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

February 5, 2009; as amended February 27, 2009


Trial Court: Santa Clara County Superior Court Superior Court No. CV072630 Trial Judge: The Honorable James P. Kleinberg

The opinion of the court was delivered by: McAdams, J.


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


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

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

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


On June 12, 2006, CFAC submitted a request for a copy of the County's geographic information system (GIS) basemap.*fn1 The request was made under the California Public Records Act (CPRA), Government Code sections 6250 et seq. Two weeks later, the County denied the request, citing statutory exemptions and copyright protection.

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

Proceedings in the Superior Court

On October 11, 2006, CFAC filed a petition for writ of mandate, seeking to compel the County to produce the GIS basemap. Among the exhibits attached to the petition was the County's GIS Basemap Data request form, which details the procedure and the required fees for obtaining that data. Based in part on the fee schedule contained in that form, CFAC asserted that the cost of obtaining county-wide parcel information alone "would be approximately $250,000." As legal support for its petition, CFAC relied on the CPRA, and on the California Constitution, article 1, section 3. The County answered, then CFAC filed its replication to the answer.

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

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

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

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

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

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

Proceedings in This Court

On June 12, 2007, the County initiated this writ proceeding.*fn2 It filed a petition accompanied by a memorandum of points and authorities. At the County's request, we issued a temporary stay. CFAC filed preliminary opposition, to which the County replied.

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

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

Numerous amici curiae applied for leave to file five separate briefs in this court. We granted all five applications.*fn3

The Record

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

In 2008, we received and granted three requests for judicial notice.*fn4 Despite having taken judicial notice of these documents, we need not rely on them in resolving this proceeding. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1; see also, Windham at Carmel Mountain Ranch Assn. v. Superior Court (2003) 109 Cal.App.4th 1162, 1173, fn. 11; Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 30.)


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

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

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

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

The third request for judicial notice was filed by the County in July 2008. It asks this court to judicially notice documents from the United States Copyright Office demonstrating that two California cities have registered copyrights.


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

I. Federal Homeland Security Law

A. Overview

1. The Statute

The federal statute at issue here is the Critical Infrastructure Information Act of 2002 (CII Act). (6 U.S.C. §§ 131-134.) The CII Act is part of the Homeland Security Act of 2002, which established the Department of Homeland Security (DHS). (See id., §§ 101, 111(a).) Within the DHS, Congress established an Office of Intelligence and Analysis and an Office of Infrastructure Protection. (6 U.S.C. § 121(a).) The statutory responsibilities associated with those offices include carrying out "comprehensive assessments of the vulnerabilities of the key resources and critical infrastructure of the United States," and developing "a comprehensive national plan for securing the key resources and critical infrastructure of the United States, including power production, generation, and distribution systems, information technology and telecommunications systems (including satellites), electronic financial and property record storage and transmission systems, emergency preparedness communications systems, and the physical and technological assets that support such systems." (Id., (d)(2), (5).)

At the heart of the CII Act is the protection of critical infrastructure information (CII), statutorily defined as "information not customarily in the public domain and related to the security of critical infrastructure or protected systems.." (6 U.S.C. § 131(3).) "The CII Act authorized DHS to accept information relating to critical infrastructure from the public, owners and operators of critical infrastructure, and State, local, and tribal governmental entities, while limiting public disclosure of that sensitive information under the Freedom of Information Act . and other laws, rules, and processes." (71 Fed. Reg. 52262 (September 1, 2006).)

The CII Act contains a section aimed at protecting voluntarily shared critical infrastructure information. (6 U.S.C. § 133.) Concerning the disclosure of such information, it provides in pertinent part: "Notwithstanding any other provision of law, critical infrastructure information (including the identity of the submitting person or entity) that is voluntarily submitted to [the DHS] for use by that agency regarding the security of critical infrastructure and protected systems . [¶] (A) shall be exempt from disclosure under . the Freedom of Information Act[]" and "(E) shall not, if provided to a State or local government or government agency . [¶] . be made available pursuant to any State or local law requiring disclosure of information or records[.]" (Id., (a)(1)(A), (E)(i); see O'Reilly, 1 Federal Information Disclosure 3d (2000 & Westlaw Dec. 2008 update) § 13:14 [describing this provision as a "much-tinkered clause" that was "hotly contested as the bills were debated"].)

The CII Act directs the Department of Homeland Security to "establish uniform procedures for the receipt, care, and storage by Federal agencies of critical infrastructure information that is voluntarily submitted to the Government." (6 U.S.C. § 133(e)(1).) It further provides that those procedures "shall include mechanisms" for "the protection and maintenance of the confidentiality of such information so as to permit the sharing of such information within the Federal Government and with State and local governments, and the issuance of notices and warnings related to the protection of critical infrastructure and protected systems, in such manner as to protect from public disclosure the identity of the submitting person or entity, or information that is proprietary, business sensitive, relates specifically to the submitting person or entity, and is otherwise not appropriately in the public domain." (Id., (e)(2)(D).)

2. Regulations

The federal regulations implementing the CII Act are found in the Code of Federal Regulations, volume 6, part 29. Those regulations are intended to implement the federal statute "through the establishment of uniform procedures for the receipt, care, and storage of Critical Infrastructure Information (CII) voluntarily submitted to the Department of Homeland Security (DHS)." (6 C.F.R. § 29.1(a) (2007).)

As stated in the regulations: "Consistent with the statutory mission of DHS to prevent terrorist attacks within the United States and reduce the vulnerability of the United States to terrorism, DHS will encourage the voluntary submission of CII by safeguarding and protecting that information from unauthorized disclosure and by ensuring that such information is, as necessary, securely shared with State and local government pursuant to . the CII Act. As required by the CII Act, these rules establish procedures regarding: . [¶] The receipt, validation, handling, storage, proper marking and use of information as PCII[.]" (6 C.F.R. § 29.1(a) (2007).)

PCII (protected critical infrastructure information) is CII that has been validated by DHS. (6 C.F.R. § 29.2(g) (2007).)

Among the regulations is one relied on by the County, which states that PCII "shall be treated as exempt from disclosure under the Freedom of Information Act and any State or local law requiring disclosure of records or information." (6 C.F.R. § 29.8(g) (2007).)

3. Preemption

The County's reliance on federal law rests on its contention that the CII Act and accompanying regulations preempt the CPRA.

As a general principle, federal law preempts state law (1) where Congress has said so explicitly, (2) where Congress has said so implicitly, as when federal regulation occupies the field exclusively, and (3) where federal and state law conflict. (Lorillard Tobacco Co. v. Reilly (2001) 533 U.S. 525, 541.) Unless Congress has demonstrated a clear and manifest purpose to the contrary, the presumption is that federal law does not preempt the states' historic police powers. (Id. at pp. 541-542; Jevne v. Superior Court (2005) 35 Cal.4th 935, 949-950.) Moreover, a federal "agency literally has no power to act, let alone pre-empt the validly enacted legislation of a sovereign State, unless and until Congress confers power upon it." (Lousiana Public Serv. Comm. v. FCC (1986) 476 U.S. 355, 374.)

B. The Parties' Contentions

1. Preemption

The County claims express federal preemption under 6 Code of Federal Regulation, part 29.8(g), which exempts PCII from the operation of federal, state, and local laws requiring the disclosure of public records. As the County points out, the preamble to the final rule promulgated by Department of Homeland Security notes "the preeminence of PCII status under the CII Act and these regulations in relation to any State, territorial, or tribal public disclosure laws or policies." (71 Fed. Reg., supra, at p. 52268.) That same document also states: "This rulemaking, as required by the underlying statute, preempts State, local and tribal laws that might otherwise require disclosure of PCII.." (Id. at p. 52271; see also, O'Reilly, 2 Federal Information Disclosure 3d, supra, § 27.22.)

The County also asserts that Congress has implicitly preempted state law, arguing that "the Federal Regulations set forth a scheme for PCII validation that is so pervasive, it is unreasonable to infer that Congress intended the states to occupy the field." (See Jevne v. Superior Court, supra, 35 Cal.4th at p. 958.)

CFAC disputes the County's preemption claim. In its view, "the CII Act does not preempt" the CPRA, but "merely creates a rule of nondisclosure" that has no application to this case.

2. Statutory Arguments

According to CFAC, the County's position rests on a misreading of the federal act as it relates to CII that has been voluntarily submitted to the federal government, such as the GIS basemap at issue here. (See 6 U.S.C. § 133(a).) In CFAC's view, the provisions in the federal statute limiting disclosure apply only to those entities receiving PCII from DHS, not to those submitting it. Furthermore, CFAC argues, the federal protection for CII has been incorporated into state law as an exemption in the CPRA, but that exemption was waived by the County's sale of the GIS basemap to non-governmental entities. (See Gov. Code, §§ 6254, subd. (ab) [provision exempting CII]; 6254, subd. (k) [provision incorporating federal law exemptions]; 6254.5 [waiver provision].)

The County disputes this view of the CII Act, arguing that it imposes "an artificial distinction" between submitting and receiving entities. The County also dismisses CFAC's waiver argument, calling ...

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