In a unanimous decision issued May 28, 2020, the California Supreme Court ruled that the California Public Records Act (“CPRA”) does not permit public agencies to recover from the requesting party the cost of redacting information from electronic records in response to a request for electronically stored public records. This decision reversed a prior decision by the California Court of Appeal, which held that the cost of such redactions could be charged to the requesting party.
In this case, the San Francisco Chapter of the National Lawyers Guild (“NLG”) requested from the City of Hayward (“City”) electronic records related to a demonstration for which the City’s Police Department provided security. The NLG initially requested 11 categories of records, including electronic and paper records. The NLG made a second request for video recordings of police body camera footage from 24 named officers and additional unnamed officers.
The City complied with the NLG’s records requests, producing more than six hours of body camera footage. City staff spent approximately 170 hours reviewing and redacting portions of the video that contained sensitive information exempt from disclosure under the CPRA. The task required the City to research and acquire specialized editing software to edit and redact the video recordings. The City sought reimbursement for $2,939.58 in costs incurred in copying and redacting the videos, including City staff time spent reviewing, editing, and redacting exempt portions of the requested video recordings and costs incurred in copying the videos. In response to the NLG’s second request for videos, the City indicated that it would charge NLG $308.89 to reimburse the City for its production costs.
The NLG filed a legal action seeking reimbursement for its payment of $2,939.58, and access to the second set of its requested videos for no more than the City’s direct production costs. The parties agreed that the video recordings that the NLG requested were subject to disclosure but disputed which party should bear the costs incurred in connection with the City’s production of these records.
The trial court granted the NLG’s request. The City appealed to the Court of Appeal, which reversed the trial court’s decision. Interpreting Section 6253.9 of the CPRA, which requires a requester to bear the cost of “programming and computer services necessary to produce a copy of the record when…[t]he ‘request would require data compilation, extraction, or programming,’” the Court of Appeal held that the City was entitled to recover redaction costs as a form as an “extraction” of data necessary to produce the record.
The Supreme Court granted review, and on May 28, 2020 it unanimously reversed the Court of Appeal’s decision. The Court noted that in the computing field, the term “data extraction” is generally used refer to the process of retrieving specific data needed for a particular use from a larger database. The Court also looked to the legislative intent behind Section 6253.9, and concluded that the Legislature likely did not intend to create a distinction between redaction costs for electronic and non-electronic records and allow agencies to charge for charge for time spent redacting an electronic version of a document when it cannot charge for time spent redacting a hard copy of the very same document.
The Court did not provide a clear rule for determining what is or is not reimbursable data “extraction.” But the Court did conclude that the legislative history indicated the term was meant to cover retrieving disclosable information from a government database that cannot be disclosed as a whole, such as “pulling demographic data for all state agency employees from a human resources database and producing the relevant data in a spreadsheet.”
The Court also recognized that if agencies cannot seek reimbursement for redaction costs, that places an additional burden on public agencies, and the Court noted various alternative solutions available under the CPRA. For example, the Court noted that agencies are only required to disclose nonexempt portions of records if they are “reasonably segregable” from exempt portions. (Gov. Code § 6253(a).) The Court also noted that agencies can withhold records if “the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record,” which may encompass requests that place undue burdens on an agency. (Gov. Code § 6255(a); American Civil Liberties Union Foundation v. Deukmejian (1982) 32 Cal.3d 440, 453.) Finally, the Court noted that the CPRA allows agencies to suggest ways requesters can reduce practical barriers to producing the records, such as asking the requesting party to narrow its request.
In light of the Court’s decision, it is clear that agencies can no longer charge CPRA requestors for the costs associated with redacting video, audio and similar electronic records. However, there are other strategies that can be implored to reduce the costs associated with complying with CPRA requests, and agencies and their legal counsel should become familiar with them. Liebert Cassidy Whitmore has significant experience in this area and can assist agencies as needed.
National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward, et al., Case no. S252445 (May 28, 2020).