California Cops Can No Longer Pass the Cost of Digital Redaction onto Public Records Requesters
At a dark time when the possibility of police accountability seems especially bleak, there is a new glimmer of light courtesy of the California Supreme Court. Under a new ruling, government agencies cannot pass the cost of redacting police body-camera footage and other digital public records onto the members of the public who requested them under the California Public Records Act (CPRA).
The case, National Lawyers Guild vs. Hayward was brought by civil rights groups against the City of Hayward after they filed requests for police body-camera footage related to protests on UC Berkeley’s campus following the deaths of Eric Garner and Michael Brown. Hayward Police agreed to release the footage, but not before assessing nearly $3,000 for redacting the footage and editing that they claimed NLG needed to pay before they’d release the video.
The California Supreme Court sided with NLG, as well as the long list of transparency advocates and news organizations that filed briefs in the case. The court ruled that:
“Just as agencies cannot recover the costs of searching through a filing cabinet for paper records, they cannot recover comparable costs for electronic records. Nor, for similar reasons, does ‘extraction’ cover the cost of redacting exempt data from otherwise producible electronic records.”
The court further acknowledged that such charges “could well prove prohibitively expensive for some requesters, barring them from accessing records altogether.”
This is an unqualified victory for government transparency. So what does this mean in practical terms for public records requesters? As people march against police violence across the Golden State, many members of the press and non-profits will likely use the CPRA to obtain evidence of police breaking the law or otherwise violating people’s civil rights.
These videos can prove to be invaluable records of police activity and misconduct, though they can also capture individuals suffering medical emergencies, violence, and other moments of distress. The CPRA attempts to balance these and other interests by allowing public agencies to redact personally identifying details and other information while still requiring that the videos be made public.
So when making a request for body-camera footage, the first thing requesters should know is that sometimes the individuals handling public records requests are not keeping up with legal decisions, particularly one issued last week. To preempt these misinterpretations of the law, requesters could consider including a line in their letters that says something like:
“Pursuant to NLG vs. Hayward, S252445 (May 28, 2020), government agencies may not charge requesters for the cost of redacting or editing body-worn camera footage.”
More broadly, the decision’s reasoning doesn’t just apply to body-camera footage, but all digital records. This is because the court’s ruling recognizes that because the CPRA already prohibits agencies from charging requesters for redacting non-digital records, that same prohibition applies to digital records.
So, in requests for electronic information, such as emails or datasets, you could include the line:
“Pursuant to NLG vs. Hayward, S252445 (May 28, 2020), government agencies may not charge requesters for the cost of redacting digital records.”
Additionally, people filing CPRA requests for digital records should know that the law does permit agencies to charge for the costs of duplicating records, though in the case of digital records that cost should be no more than the price of media the copy is written to – in NLG’s case, it was $1 for a USB memory stick.
The CPRA also permits agencies, in certain narrow circumstances, to charge for its staff’s time spent programming or extracting data to respond to a public records request. The good news is that the California Supreme Court’s decision last week significantly narrowed the circumstances under which an agency can claim these costs and pass them along to requesters.
According to the court, data “extraction” under the CPRA “refers to a particular technical process—a process of retrieving data from government data stores—when this process is” required to produce a record that can be released. The court said the provision would permit charges when, for example, a request for demographic data of state employees requires an agency to pull that data from a larger human resources database. But “extraction” does not cover the time spent searching for responsive records, such as when an official has to search through email correspondence or a physical file cabinet.
Requesters should thus be prepared to push back on any agency claims that seek to assess charges for merely searching for responsive records. And requesters should also be on the lookout for exorbitant charges associated with data “extraction” even when the CPRA permits it, as such techniques in practice can amount to little more than a database query or formula. source
California Supreme Court: Agencies May No Longer Charge For Costs Of Redacting Body Cam Footage or Other Electronic Public Records
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. source
National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward, et al., Case no. S252445 (May 28, 2020).