California Surveyors Forums

California Supreme Court issued the opinion yesterday.

"The issue in this case is whether the OC Landbase is subject to disclosure in a GIS file format at the actual cost of duplication under the California Public Records Act or whether, as the County contends, it is covered by the statute‘s exclusion of ―[c]omputer software‖ (Gov. Code, § 6254.9, subd. (a)) — a term that ―includes computer mapping systems‖ (id., § 6254.9, subd. (b)) — from the definition of a public record. We hold that although GIS mapping software falls within the ambit of this statutory exclusion, a GIS-formatted database like the OC Landbase does not. Accordingly, such databases are public records that, unless otherwise exempt, must be produced upon request at the actual cost of duplication."

An actual logical opinion from a CA Court? Amazing!!!

Thank you, California Supreme Court. Public agencies need to accept the fact that investments in their business processes made at taxpayer expense are not profit centers.

The private sector seems to keep hammering the point home that public records are just that, “publicâ€￾. It is also evident that a lot of public agencies keep resisting the idea that the information they collect, gather, store or require from the public at large is public information by definition in the Public Records Act.

In Marin County the county surveyor’s office has taken this resistance to a higher level. His office is negotiating with a group of local surveyors to circumvent the PRA requirements of making public records accessible to the public. The Marin CLSA chapter in cooperation with the CS office is working to develop a procedure to deny public access to unrecorded documents and maps referenced on ROS maps. The idea is to remove the requirement that copies of unrecorded documents and maps listed as references be submitted with the ROS map review package. The logic being that if the maps weren’t submitted the CS office doesn’t have to collect, store and make them available to the public if requested. They want to put a note on the filed ROS map to the effect that “the unrecorded referenced documents were not submitted to the County Surveyor for review. Copies of the documents may be obtained from the surveyor who prepared the map.â€￾

Although I haven’t seen the note appear on any recently filed maps, apparently the policy has been instituted by the CS office. Two recent PRA requests for unrecorded documents shown as references have been denied with the reason given that the information requested does not reside in the county’s records.

Maybe with this latest Supreme Court decision public agencies will get the message they are “public agenciesâ€￾ and their sole purpose is to serve and protect the public's interest.

Maybe time for a ruling that ANY document referenced on ANY public recorded document be made available to the public.
If they want their private records let them keep them private and unusable.
If our board doesn't step in on this why have a board.

Land Butcher

"Maybe time for a ruling that ANY document referenced on ANY public recorded document be made available to the public."

That ruling has already been made by the passage of the Public Records Act in 1968 (45 years agao). How do we get the Gov't. to follow the law? Apparently bringing up that fact to the gov't agencies hasn't had any effect. Moreover our own State CLSA Leg committee refused to take up the matter by not acting on simple, straight forward wording change to the PLS Act to reference the Public Records Act. The committe choose instead to address the question of compensation to the private record holders as paramount over the rights of the public to public information.

More of the Misinformation Effect . . .

MFORD wrote:

.... Moreover our own State CLSA Leg committee refused to take up the matter by not acting on simple, straight forward wording change to the PLS Act to reference the Public Records Act. The committe choose instead to address the question of compensation to the private record holders as paramount over the rights of the public to public information.

I do not agree with MFORD’s post. Since he has not attended all of the Legislative Committee meetings, he cannot possibly know all that was discussed. For the record, the CLSA Legislative Committee has looked at several versions of proposed language relative to the issue over the past few years and while the question of compensation was discussed during one of the numerous meetings, it was not the preventing factor from moving forward with Legislation. The CLSA Legislative Committee met on July 12, 2013 and a report will be provided at the CLSA Board of Directors meeting on July 27, 2013.

Michael Butcher
2013 CLSA Legislative Committee Chairman

Wood Cutter
Section 8764 in conjunction with the PRA Section 6250-6270 defines those records as public information. Without copies of the references the CS can't do his job as defined in PLS Act. Every county surveyors offfice in CA requires copies of the referenced documents be submitted with the ROS review package. That requirement puts those documents into the public domain. The attached AG opion supports my popsition, although it referneces information susbmitted to a Building Dep't. It would be hard to imagine the PRA covers source documents for a building permit and not cover source documents for a filed map.

If reporting the facts of an open CLSA meeting is resorting to verbal attacks on others then I'm guilty.


Mike Butcher
I've expressed my respect and admiration to you and other members of the Leg Com for all the time and effort expended deailng with the subject matter. However, in this particular instance the committee missed the mark. All I have to judge the actions of the Leg Com is the reports. The overridding reason in the adhoc sub-committe report for not forwarding the proposed language was the question of compemsation to the private record holders for their files. The secondary reason was the posibility of "copy right" infringement if those records were made public. If the PLS Act had been ammended when the PRA was passed into law we we wouldn't be having all the confunsion we have today about "unfiled records" as references. (re: the attached AG Opinion)

Phil
Please elighten me on how I'm passing misinformation. You were at the CLSA meeting I mentioned and as I recall you were in favor of the CS proposal. If I'm incorrect and misinforming I appologize, otherwise explain how I'm misinforming.

If the PLS Act had been ammended when the PRA was passed into law we we wouldn't be having all the confunsion we have today about "unfiled records" as references.

IF the land surveyors who performed those surveys and prepared those records had complied with the law in the first place, you wouldn't be discussing PRA.

confunsion; the state of having way too much fun while being totally clueless

DMI
I deserve that criticism. That’s what I get for not running my comments through a word processing program. I was in a jam for time. Although I do like your definition. I’ll have to remember that for the future.

I think the Marin situation is interesting. Every position is absolutely correct.

But when a legal description, or a record map, references a document that is not in the public record, and it is my survey? And as a matter of course it is the LS responsibility to perform the survey in accordance with the LS act?

All I can say is explain your fee to my client's attorney.

How is holding private records hostage for a fee different than the right of entry statute? Both are interfering with the land surveyors work, unless the LS community at large has a more refined concept than me.

Woodcutter
Thoughtful responses area always welcomed and I appreciate your points of view and interpretations of the PRA and the AG opinion. I respectfully disagree with your conclusions. I don’t see where the PRA or the AG opinion sets a time limit on public records availability after being submitted to a public agency.

The AG conclusions are unambiguous, “We conclude that the documents must be made available for inspection and copying from the time they first come into the custody of the building department.â€￾

Further down in the AG opinion it talks about a 5 year limit that particular building department held the records. I suppose one could interpret that as a time limit, although I haven’t read in the PRA where time limits are allowed. It may or may not be unreasonable to expect the CS offices to keep the records in perpetuity. If that’s the case then the CS offices need to go through the legislative process to get the PRA revised. In the interim we are all obligated to abide by the current statutes.

Nor do I agree that the source documents of soils reports, grading plans, etc. differ from source documents in support of a surveyor’s opinion of a property boundary line. On the contrary the surveyor’s source documents may affect several adjoining parcels in addition to the one he/she surveyed. The engineer’s documents affect only that parcel being reviewed for compliance with the building codes.

The Leg Com report I referred to was issued at the November meeting last year and addressed the first proposed language change to the PLS Act. The most recent language Mike Butcher is referring to was submitted to the Leg Com at the April meeting this year. I was unaware that Leg Com would be reporting on that because it wasn’t in the published agenda or in the published Leg Com report for the July meeting. My apologies if I assumed the proposed language wasn’t on the agenda as a discussion item.

CEAC has guidelines that, I’m told by several CS’s, that they use for their map submittal requirements. “Copies of all referencesâ€￾ is on that list. If some CS offices aren’t requiring the references they may want to review the CEAC submittal requirements. I’m not clear on how they could perform their duties under the PLA Act w/o copies of the references cited on the map.

please do not be upset, everyone makes typos, I was not having fun at your expense it did look like a word that was in search of a definition... at least to me

The purpose of the PRA is to allow the public to see the documents behind decisions made by public officials. The County Surveyor is a public official. Signing an R/S may not be discretionary so conceivably the CS could request copies of reference documents to which the LS could say no and file the map removing the CS's discretion in the matter except a CS note to the effect the LS refuses to providing copies. Of course the CS may be justified in filing a complaint against the LS.

The Marin County CS as regulator cooperating with the local private LS's in circumventing the PRA seems slightly dishonest to me. I know there's the problem with costs but these records should've been filed way back when like a lot of other Counties which are much better in this regard such as Santa Barbara, Kern, L.A., and Mendocino which are just a few I can think of, oh and SLO too.

I'm just thinking out loud.

Dave Karoly, PLS wrote: The Marin County CS as regulator cooperating with the local private LS's in circumventing the PRA seems slightly dishonest to me.

I agree. That does not sit well with me either.

On the other hand those private records holders expended dearly - time, resources, money, storage, cateloging, etc. to preserve the damn things in the first place. Probably more dearly than the rest care to empathize with.

Burn em. That's right . Burn them before they get legislated into the hands of the non-deserving.

Think of all the records that got destroyed during our Civil War. The world is still turning.

Clark-this may sound crazy or blasphemous but maybe that's the answer, burn them. How can the public be held to non-public records in Court? The GLO destroyed the field tablets to avoid multiple copies and conflicting information. Although the Santa Clara CS has some original tablets and they don't look anything like the official field notes which are really a narrative type of map cooked up in the office later.

I've thought about this issue a little. Mostly I think in terms of hypotheticals. Suppose a property owner wants a survey in Marin County. They contract with a licensed surveyor from another County. That surveyor uses the deed and public information to set pipes on the property corners and does a job which would be considered standard practice everywhere else. Twenty years go by and a new neighbors moves in next door. The new neighbor hires a local surveyor who has the unrecorded original survey of the neighborhood from which the deeds were written. Lo and behold this reveals hubs five feet from where the 20 year old pipes which have been used in good faith all of these years. No law says you have to hire a local surveyor who happens to have some non-public records.

The Marin County system ultimately causes trouble which is the reason for the R/S statute in the first place. The R/S statute has been around almost from the beginning. I don't remember the year of the first version but I did research it one time, at least as far back as 1907. It may have been in the 1892 statute too.

DMI,

"please do not be upset, everyone makes typos, I was not having fun at your expense it did look like a word that was in search of a definition"

I wasn't upset at all. It was amusing and creative to come up with a definition for a non-word (is that a word?) I'm trying to figure out how to pronounce "confunsion"

Clark,
Fear not, interlopers and non surveyors will not have access to those records. At least that's the case for one Marin Co. record holder. According to a note on a recently filed ROS his records are copyright protected and only "professional land surveyors" will be allowed access (others need not apply.) The note doesn't say what would happen if the records were subpoenaed by the courts. I guess the attorney who filed the subpoena would have to be a PLS also.

Dave Karoly, PLS wrote: Suppose a property owner wants a survey in Marin County. They contract with a licensed surveyor from another County. That surveyor uses the deed and public information to set pipes on the property corners and does a job which would be considered standard practice everywhere else. Twenty years go by and a new neighbors moves in next door. The new neighbor hires a local surveyor who has the unrecorded original survey of the neighborhood from which the deeds were written. Lo and behold this reveals hubs five feet from where the 20 year old pipes which have been used in good faith all of these years. No law says you have to hire a local surveyor who happens to have some non-public records.

The Marin County system ultimately causes trouble which is the reason for the R/S statute in the first place. The R/S statute has been around almost from the beginning. I don't remember the year of the first version but I did research it one time, at least as far back as 1907. It may have been in the 1892 statute too.

Marin County guys can chime in if I am incorrect, but what adds to the problems in my mind is some of the 1950s-era surveyors would set tagged monuments in an approximate area of the corners, then on a plat show the offsets to the actual corners. I see this on modern ROS maps where they will show a hub per some notes and then those offsets.

Imagine finding a tagged hub in some hilly, nonrecorded mess of an area to survey with fences that conform to nothing, and then finding out the old hub you found is 1.3x2.2 from the corner you assumed it was purported to be.

Dave Karoly,


Again, you have hit the nail on the head. I reviewed a recent ROS that listed 4 unrecorded maps as justification for disagreeing with a 50 year old subdivision map and 2 ROS maps filed 15-20 years ago. These “secret surveys” cause way more problems than they solve. The surveyors that didn’t file the unrecorded maps are some of those that, back in the day, decided the PLS Act didn’t apply to them. Their maps are regularly used by a minority of Marin Co surveyors to justify disagreeing with filed maps of record.

Bryan,
You have identified the latest issue that has recently emerged. Apparently field notes are paramount to and trump recorded maps for the reason you stated, according to one Marin Co surveyor. 1950 era surveyors would indeed set offsets to actual property corners and not show that information on the occasional map they filed. Basically the original surveyor committed fraud.


IMHO, the filed maps were intended by statute to stand by themselves without benefit of extraneous information required to locate the property depicted on the map. The deed descriptions reference the platted maps without mention of the attendant field notes. I think it would be a hard sell to convince a court that secret field notes not available to the public, in the files of deceased surveyors would prevail over the information shown on the map.

At best the old field notes are extrinsic information which may not be admissible depending on the circumstances.

Suppose a diligent surveyor (not from Marin) found an old tagged hub five feet from the fence line. If copies are obtained which indicate it was set on a five foot offset then that may support the fence location. On the other hand if the notes indicate the hub was set on the property corner but the fence fits the deed or an old filed map better then I would think the fence and deed or filed map would be better evidence of the boundary location.

Obviously there are plenty of situations where old unrecorded notes and maps are very useful. I have used them myself. We have a lot of materials in our office from old projects that were never finished (but monuments set) and I have used them myself. I am working on at least one survey where they removed a couple of old monuments and set new ones (filed R/S early 1960s). Knute Nelson had his reasons for doing that I am sure but probably he shouldn't have. There is no mention of this on the R/S, only in the field notes. I found one location because the hole is still there (it's amazing how long a hole in the dirt will persist). I almost certainly will hold the "new" locations because they are there, obvious (concrete monuments) and have been public records for decades. We of course will share anything in our files.

Mendocino and Humboldt have a lot of old records available at the CS office from deceased and retired Surveyors.

Using non-compliant files to overcome compliant surveys is not a good plan.

He who seeks equity must have clean hands himself.