby the Public Records Act. Following the 2009 Santa Clara case, which treated the 2005 Attorney General opinion favorably, it was relatively well settled that GIS data must be 30 disclosed in the electronic format requested pursuantto the Public Records Act. Thus, public agencies and consumersof data in both the public and private sectors have relied upon, and followed, the Attorney General’s and Santa Clara Court’s Opinions with respect to disclosure of GIS data. Should the Orange County Opinion stand, providers and users of GIS data will be left to grapple with conflicting guidance as to whether GIS data is subject to Public Records Act disclosure. The Supreme Courtis the best venue to resolve this conflict now, before morelitigation ensues. V.Conclusion For the foregoing reasons, Petitioner respectfully requests the Supreme Court grant its Petition for Review. Dated: July 11, 2011 Respectfully Submitted, . a i, tog i 4 “ i ‘& =*ya 4 U en Me ¥ ue ee é a a Sabtina Venskus Attorney for Petitioner, The Sierra Club 31 Certificate of Compliance Counsel of record herebycertifies that pursuant to Rule of Court 8.204(c)(1) the attached Respondent's Brief was produced ona computer and contains 6,446 words, not includingthis certificate or the tables of contents and authorities. Counsel relies on the word count of the Microsoft Word computer program used to preparethis brief. Dated: July 11, 2011 Respectfully Submitted, Wy A L/ “ ~Sabrina Venskus Attorney for Petitioner, The Sierra Club CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE SIERRA CLUB, Petitioner, Vv. G044138 THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; COUNTY OF ORANGE, Real Party in Interest. (Super. Ct. No. 30-2009-00121878- CU-WM-CJC) OPINION Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, James J. Di Cesare, Judge. Petition denied. Venskus & Associates, and Sabrina D. Venskusfor Petitioner. Michel & Associates and C.D. Michel for Members of the GIS 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. M. Rhead Enion for Academic Researchers in Public Health, Urban Planning and Environmental Justice as Amici Curiae on behalf of Petitioner. Meyer, Klipper & Mohr, Christopher A. Mohr, Michael R. Klipper; Coblentz, Patch, Duffy & Bass, Jeffrey G. Knowles, and Julia D. Greer for Consumer Data Industry Association, Corelogic, LexisNexis, The National Association of Profession Background Screeners, and the Software & Information Industry Association as Amici Curiae on behalf of Petitioner. Holme Roberts & Owen, 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 Communication LLC, doing business as Los Angeles Times, The Associated Press, Bay Area NewsGroup, Bloomberg News, Courthouse NewsService, 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, Citizen Media Law Project, Electronic Frontier Foundation, First AmendmentCoalition ofArizona, National Freedom of Information Coalition, Openthegovernment.org, The Reporters Committee for Freedom of the Press, and Society of Professional Journalists as Amici Curiae on behalfof 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. Best Best & Krieger and Shawn Hagerty for League of California Cities and California State Association of Counties as Amici Curiae on Behalf of Real Party in Interest. The issue in this case is whether the California Public Records Act(the Act) (Gov. Code, § 6250 et seq.) requires a governmentagencyto disclose to any requesting person (who pays the cost of duplication) the database associated with a geographic information system.’ In a petition for writ of mandate, Sierra Club asserts sucha right to a database developed by the County of Orange (the County).” The County argues that under section 6254.9 of the Act, the database is not a public record and therefore the County may chargea licensing fee for its disclosure. We conclude section 6254.9 excludes from the Act’s disclosure requirements a geographic information system database like the one at issue here. Therefore, the County may properly charge a licensing fee for its geographic information system database. FACTS Stipulated Facts The parties stipulated in writing to the following facts. The database sought by Sierra Club is the “OC Landbase,”i.e., “the County’s parcel geographic data in a GISfile format.” “GIS” stands for “geographic information system.” “‘GIS file format’ meansthat the geographic data can be analyzed, viewed, and managed with GIS software.” “The OC Landbaseis a parcel-leveldigital basemapidentifying over 640,000 parcels in Orange County with geographic boundaries 1 stated. All statutory references are to the Government Code unless otherwise 2 Thetrial court’s denial of Sierra Club’s petition for writ of mandateis “immediately reviewable by petition to the appellate court for the issuance of an extraordinary writ.” (§ 6259, subd.(c).) of parcels, Assessor Parcel Numbers [and] street addresses, with links to text information such as the name and addresses of the owner(s) of the parcels.” “The County currently distributes the OC Landbase in a GISfile format” “to membersof the public, if they pay a licensing fee and agreeto the license’s restrictions on disclosure and distribution.” The OC Landbasein a GISfile format does not contain any computer programs. The County agreed to provide Sierra Club with copies of the source documents containing the parcel related information (such as assessmentrolls and transfer deeds)“in Adobe PDFelectronic formator printed out as paper copies,”rather than in a GIS file format. But “Sierra Club cannotuse the analytical, display and manipulation functions of its GIS software on the OC Landbaseif the County produces {the information] in Adobe PDF formatorprinted out on paper.” The Proceedings Below Sierra Club asked the superior court to issue a writ of mandate “compelling the County to provide the OC Landbasein a GIS file format to the Sierra Club for a fee consisting of only the direct costs of [duplication], and with no requirementthat the Sierra Club execute a non-disclosure or other agreement with the County.” Before ; By order dated October 8, 2010, we granted Sierra Club’s request for judicial notice of parts of the legislative history of section 6253.9 and official ballot information on Proposition 59 (addingarticle 1, section 3(b) to the state Constitution). Wehereby grant the County’s motion for judicial notice of Assembly Bill No. 1293 (1997-1998 Reg. Sess.), and a Sierra Club amici’s request for judicial notice ofits exhibits A throughL,i.e., the court records from County ofSanta Clara v. Superior Court (2009) 170 Cal.App.4th 1301, 1326 (Santa Clara), the legislative history of section 6253.9, and Assembly Bill No. 1968 (2007-2008 Reg. Sess.). We hereby deny Sierra Club’s request for judicial notice of the County’s GIS needs assessment study and a Sierra Club amici’s request for judicial notice of exhibits M through X,consisting of newsarticles and internet web pages. ruling, the court heard oral argument, allowed extensive briefing, and conducted a two- day evidentiary hearing. At the evidentiary hearing, Sierra Club’s expert witness (Bruce Joffe) read aloud the following definition of “GIS” from a specialized technical dictionary on geographic information systems: “An integrated collection of computer software and data used to view and manage information about geographic places and [analyze] spatial relationships and modelspatial processes.” Joffe opined this definition was a “misstatement” because “GIS is software that integrate[s] data models and other spatial processes.” But on cross examination, Joffe admitted that he “used”the following definition for “GIS” in a 2003 document: “Geographic Information System, the collection of computers, software, databases, and data that enable geospatial data to be received, manipulated, displayed, and distributed.” The court found that the “County offered persuasive testimony and evidencethat 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 found the County showed “that all of the revenue collected from licensing the OC Landbasein a GISfile format accounts for only 26% of the costs to keep the OC Landbaseupto date.” The court, identifying the issue as “whether the OC Landbasein a GISfile format falls within the scope of Section 6254.9’s computer mapping system exception” from public disclosure, held that “Section 6254.9’s legislative history indicates that it was designed to protect computer mapping systems from disclosure, including the data component of such systems, and to authorize public agencies to recoup the costs of developing and maintaining computer mapping systemsbyselling, leasing, or licensing the system.” DISCUSSION The Act requires government agencies to make public records promptly available to any requesting person “upon paymentof fees covering direct costs of duplication, or a statutory fee if applicable,” unless the record is “exempt from disclosure by express provisions of law.” (§ 6253, subd. (b).) “‘Public records’” are defined to include “any writing containing information relating to the conductofthe public’s business prepared, owned, used, or retained by anystate or local agency regardless of physical form or characteristics.” (§ 6252, subd. (e).) The “Act states a number of exemptions that permit government agencies to refuse to disclose certain public records.” (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1282.) “A qualifying agency refusing to disclose a public record must ‘justify’ its decision ‘by demonstrating that the record . . . is exempt under’ one of the” Act’s express exemption provisions. (/bid.) Atissue in this case is the Act’s exclusion from mandatory disclosure for “computer mapping systems” within the meaning of section 6254.9. Undersection 6254.9, subdivision (a),“[c]omputer software developed by stateor local agency is not itself a public record” under the Act and therefore the agency may“sell, lease, or license” it.’ (Italics added.) Subdivision (b) of section 6254.9 defines “‘computer software’”: “As usedin this section, ‘computer software’ includes computer mapping systems, computer programs, and computer graphics systems.” Section 6254.9 further provides: “(c) This section shall not be construed to create an implied warranty . . . for errors, omissions, or other defects in any computer software as provided pursuantto this section. ‘ In this opinion, we refer to the exclusion from public disclosure established by section 6254.9 as an exclusion, rather than an exemption, since governmentally- developed “computer software” within the meaning of that statute is not a public record. [] (d) Nothingin this section is intended to affect the public record status of information merely becauseit is stored in a computer. Public records stored in a computer shall be disclosed as required by this chapter. [§] (e¢) Nothing in this section is intended to limit any copyright protections.” Both parties agree that the OC Landbase is a GIS database.° They disagree on whether a computer mapping system, within the meaning of section 6254.9, includes only the GIS computer program,or alternatively, the GIS computer program and database. Sierra Club argues “the correct interpretation of section 6254.9 is that computer databases containing GIS data are not considered software under the [Act],” relying heavily on standard dictionary definitions of “computer software” and “data.” The County contends the “OC Landbase data, whichis in a GIS file format, is part of a computer mapping system” and therefore excluded from disclosure undersection 6254.9. Section 6254.9 does not define the term “computer mapping systems.” We must therefore interpret section 6254.9 in accordance with established principles of statutory construction. Our standard of review is de novo. (An Independent Home Support Service, Inc. v. Superior Court (2006) 145 Cal.App.4th 1418, 1424.) “Our fundamental task in interpreting a statute is to determine the Legislature’s intent so as to effectuate the law’s purpose. Wefirst examinethe statutory language,giving it a plain and commonsense meaning. We do not examinethat languagein isolation, but in the context ofthe statutory framework as a wholein order to determineits 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 consequencesthe Legislature did not intend. If the statutory language permits more than one reasonable interpretation, courts may consider otheraids, such asthe statute’s > Wedo not define what constitutes a “GIS database,” since the only question before us is whether the OC Landbase (an undisputed GIS database) is excluded from public disclosure under section 6254.9. purpose, legislative history, and public policy.” (Coalition ofConcerned Communities, Inc. v. City ofLos Angeles (2004) 34 Cal.4th 733, 737.) Section 6254.9’s language is susceptible to both parties’ interpretations, i.e., a “computer mapping system” might or might not include data along with the associated computer program. We must focus on the ambiguous phrase “computer mapping system,”not the standard dictionary meaning of “computer software,” because section 6254.9 contains its own definition of computer software. “‘When legislature defines the languageit uses, its definition is binding upon the court even though the definition does not coincide with the ordinary meaning of the words. .. .°” (Cory v. Board ofAdministration (1997) 57 Cal.App.4th 1411, 1423-1424.) Moreover,if dictionary definitions controlled the outcomein this case, the word “system”is defined as a “complex unity formed of manyoften diverse parts subject to a commonplan or serving a commonpurpose.” (Webster’s 3d New Internat. Dict. (2002) p. 2322.) Thus, a computer mapping system should include morethansolely a computerprogram component. (In addition to computer data and programs, a computer system could also include hardware orinfrastructure, although these last two components cannot be physically copied and disclosed.) We mustthusinterpret “computer mapping system,”as used in section 6254.9, to determine whether the term includes a computer mapping database. We tum first to section 6254.9’s legislative history.® As originally introduced in the Assembly on February 11, 1988, the statute allowed a governmentagencytosell “proprietary information”and defined that term to “include[] computer readable data bases, computer programs, and computer graphics systems.” An Assembly amendmentdated April4, 6 Thetrial court granted Sierra Club’s request for judicial notice of the legislative history of section 6254.9. Pursuant to Evidence Codesection 459, subdivision (a), we take judicial notice of the same material in the record. 1988 (first amended bill) changed the term “proprietary information” to “computer software,” but kept the same definition quoted above. The first amended bill also added a statement that nothing in the section was intendedto affect the public record status of information “merely becauseit is stored in a computer.” A Senate amendment dated June 9, 1988 (second amendedbill) changed the term “computer readable data bases”in the definition of computer software to “computer mapping systems.” A Senate amendment dated June 15, 1988 (final amended bill) added the sentence, “Public records stored in a computer shall be disclosed as required by this chapter.” The City of San Jose sponsored the bill. A report of the Assembly Committee on Government Organization stated the first amendedbill’s purpose wasto allow San Jose, which had “developed various computer readable mapping systems, 99 66graphics systems, and other computer programs,” “to sell, lease, or license the softwareat a cost greater than the ‘direct costs of duplication.’” (See Hutnick v. United States Fidelity & Guaranty Co. (1988) 47 Cal.3d 456, 465 [legislative committee reports are cognizable legislative history].) The report stated San Jose was “concerned about recouping the cost of developing the software.” The report stated the “bill draws a distinction between computer software and computer-stored information” and “declares that information is not shielded from the [Act] ‘merely becauseit is stored on a computer.”” A San Jose memorandum (contained in thelegislative file of the Senate Committee on Governmental Organization) stated: “The City of San Jose, like many other government agencies[,] has developed various computer readable data bases, 7 The bill originally proposed to amendsection 6257 (repealed in 1998), as opposed to enacting a newsection. . The first amended bill stated that computer software “developed or maintained by” a government agencyis not a public record. The second amendedbill deleted the phrase,“or maintained,” due to the Finance Department’s observation that if an agency did not develop the particular software, it did not own such software and could not legally lease or sell it without the owner’s consent. 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 developmentof a data base for a computer mapping system known as the Automated Mapping System (AMS). [{] The AMSis 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 mapsfor specialized uses, such as fire response, sewercollection, or police beat maps. Public Works estimates that developmentcosts to date have exceeded $2 million dollars.” (Quarterman v. Kefauver (1997) 55 Cal.App.4th 1366, 1373 [“[s]tatements by the sponsoroflegislation maybeinstructive”].) The Department of Finance opposedthe first amended bill on April 28, 1988, noting that the inclusion of databases in the definition of “computer software” was contradictory to the statute’s statement that nothing in the section was intendedto affect the public record status of information merely becauseit is stored in a computer. The contradiction resulted because “data bases are organizedfiles of record information subject to public records laws” and making them subject to sale or licensing was contrary to the people’s right to access public information undersection 6250.° The “Fiscal Analysis” section stated: “The potential revenue generated by the sale of computer programs, graphics, and information data bases could be substantial depending on the price of the information, program or graphics, and conditions of the sales or licensing agreement.” 8 The Departmentof Finance also objected that the bill would permit the state to sell software or data bases which it maintained and did not own, andthe bill did not protect the state from warranty liability. The second amendedbill addressed both these concerns in subdivisions (a) and (c) of section 6254.9. 10 Asnoted above, the Senate amendedthe bill on June 9, 1988 to, inter alia, revise the statute’s definition of computer software to include “computer mapping systems” instead of “computer readable data bases.” The Departmentof Finance then droppedits opposition to the bill. The Finance Department’s June 16, 1988 report identified its position on the second amendedbill as “neutral,” noting in the “Specific Findings”sectionsthatthe bill “specifically includes computer mapping systemsas computer software, thereby permitting their sale” and that the bill “specifies that any data that may be stored on a computerstill retains its public record status.” The “Fiscal Analysis” section of the Finance Department’s report continued to state: “The potential revenue generated by the sale of computer programs, graphics, and information data bases could be substantial depending on the price of the information, program or graphics, and conditionsofthe sales or licensing agreement.” (Italics added.) A Senate staff analysis of the second amendedbill stated the bill’s purpose wasto “clarify that computer software is not itself a public record and to authorize a public agencyto sell, lease, or license the software at a cost greater than [the cost of duplication]. The bill would permit the city of San Jose and other governmentagencies to recoup development costs of computer databases sold to the public.” The report describedthe statute as specifying that “‘computer software,’ as defined”is notitself a public record. (Italics added.) The report noted that San Jose “has developed various computer readable data bases and other computer stored information for variouscivic planning purposes” and that a “numberofprivate parties have requested use ofthecity’s software under the [Act] for profit-making purposes.” A Senate Rules Committee report concerning the final amendedbill stated in the section titled “Arguments in Support” that the bill “would permit the city of San Jose and other governmental agencies to recoup development costs of computer databasessold to the public.” 1] An Assembly report concurring in the Senate amendmentsto the final amendedbill stated that the Senate amendments “[s]pecifically reference computer mapping systems and makeother technical revisions.” The “Comments”section of the report states that San Jose “has developed computer readable mapping systems, graphics systems, and other computer programsfor civic planning purposes”andthat the “city is concerned about recouping the cost of developing the software.” The Department of Finance,in its June 20, 1988 report stating its neutral position on the final amendedbill, reiterated its finding that the bill permitted the sale of computer mapping systems and that the potential revenue generated by the sale of ‘information data bases” could be substantial. The Director of the Department of Finance signed an identical report on August 9, 1988.” A Republican analysis for the Assembly Governmental Organization Committee stated the final amendedbill revised the Act “to allow agencies to recover development and maintenancecosts of computer software by selling or licensing computer programs and data bases that have been developed sometimes at considerable public expense. Passing such costs along to those who will use them for business- oriented purposesis in the taxpayers’ best interest. [{] This does not affect the ability of the public to obtain information stored on computers.” (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1297 [Republican analysis of Assembly bill showed legislative history and intent].) The bill passed unanimously through the Assembly and the Senate with support from manylocal governments and no known opposition. On August 22, 1988, the Governorsignedthe bill adding section 6254.9 to the Government Code. 7 Sierra Club postulates that the Department of Finance’s references to information data bases “were unintentional and morelikely a case of editing oversight.” But we cannot presumethat a passage in a government documentis simply the product of an editing mistake, particularly a document which was signed and submitted on four separate dates by different individuals. 12 Thelegislative history of section 6254.9 reveals that the computer mapping systems developed by San Jose and other governmententities consisted of databases. San Jose’s description of its computer mapping system includes no references to any mapping computer programs developedby it. Thelegislative history also reflects a concern that the originalbill’s definition of computer softwareto includeall “computer readable data bases” was too broad, encompassing information potentially desired by credit bureaus, title companies, and newspapers. As noted by the Department of Finance, a database is simply an organizedfile of information. Thus, the expansive phrase “computer readable data bases” would have excluded from disclosure all organized information stored on a computer. Balancing these considerations, and based on section 6254.9’s legislative history, we interpret “computer mapping systems”to include a GIS database like the OC Landbase. This interpretation effectuates the bill’s purpose of allowing San Jose to recoup the developmentcosts ofits database known as the Automated Mapping System. Significantly, San Jose also sought the ability to recoup the cost of developing its computer graphing systems,and asa result, “computer graphing systems”are also includedin section 6254.9’s definition of computer software.'” The Legislature, by substituting “computer mapping systems”for “computer readable data bases”in the statutory definition of computer software, narrowedthe definition sufficiently to preserve the public records status of most computer-stored information, while excluding from public disclosure a narrow andspecific type of database(i.e., a computer mapping database). A computer mapping databaseis not excluded “merely” becauseit is stored on a computer, but because its developmentis time-consuming andcostly and the The definition of computer graphing systemsis not beforeus. 13 Legislature has madea policy decision that local governments should be allowed to recoup someoftheir development costs.'! If “computer mapping systems” were interpreted to include only computer programs,it is unclear what purpose the inclusion of the phrase in section 6254.9 was intended to achieve, since the legislative history does not show that any local government or agency soughtthe ability to recoup the developmental costs of a proprietary computer program associated with a mapping system. Indeed, GIS software is sold by third party vendors, weakening any market a government might havefor its proprietary computer program associated with a mapping system. Here, the County licenses mapping software from third parties; similarly, Sierra Club uses “a program called Arc Map.” Furthermore, if “computer mapping systems” denotes only mapping computerprograms, then the phrase is superfluous since section 6254.9’s definition of computer software already includes computer programs. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 22 [courts avoid “constru[ing] statutory provisions so as to render them superfluous”]; Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 234[if two terms have same meaning, oneis “mere surplusage”].) A court interpreting a statute should try to give “effect ..., whenever possible, to the statute as a whole and to every wordand clause thereof, leaving no part or provision useless or deprived of meaning.” (Weber v. County ofSanta Barbara (1940) 15 Cal.2d 82, 86.) Having reviewedthe legislative history of section 6254.9, we turn to the statutory framework of which the section is a part. The Act’s statutory schemeis consistent with our interpretation that computer mapping databases are excluded from public disclosure. The Act exempts manytypesof information from disclosure ($§ 6254 — 6254.29) without regard to whether the data is stored in a computer. Thus, section 6254.9, subdivision (d)’s statementthat “[p]ublic records stored in a computer " Here, the County contends it has spent over $3.5 million during thelast five years to maintain the OC Landbase. 14 shall be disclosed as required by this chapter” is not a mandate that all computer-stored information must be divulged underthe Act. Sierra Club argues that section 6253.9 of the Act requires the County to disclose the OC Landbasein the electronic format requested by Sierra Club. Butsection 6253.9 applies to electronically formatted “information that constitutes an identifiable public record not exemptfrom disclosure pursuant to this chapter” and requires such information to be made “available in an electronic format when requested by any person ....” (d., subd. (a), italics added.) Thestatute’s legislative history reveals that an “earlier version”failed to specify its nonapplication to information exempted from disclosure under the Act; this earlier version drew opposition “related to the proprietary software and security exemption,” which opposition was withdrawnafterthe bill was amended.'* Furthermore, a specific provision (such as section 6254.9 regarding eee 399computer mapping systems) “‘prevails over a general one relating to the same subject. (Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 942.) Looking outside the Act, other California statutes are consistent with our interpretation that a computer mapping system includesthe integrally associated database. The Barry Keene Underground Storage Tank Cleanup Trust Fund Act of 1989 (Health & Saf. Code, § 25299.10 et seq.) concerns undergroundpetroleum storage tanks. Article 12 thereof requires the State Water Resources Control Board to “upgradethe data base”to “include the establishment of a statewide GIS mapping system... .”!? (Health & Saf. Code, § 25299.97, subd.(b), italics added.) The databaseis to be “expand[ed]”to " Sierra Club notes one purpose of section 6253.9 was to obviate the duplication cost of making paper copies. Here,the parties stipulated the County offered Sierra Club the information in “Adobe PDFelectronic format or printed out as paper copies....” 8 The database covers “discharges of petroleum from underground storage tanks.” (Health & Saf. Code, § 25296.35 [formerly § 25299.39.1].) 15 “create a cost-effective GIS mapping system that will provide the appropriate information to allow agencies to better protect public drinking water wells... .” (/d., subd. (c)(1), italics added.) “GIS mapping system”is definedas “a geographic information system that collects, stores, retrieves, analyzes, and displays environmental geographic data in a data basethat is accessible to the public.” (/d., subd. (a)(3).) Although the state has chosen to makethis particular GIS database accessible to the public, thereby foregoingits rights under section 6254.9, whatis pertinent to our inquiry here is that the databaseis an integral part of the GIS mapping system. Similarly, the Elder California Pipeline Safety Act of 1981 (safety regulation of hazardousliquid pipelines) contains a virtually identical definition of “GIS mapping system.” (§ 51010.5, subd. (i).) In addition, Health and Safety Code section 25395.117, subdivision (b) requires the Department of Toxic Substances Control to “revise and upgrade the department’s database systems. . . to enable compatibility with existing databases ofthe board, including the GIS mapping system established pursuant to Section 25299.97.” (Italics added, see Health & Saf. Code, § 25395.115, subd. (d).)"* Sierra Club points out that the California Constitution mandates that a statute be “narrowly construedifit limits” the people’s right of access to government 4 Outside California, statutes of Illinois, lowa, Maryland, Nevada, and North Carolina exempt GIS databases from public disclosure or allow governmententities to charge fees for them. (5 Ill. Comp.Stat. 140/7, subd. (1)(i) [protecting “[v]aluable formulae, computer geographic systems, designs, drawings and research data obtained or produced by any public body”]; lowa Code, § 22.2, subd. (3)(b) [“geographic computer database”]; Md. Code Ann., State Gov’t. § 10-901 subd. (f)(2) [“‘System’ includes data that define physical and nonphysical elements of geographically referenced areas’; Nev. Rev Stat. Ann., § 23.054 [‘‘geographic information system’ means a system of hardware software and data files on which spatially oriented geographical information is digitally collected, stored, managed, manipulated, analyzed and displayed”); N.C. Gen.Stat., § 132-10 [reasonable fee may be charged for “Geographical information systems databases and data files”].) > 16 information. (Cal. Const., art. I, § 3, subd. (b)(1) & (2).) We have construed section 6254.9 as narrowly asis possible consistent with its legislative history. Moreover, article 1, section 3, subdivision (b)(5) of the California Constitution specifies it “does not repeal or nullify, expressly or by implication, any . . . statutory exception to the right of access to public records . . . that is in effect on the effective date of this subdivision . . . .” Section 6254.9 wasin effect on November3, 2004, the subdivision’s effective date. Weturn to Sierra Club’s remaining counter arguments. Sierra Clubrelies heavily on an Attorney General opinion which concluded that a GIS database does not constitute a computer mapping system for purposesof section 6254.9. (88 Ops.Cal.Atty.Gen. 153 (2005).) But that opinion considered only the language of section 6254.9 and did not examine (or even mention)its legislative history. The opinion contains scant analysis of the issue: “[T]he term ‘computer mapping systems’in section 6254.9 does not refer to or include basic maps and boundary informationperse (i.e., the basic data compiled, updated, and maintained by county assessors), but rather denotes unique computerprogramsto process such data using mapping functions — original programs that have been designed and produced by a public agency. (See, e.g., §§ 6254.9, subd. (d), 6253.9, subd. (f) [distinguishing ‘record’ from ‘software in which [record] is maintained’ ], 51010.5, subd. (i) [defining ‘GIS mapping system’ as system ‘that will collect, store, retrieve, analyze, and display environmental geographic data ....’ (italics added)]; see also Cadence Design Systems, Inc. v. Avant! Corporation (2002) 29 Cal.4th 215 [action between two ‘software developers’ who design ‘place and route software’]; Edelstein v. City and County ofSan Francisco (2002) 29 Cal.4th 164, 171 [delay in implementation of elections system because necessary ‘software’ notyet ‘developed’ and tested]; Computer Dict. (3d ed. 1997) p. 441 [defining ‘software’ as ‘{c]omputer programs; instructions that make hardware work’]; Freedman, The Computer Glossary: The Complete Illustrated Dict. (8th ed. 1998) p. 388 [‘A common misconceptionis that softwareis also data. It is not. Softwaretells the hardware how to 17 process the data. Software is “run.” Data is “processed”’].)’” We have already discussed mostof the authorities on which the Attorney Generalrelied, i.e., sections 6254.9, subdivision (d) (public record status of information stored in a computer), 6253.9 (requested electronic format), and 51010.5 (Elder California Pipeline Safety Act of 1981), and standard dictionary definitions of “software.” The relevance of Cadence Design Systemsto the issue before us is unclear. There, the parties designed “‘place and route’ software, which enables computer chip designers to place and connecttiny components on a computer chip,” and the issue involved trade secret law. (Cadence Design Systems, at p. 218.) In any case, opinions of the Attorney General are “not binding on” the courts. (City ofLong Beach v. DepartmentofIndustrial Relations (2004) 34 Cal.4th 942, 952.) . Finally, Sierra Club relies on Santa Clara, supra, 170 €al.App.4th 1301. Butthe appellate court there declined to consider whether Santa Clara County’s GIS basemap was a computer mapping system excluded from disclosure under section 6254.9 because the issue wasraised only by Santa Clara County’s amici curiae. (Santa Clara, at p. 1322, fn. 7.) Instead, the case examined whether Santa Clara County’s GIS basemap was exempt from public disclosure under(1) section 6255 of the Act(the “catchall exemption” allowing an agencyto justify nondisclosure by showing the public interestis best served by nondisclosure) (Santa Clara, at p. 1321), (2) copyright law, or (3) “federal law promulgated under the Homeland Security Act”(id. at p. 1321). The Court of Appeal stated in dicta in a footnote that Santa Clara County had concededinthe trial court that its basemap was a public record andthat this “concession appears well founded,” based on the Attorney General’s opinion discussed above. (/d. at p. 1332, fn. 9). The Court of Appealstated it had taken judicial notice of, but did not rely on, the legislative history of section 6254.9 “in resolving this proceeding.” (Santa Clara,at p. 1312 & fn. 4.) Indeed, the party requesting disclosure of the basemap had argued 18 against the court’s taking judicial notice of section 6254.9’s legislative history. (Santa Clara, at p. 1312, fn. 4.) Based on ourreview ofthelegislative history and purposeof section 6254.9, the Act’s statutory scheme, and other relevant statutes, we conclude the County has met its burden of proving that its OC Landbaseis part of a computer mapping system and therefore excluded from public disclosure. (Board of Trustees of California State University v. Superior Court (2005) 132 Cal.App.4th 889, 896 [agency opposing disclosure bears burden of proving exemption applies].) Relevant actions taken by the Legislature subsequent to the passage of section 6254.9 do not change our conclusion. Almost a decade after enacting section 6254.9, the Legislature passed Assembly Bill No. 1293, supra, adopting the Strategic Geographic Information Investment Act of 1997 (proposed § 8301 et seq.). But the Governor vetoed the bill. (City ofRichmond v. Commission on State Mandates (1998) 64 Cal.App.4th 1190, 1199 [bill passed by Legislature but vetoed by Governor was cognizable and relevant history].) The legislation would haveestablished state funding through grants “for the development of new, and maintenanceof, framework data bases for geographic information systems.” (Legis. Counsel’s Dig. Assem. Bill No. 1293, supra, p. 2) The Legislature recognized “the high cost of creating and maintaining geographic information data bases,” and stated,“Public agency policies for pricing the data range from covering the cost of data duplication, to recouping the costs from compilation and maintenanceof the data bases.” (Assem. Bill. No. 1293, supra, § 1, subd. (m).) The Legislature expressly intended “to provide an alternative source of funds for public agencies to create and maintain geographic information data bases without having to sell the public data.” (Assem. Bill No. 1293, supra, § 1, subd. (n).) Significantly, the proposedlegislation defined “Geographic information system”as “an organized collection of computer hardware, software, geographic information, and personnel designed to efficiently capture, store, update, manipulate, analyze, and display 19 all forms of geographically referenced information.” (Assem. Bill No. 1293, supra, § 2; Proposed Gov.Code, § 8302, subd.(f).) The proposed legislation would have required “any recipient of a grant [to] make data developed or maintained with grant funds available to disclosure under the [Act] and require that the electronic data . . . be placed in the public domainfree of any restriction on use or copy.” (Assem. Bill No. 1293, supra, § 2; Proposed Gov. Code, § 8306, subd. (a)(7).) A decadelater, Assembly Bill No. 1978 (2007-2008 Reg. Sess.) was introduced to amendsection 6254.9 by defining computer mapping systems. Proposed section 6254.9, subdivision (b)(2) would have provided: “Computer mapping systems include, assembled modeldata, metadata,andlistings of metadata, regardless of medium, and tools by which computer mapping system recordsarecreated, stored, andretrieved.” The bill was referred to two committees, but they took no action on it. A Sierra Club amici argues that because the bill “did not makeit out of committee,” the Legislature effectively ratified the Attorney General’s interpretation of “computer mapping systems” to exclude data. But ““‘failure of the bill to reach the [chamber] flooris [not] determinative of the intent of the [chamber] as a whole that the proposedlegislation should fail.’” (Prachasaisoradej v. Ralphs Grocery Co., Inc. (2007) 42 Cal.4th 217, 243- 244.) Moreover, legislative acquiescence may be inferred “whenthere exists both a well- developed bodyof law interpreting a statutory provision and numerous amendmentsto a statute withoutaltering the interpreted provision.” (Olson v. Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1156.) Neither of those conditions is met here. Sierra Clubstresses the potential impact of our decision, warning that geographic data is increasingly used by government agencies and the public. We reiterate that the OC Landbase is excluded from disclosure because it is a basemap that constitutes an integral part of a computer mapping system, not simply becauseit contains some geographic data. Section 6254.9 must be interpreted narrowly to exclude from 20 disclosure only a GIS database such as the OC Landbase. (Cal. Const., art. 1, § 3, subd. (b)(2).) By enacting section 6254.9 in 1988, the Legislature encouraged and enabled local governments to develop and maintain computer mapping systems by allowing the agencies to recoup someoftheir costs.'° Whetherthe increasing use of GIS data in our society requires reconsideration of section 6254.9’s exclusion from disclosure is a matter of public policyfor the Legislature to consider. (In re Marriage of Tavares (2007) 151 Cal.App.4th 620, 628 (the Legislature, not the judiciary, determines public policy].) DISPOSITION The petition for extraordinary writ is denied. IKOLA,J. WE CONCUR: O’LEARY, ACTINGP.J. MOORE,J. IS In the County’s consolidated answerto Sierra Club’s various amici, the County states such amici praise “the usefulness and functionality of computer mapping systems.” The County argues it spends “millions of dollars to maintain and update the OC Landbase”precisely becauseofits “greatutility,” and that without licensingfees, the County would be forced to reduce services. 21 G044138 Sierra Club v. The Superior Court of Orange County Superior Court of Orange County Sabrina D. Venskus Venskus & Associates, P.C. 2) S. California St., Ste. 204 Ventura, CA 93001 The Superior Court of California, County of Orange Attn: Hon. James J. Di Cesare, Dept. C18 700 Civic Center Dr., W. Santa Ana, CA 92701 Office Of The County Counsel | 333 W. Santa Ana Blvd., Ste. 407 Santa Ana, CA 92702 Carl Dawson Michel Michel & Associates P.C. 180 E. Ocean Blvd., Suite 200 Long Beach, CA 90802 : Shawn David Hagerty Best Best & Krieger LLP 655 W Broadway 15FL San Diego, CA 92101 Michael William Stamp 479 Pacific St Ste 1 Monterey, CA 93940 M. Rhead Enion UCLASchool ofLaw 405 Hilgard Ave Los Angeles, CA 90095 Julia D. Greer Coblentz Patch et al LLP | Ferry Bldg #200 San Francisco, CA 94111] Rachel Elizabeth Matteo-Boehm Holme Roberts & Owen LLP 560 Mission St 25FL San Francisco, CA 94105 Proof of Service L Sharon Emery declare: Iamover the age of 18 years and not a party to this action. My business address is 21 South California Street, Suite 204 Ventura, CA 93001: Iam readily familiar with the business practice at my place of business for collection and processing of correspondence for mailing with the United States Postal Service. In the ordinary course of business, correspondence so collected is deposited with the United States Postal Service the same day. On July 11, 2011, at my place of business, I placed the following document: Petition for Review After a Decision by the Court«of Appeal and an unsigned copyof this declaration for deposit in the United States Postal Service in a sealed envelope, with postage fully prepaid, addressed to the following persons, for collection and mailing on that date following ordinary business practices: Nicholas S. Christos The Superior Court of California Mark D.Servino County of Orange Rebecca Leeds Department C-18 Office of the County Counsel 700 Civic Center Drive, West 333 W. Santa Ana Bivd., Suite 407 Santa Ana, CA 92701 Santa Ana, CA 92701 Respondent Attorneys for Orange County, Real Party in Interest Clerk of Court California Court of Appeal Fourth Appellate District Division Three 601 W. Santa Ana Blvd. Santa Ana, CA 92701 I certify and declare under penalty of perjury under the lawsof theState of California that the foregoing is true and correct. oN _S ) po" Date: July 11, 2011 WAT Lf \ Shar gnEmmery nomen susiean,* eee