The Reporters Committee  for Freedom of the Press did not like a federal appeals decision upholding a law restricting access to Virginia state records by non-residents. The court ruled that the restriction was not unconstitutional.

The Reporters Committee felt the court should have considered the effect of the restriction on smaller journalistic enterprises. -db

From a commentary by The Reporters Committee  for Freedom of the Press, February 1, 2012.

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A new House bill to block public access to publicly-funded research is nothing new. Efforts have been underway since 2008 to roll back the law that requires public access.

The book publishing industry backs the bill claiming that the current policy of posting public funded findings online undercuts their business.

From The Scientist, January 9, 2012, by Bob Grant.

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California Senator Leland Yee of San Francisco intends to introduce a number of bills in 2012 to give the public greater access to the workings of their government.

The bills include SB 1000 keeping the California Public Utilities Commission from withholding information about their regulation of PG&E responsible for a recent catastropic fire and SB 1001 that would improve the state’s campaign finance and lobbying database. The database has crashed several times in the past and needs updating. -db

From the San Francisco Bay Guardian, January 3, 2012, by Steven T. Jones.

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The U.S. 9th Circuit Court of Appeals ruled that  court documents in case brought by Apple against a maker of Mac computer clones were public.

Apple claimed that the documents contained “compelling trade secrets”  about the Mac OS X operating system. -db

From The Reporters Committee for Freedom of the Press, January 6, 2012, by Kristen Rasmussen.

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The Anaheim City Attorney is investigating an e-mail sent by a planning department official ordering employees to purge unnecessary records at the risk of disciplinary action.

The order came after the Voice of OC filed a California Public Records Act request for communications to and from city council members. -db

From the Voice of OC, January 4, 2012, by Adam Elmahrek.

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Medicare is making its database of claims available to the public to allow assessment of doctors. A court ruling has blocked access to this information for decades.

Critics of the release warn that the data could be easily misinterpreted in assessing doctors. -db

From KSPR (ABC), December 5, 201, by Joanna Small.

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In a case brought by the Los Angeles Times, the Pasadena Sun and the Sacramento Bee, a Sacramento Superior Court judge ordered the California Assembly to release budget records under the California Public Records Act.

Lawyers for the Assembly did not participate in oral arguments before the judge last week. -db

From the Los Angeles Times, December 5, 2011, by Joe Piasecki.

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A California appeals court ruled that a man who wanted to find out if he were registered in the Domestic Violence Restraining Order System could not have access under the Information Practices Act of 1977.

A judge had earlier ruled that the registry was exempt under the California Public Records Act. -db

From the Metropolitan News-Enterprise, December 5, 2011, by a MetNews Staff Writer.

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The  Tennessee judge presiding over the lawsuit over the return of an adopted 9-year-old boy to Russia ruled that the court documents be unsealed.

A court memo indicated that there were no facts presented to justify sealing the case and that the 9-year-old was living in Russia far from the harsh light of publicity about the case. -db

From The Reporters Committee for Freedom of the Press, November 23, 2011, by Kristen Rasmussen.

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If you’re worried about natural gas pipelines running near your home or business, prepare for a long battle to get key information from California’s Public Utilities Commission. Under a 60-year-old law, vast numbers of documents — including regulatory reports and safety studies — are secret, the San Francisco Chronicle reports.

What’s more, PG&E often has the last word on what the public will be able to see.

A Chronicle survey shows that most states routinely make such documents available to the public.

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The American Immigration Council is charging that Homeland Security is blocking the release of records alleged to show how they interfere with undocumented people’s right to legal counsel.

The Council filed a request for the records under the Freedom of Information Act but has only received photocopies of pages from manuals and not the records of conversations between customs and non-citizens. -db

From the Courthouse News Service, November 10, 2011, by Ryan Abbott.

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Saying they had already exceeded disclosure requirements on budget records, the California Legislature and Assembly said the records of correspondence about the disbursement of taxpayer money were exempt from disclosure.

The Los Angeles Times and Sacramento Bee requested the records to investigate  a legislator’s claim that the Assembly Speaker was cutting his spending allowance because he voted against the state budget. -db

From the Courthouse News Service, November 9, 2011, by William Dotinga.

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After uncovering $60 billion in contractor waste and fraud in Iraq and Afghanistan, the Commission on Wartime Contracting buried its internal records for 20 years.

The Commission did release 8 reports and publish recommendations to avoid waste and fraud, but the decision to block access to the internal records and source material prevents the public and nonprofits from building on the work of the Commission, writes Jake Wiens, an investigator for POGO.  -db

From a commentary for the Project on Government Oversight (POGO), November 1, 2011, by Jake Wiens.

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A federal district judge upheld a state law allowing the release of names of those donating $100 or more to political campaigns. The supporters of Proposition 8 banning same-sex marriage in California wanted to withdraw the information claiming that the donors were at risk.

Prop. 8 supporters said they had been harassed, vandalized, and received  hate mail and death threats. -db

From the San Francisco Chronicle, October 22, 2011, by Bob Egelko.

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Frustrated by delays  and heavy redactions, the Los Angeles Times is suing for the release of records concerning the deaths of children under the supervision of the L.A. County Department of Children and Family Services. -db

From the Los Angeles Times, September 15, 2011, by Garrett Therolf.

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Texas Gov. Rick Perry, whose campaign for president has faulted Federal Reserve Chairman Ben Bernanke for purported failure to open the workings of the Fed to public view, has “adopted policies that shroud his own office in a purposeful opaqueness that confounds prying reporters – or any member of the public questioning his policies,” the Houston Chronicle reports.

Perry’s approach contrasts with another former Texas governor, George W. Bush, who revealed voluminous records of his appointments, contacts with lobbyists and campaign contributors, and time spent on the job, the Chronicle said.

Many of the documents Perry has withheld relate to contracts involving state money and companies headed by his supporters.

Perry’s office says he is following the law and has championed transparency by posting the check register for the governor’s office online.

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The 7th Circuit Court of Appeals upheld a Wisconsin prison rule keeping prisoners from receiving documents under the state’s public records act that do not refer to the prisoner. The prisoner had circumvented the public records act by asking his grandmother to obtain the documents. -db

From the First Amendment Center, August 12, 2011, by Douglas E. Lee.

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The Los Angeles Times with a number of other newspapers has sued the California Legislature to secure the office budgets and spending records of lawmakers and legislative committees. The Assembly Rules Committee rejected requests for the records last month saying they were exempt under California’s Public Records Act.

The press wants to find out how party leadership allocates taxpayer resources to legislators. -db

From the Los Angeles Times, August 6, 2011, by Michael J. Mishak.

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For its ambitious use of freedom of information laws to generate high impact news stories, the Associated Press has won the 2011 Eugene S. Pulliam First Amendment Award.

In a press release, the AP said it filed more than 1,000 public records requests in 2010 and 60 legal appeals of rejections. In 2009, the AP filed more than 1,500  requests and made 40 appeals.

The award, which carries a $10,000 prize, is sponsored by the Sigma Delta Chi Foundation and will be presented to the AP Sept. 27 at the Excellence in Journalism 2011 conference in New Orleans.

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The practice of withholding the names of police officers who use deadly force is coming under scrutiny from the American Civil Liberties Union, which says it might go to court to enforce the state’s public records act.

On Monday a San Francisco officer shot and killed a 19-year-old man who allegedly fired at police in the city’s Bayview district. On July 3 a BART officer shot a 45-year-old man who allegedly threatened officers with a knife at the Civic Center station.

San Francisco police said they are withholding its officer’s name under department policy. BART said it is restrained by a state Supreme Court decision making police disciplinary actions confidential.

The San Francisco Chronicle reports that the ACLU is considering legal action under the California Public Records Act. An ACLU attorney told the Chronicle that withholding the names denies the public’s right to ”evaluate whether certain officers are engaged in the repeated, inappropriate use of force.”

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A study conducted by The Hill of government responses to the Freedom of Information Act requests revealed no uniform pattern of response. The Hill filed FOIA request for over 70 federal agency FOIA logs and experienced wide variations in compliance.

Some agencies sent logs with names but no affiliations. A few agencies complied in days, most in months. The Hill listed the best and worst agencies for FOIA response. -db

From an analysis and commentary in The Hill, June 3, 2011, by Cristina Marcos.

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A California appeals court ruled that a public agency does not have to provide public access to  a geographic information system or GIS database under the state’s  Public Records Act. The court denied the Sierra Club’s bid to make public the Orange County Landbase, a parcel map showing over 640,000 parcels with street addresses and names of owners. The county wanted $375,000 for the entire Landbase system.

In their opinion, the court wrote that the county was justified in charging the fee under state law, ” A computer mapping database is not excluded ‘merely’ because it is stored on a computer, but because its development is time-consuming and costly and the Legislature has made a policy decision that local governments should be allowed to recoup some of their development costs.” -db

From Metropolitan News Enterprise, June 1, 2011, by Kenneth Ofgang.

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A California appeals court ruled May 11 in favor of FAC and the Sacramento Bee in a case involving public access to information about government pensions. The third district Court of Appeal ruled that the California Public Records Act requires county governments–in this instance, Sacramento–to disclose, by employee name, pension amounts paid to retired county employees.

Both the Sacramento Bee and FAC sued the county after being denied the pension information.  San Francisco attorney Karl Olson, a member of FAC’s Board, represented both FAC and the Bee.

Although it has been clear for some time that retiree-specific pension information is available for government retirees receiving pensions through the CalPERS system, county governments–and their unions–have argued that county employee retirement systems have a different status, and must provide more confidentiality to retirees (based on a 1937 law, Gov. Code sec. 31450 et seq.). The new court decision exhaustively considers, and rejects, this argument.

Pending lawsuits against the San Diego and San Francisco county pension plans involve the same legal issues. Superior Court decisions mandating disclosure in both those cases are currently on appeal. The question of access to county government pension payments ultimately may have to be decided by the California Supreme Court.–PS

The text of the Court of Appeal decision is available here.

This is the Sacraamento Bee’s news story on the court victory:

Sacramento County pension system loses privacy ruling

Published Thursday, May. 12, 2011

An appeals court ruled Wednesday that Sacramento County’s retirement system must turn over pension data requested by The Bee.

Amid public outcry about government pensions, The Bee and the First Amendment Coalition went to court to force the Sacramento County Employees’ Retirement System, or SCERS, to reveal the pension benefits of retirees.

When Superior Court Judge Allen H. Sumner ruled against SCERS’ bid to keep the information private, the pension system petitioned the 3rd District Court of Appeal to overturn the lower court’s decision.

But a three-justice panel of the appellate court said Wednesday in a 49-page opinion that SCERS “must disclose names and corresponding pension benefit amounts of its members. This does not include the members’ home or email addresses, telephone numbers or Social Security numbers.”

Peter Scheer, executive director at the First Amendment Coalition, called the ruling “a very strong decision.”

“The court took seriously the county’s argument,” he said. “But also after an exhaustive analysis, rejected it in an unconditional, unqualified and very clear way.”

The length of the court’s decision suggests justices were anticipating a review by the California Supreme Court, he said.

In 2007, the California Supreme Court ruled in favor of disclosure of public employee salaries, suggesting the higher court would also rule similarly on pensions, Scheer said.

It’s not clear whether the county system will appeal Wednesday’s ruling.

Richard Stensrud, chief executive officer of the retirement association, said Wednesday afternoon that he had not had a chance to study the opinion or discuss it with counsel. He said he could not respond to questions until the association’s board discusses the matter next week.

Karl Olson, an attorney representing The Bee, said this is the first appeals court decision on the issue.

Previously, trial courts in Sacramento and six other counties have ruled in favor of releasing information about public retirement plans. San Diego and Sonoma counties also are appealing two of those decisions.

The dispute was over the release of the names of county pensioners. The retirement system argued that releasing the names violated the 1937 law that created pension systems in Sacramento and other counties.

The Bee and the First Amendment Coalition contended it’s difficult if not impossible without having names to determine cases of pension spiking or favorable treatment – such as nepotism – that helped boost retiree payouts.

“It’s part of our mission to ensure there’s public scrutiny of government spending,” said Joyce Terhaar, executive editor of The Bee. “We’ve been reporting for several years that local governments are facing higher pension costs even as they’re cutting public services. In all that reporting, the Sacramento County retirement system was the only system to refuse us key information. We believe this clearly should be available to the public and are glad the court agreed.”

The opinion says The Bee submitted declarations from journalists describing increased public interest in pensions – including such issues as cashed-out vacation time, overtime pay in the final year of employment, either of which could result in pension spiking.

In addition, issues of double and triple dipping were raised. The lower court had overruled SCERS’ objections to these declarations.

The appellate court pointed out that the California Supreme Court has held that “the public has a general right to know the names and salaries of public officials and employees under the Public Record Act.”

Sacramento County supervisors in July had urged SCERS to not appeal its case to the appellate court, voting unanimously for the retirement system to make the pension information public.

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© Copyright The Sacramento Bee.

A California appeals court has ordered Sacramento County’s retirement system to release pension data to the Sacramento Bee. The Bee and the First Amendment Coalition had brought a lawsuit to reveal data about the pension benefits ncluding the names and benefits of individual members.

Said Joyce Terhaar of The Bee, “It’s part of our mission to ensure there’s public scrutiny of government spending. We’ve been reporting for several years that local governments are facing higher pension costs even as they’re cutting public services. In all that reporting, the Sacramento County retirement system was the only system to refuse us key information. We believe this clearly should be available to the public and are glad the court agreed.” -db

From the Sacramento Bee, May 12, 2011, by Brad Branan.

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The California Legislative Analyst’s Office is recommending phasing out court reporters in favor of electronic transcription. The Office thinks it will save the state $113 million a year but studies have raised doubts that any savings would occur.

Some open government advocates are also challenging the status quo by questioning the benefits of allowing court reporters intellectual property rights to court transcripts ergo the right to collect fees for copies thereby limiting access. -db

From a commentary in the Sacramento Bee, April 25, 2011, by Andy Furillo.

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In a guest commentary in The Salt Lake Tribune, Brigham Young professor Joel Campbell says that a proposed new public record request law in Utah would hurt public access to records. “[The law]…would not only pay fees to cover the ‘actual cost’ of providing the records, but it also added new charges for overhead and administration. That would have undone Utah GRAMA’s current and narrowly drawn ‘actual cost’ provision, which is among the best in the United States.”

The proposed law would also allow public officials to decide what is “readily accessible”, creating a huge loophole that could be used to decimate chances of retrieving records. -db

From a commentary in The Salt Lake Tribune, April 23, 2011, by Joel Campbell.

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A conservative political group has taken a cue from WikiLeaks and is soliciting supporters to post Freedom of Information Act documents online – as long as they hold the Obama administration up to critical scrutiny.

Steven J. Law, president of Crossroads GPS, told the New York Times he hoped the “crowd-sourcing” strategy would reveal the administration’s poor record of compliance with FOIA requests, among other things.

But unlike WikiLeaks, he said, Wikicountability would avoid publishing “classified, legally privileged or subject to the established statutory exceptions under FOIA.”

Tom Blanton, director of the National Security Archive at George Washington University, said he thought the project might be more intent on attracting donors than fostering transparency, but he acknowledged that a “constant push” from all directions, partisan or otherwise, is necessary to improve government’s willingness to disclose.

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The Sunlight Foundation is fighting moves to reduce the budget for federal transparency programs to $2 million from $34 million.

The cutback, contained in the Full Year Continuing Appropriations Act, has passed in the House of Representatives and awaits action in the U.S. Senate.

Among other things, the funding underwrites Web sites that allow the public to examine and track federal spending. Examples are USASpending.gov and Data.gov.

The foundation argues that the open government efforts increase public participation, save money and increase accountability.

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More than 90 foundations and private enterprises operate on California State University campuses, but it’s unclear how much of the $1.2 billion under their control should be subject to public scrutiny, an internal audit concludes.

The audit panel, consisting of four campus presidents, five finance officers, a vice president and a student, said that accounting procedures are so unclear that public and private money is commingled. What’s more, the law should be changed to bring portions of the operations under the California Public Records Act.

The lack of transparency made headlines last year when the CSU Stanislaus Foundation refused to disclose how much it was paying Sarah Palin for a speaking engagement. A judge ruled the information must be made public.

CSU’s internal audit did not satisfy critics, including state Sen. Leland Yee, a San Francisco Democrat who argues that proposed remedies do not go far enough.

Read the full story here and the report here (attachment A).

In a review of court cases involving the federal student privacy law or FERPA, the Student Press Law Center found that FERPA does not always sanction withholding student records from the media. Recent court decisions show that under FERPA states may have considerable leeway to set their own conditions for release of information.

For instance, in a recent federal district court case regarding the release of records concerning a University of  Illinois admissions scandal, the judge ruled that while FERPA sets conditions on federal funding, it did not specifically bar universities from releasing education records. “FERPA does not impose any requirement on state officials,” the judge wrote. “The state has the option to choose whether or not to accept FERPA’s conditions.”

From the Student Press Law Center, March 18, 2011, by Brian Schraum and Kyle McDonald.

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In a departure from a ruling of another circuit, the 11th Circuit U.S. Court of Appeals ruled that a mug shot was exempt from the Freedom of Information Act. The court said to release the mug shots would violate the person’s privacy rights.

Writing for The Reporters Committee for Freedom of the Press, Christine Beckett says, “The issue of access to mug shots made news last month when requests were made to see the mug shots of alleged shooter Jared Lee Loughner. Loughner has been charged with killing six and injuring 13 others in the January Arizona shooting that claimed the life of a federal judge and severely injured U.S. Rep. Gabrielle Giffords, D-Ariz.” Loughner ‘s mug shots were ultimately released to the media. -db

From The Reporters Committee for Freedom of the Press, March 14, 2011, by Christine Beckett.

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In recognition of Sunshine Week, the Sacramento Bee’s Marjie Lundstrom has identified seven Californians who doggedly fight for open government.

Heroes or kooks, she says, they share a common quality: They don’t take no for an answer in their persistent efforts to pry open government for all to see.

Their drive for accountability has prompted new law and landed some of them in legal trouble. Never deterred, they keep pressing, in several cases fighting for local Sunshine ordinances to reduce the roadblocks.

Sunshine Week, a national initiative to promote openness in government, runs from March 13-19 this year. It is headed by the American Society of News Editors, with major funding from the John S. and James L. Knight Foundation.

The Bee’s story is here. Details on Sunshine Week are here.

Transparency isn’t all about holding government accountable. As more and more information collected by government goes online, consumers are reaping a different benefit.

Writing in the New York Times, Richard H. Thaler, a economics and behavioral science professor at the University of Chicago, describes the payoff: potentially life-saving access to product recalls, airline pricing, job-hunting information, real-time tracking of bus and train arrivals and more.

Data, the Times observes, is not dull.

Thaler’s discussion of the trend is here. A list of Web sites and smartphone apps that synthesize the raw government data in practical ways is here.

A bill that sailed through the Utah legislature in 72 hours and would have restricted access to government documents has been put on hold at the request of the state’s governor.

According to the Salt Lake Tribune the bill would “prohibit the disclosure of text messages and instant messages, allow government agencies to charge fees that can include administrative and overhead costs and require requesters wanting records protected by the government to show with a preponderance of evidence the records should be released.”

In a statement, Gov. Gary Herbert said he was committed to “the principles of open and transparent government.”

Senate President Michael Waddoups said the delay would provide a 90-day window for legislators, the governor and the press to discuss modifications to the bill.

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A reporter for the Bend Bulletin newspaper in central Oregon has been subpoenaed to appear before a grand jury after county employees responded to her public records request, failing in some instances to redact personal information such as telephone and drivers license numbers.

The Deschutes County district attorney also is investigating county employees, saying that he wants to know whether sensitive information was released intentionally.

The Bulletin’s request for employee records was prompted after the district attorney, who took office in January, fired five prosecutors and hired nine new employees.

Bulletin editor John Costa said the paper would defend itself in court.

See stories here and here.

The city of Berkeley has adopted an ordinance that expands access to documents, expands live streaming of meetings and bars confidential legal settlements. But, according to the local Web site Berkeleyside, it also has potential to weaken support for a more far-reaching sunshine ordinance schedule for a public vote in November 2012.

The city ordinance, adopted Tuesday, would create an advisory commission that would seek voluntary agreements over open government disputes. By contrast, the much tougher city ballot measure would create a commission with power to sue city officials who violate the law.

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The Government Accountability Office (GOA) found that the National Archives and Records Administration’s (NARA) initiative to increase transparency in the federal government by establishing a searchable, electronic database is facing delays and cost overruns. The program is expected to be only 65 percent complete  by September. The cost could be $193 million to $433 million higher than planned.

The GAO blamed poor management for the failings. Its report said, “NARA has not been positioned to identify potential cost and schedule problems early and thus has not been able to take timely actions to correct problems and avoid program schedule delays and cost increases.” -db

From NextGov, February 7, 2011, by Sarah Mimms.

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The New York Times Magazine
Commentary
January 26, 2011
By Bill Keller

The New York Times’ editor-in-chief writes that while he opposes the U.S. government’s initiatives to prosecute WikiLeak’s founder Julian Assange and pass new laws to punish those disseminating classified information, WikiLeaks was a news source and not a partner or collaborator.

The Wall Street Journal has filed to overturn a longstanding injunction that blocks access to records of Medicare fraud and the doctors implicated in the fraud. -db

Dow Jones
Press Release
January 25, 2011

NEW YORK – The publisher of The Wall Street Journal filed court papers today to overturn a 31-year-old court injunction that blocks public access to records containing evidence of Medicare fraud and the doctors behind it.

The filing by Dow Jones & Company, in the U.S. District Court for the Middle District of Florida, seeks to overturn an injunction obtained by the American Medical Association in 1979. The injunction prevents the public from knowing how much taxpayer money individual doctors receive from the Medicare program. As a result, The Wall Street Journal and other news organizations are barred from fully investigating and exposing abuses in the $500 billion system.

The legal action follows a series of articles in The Wall Street Journal last year, “Secrets of the System,” that relied on a sampling of the government’s closely guarded Medicare databases.  The series highlighted suspicious billing, potential abuses of the system and the government’s role in policing Medicare payments.

However, the 1979 injunction constrained the Journal’s investigation and what it could tell its readers because it limited the Journal to only a subset of the data.  In addition, the government would only release the limited subset of data if the Journal agreed not to disclose the identities of individual doctors in the databases.

“It is time to overturn an injunction that, for decades, has allowed some doctors to defraud Medicare free from public scrutiny,” said Mark H. Jackson, general counsel for Dow Jones.  “The public has a significant interest in learning whether doctors are fleecing the system, the extent of the problem, and whether the government has been effective in stopping such abuse.”

This effort will not compromise patient confidentiality, Jackson added.

“The Medicare system is funded by taxpayers and yet taxpayers are blocked from seeing how their money is spent,” said Robert Thomson, editor in chief of The Wall Street Journal.  “It is in the interests of law-abiding practitioners that those who are gaming the system are exposed.  Unless funds are used efficiently and intelligently, the health of the nation, physically and fiscally, will be undermined.”

The Journal series revealed how Medicare reimbursement policies and doctors’ relationships with private companies in the industry could be giving doctors an incentive to bill for unnecessary and high-cost procedures.  It also reported on several doctors with questionable billing practices, including one doctor who took home more than $2 million from Medicare in 2008 by billing for an improbable number of obscure medical tests and another who received more than $8.1 million from Medicare over three years while treating a suspiciously high percentage of patients with an extremely rare condition.  Because of the injunction, neither doctor could be named in the articles.

The law firm of Davis Wright Tremaine LLP is representing Dow Jones in this matter.

EFF is asking a California Court of Appeal to uphold the public’s right to electronic files created by local governments in the case Sierra Club v. Superior Court. -db

Electronic Frontier Foundation
Commentary
By Mark Rumold

Last week, EFF joined a coalition of public interest and media groups in filing an amicus brief (pdf) urging a California Court of Appeal to uphold the public’s right to access electronic files created and stored by local governments. The case, Sierra Club v. Superior Court, focuses on the public’s right to access geographic information system (GIS) basemaps created by local governments in California.

GIS basemaps integrate basic property information such as parcel boundaries, addresses, and other property data. Additional information can then be “layered” on top of the basemaps, enabling users to understand, interpret, and visualize data in ways that simply aren’t possible through the rows and columns of a spreadsheet. Individuals and organizations then use these maps for a variety of innovative purposes — for example, scientists use them, journalists and the media use them, and public interest organizations use them(pdf).

The Sierra Club filed a request under the California Public Records Act (CPRA) for Orange County’s property information — information the County used and maintained in a GIS format. The Sierra Club requested the GIS basemap as part of its mission to protect open spaces in California: using the basemaps, the Sierra Club makes detailed maps of proposed real estate developments and suggests possible alternatives to those developments. The County, however, refused to turn over the information in the requested GIS format, despite its obligation under California law to provide public records in “any electronic format in which it holds the information.” Instead, the County offered to provide the property information in a pdf, even though the County already had the information available in GIS format.

Orange County claimed that information stored in GIS format is exempt from disclosure under the “software exception” of the CPRA. While the CPRA does exempt government entities from disclosing “computer software developed by a state or local agency,” public information processed or formatted for that software is not exempt. Coupled with the County’s obligation to provide public records in the format requested, it seems clear that Orange County is illegally withholding its GIS basemap from the Sierra Club.

Unfortunately, the trial court sided with Orange County and inexplicably held that the GIS basemap constituted software that was exempt from disclosure. The Sierra Club appealed the decision, and the appellate court ordered full briefing. Our amicus brief argued that simply because information is stored in a specific electronic file format, that format does not change the public nature of the information itself.

The amicus brief was spearheaded by the First Amendment Coalition (FAC), an organization that litigated, and won, a similar case in 2009. Along with FAC, EFF joined the brief with the Associated Press, the Reporters Committee for Freedom of the Press, the Citizen Media Law Project, and Wired, among numerous other public interest and media organizations dedicated to open government and freedom of information.

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