Legal Update Memo No. 35-2020 - Public Entities Cannot Charge for Redacting Records Under the California Public Records Act (K-12) - School & College Legal Services of California

Download pdf: 35-2020 – Public Entities Cannot Charge for Redacted Records Under the CPRA (JH)

The California Supreme Court recently ruled that public entities could not charge California Public Records Act requesters for the entities’ costs of redacting responsive electronic records. (National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward ___ P.3d ___ (2020 WL 276105) (“NLG”)). In doing so, it overturned the Court of Appeal 2018 decision in this case which held that while an agency cannot charge to redact paper records, it could charge a requestor for redaction of electronic records in some circumstances.

Under the California Public Records Act, Government Code Sections 6250 to 6276.48 (“CPRA”), a person who requests a copy of a government record can be charged only the costs of duplicating the record, and not for other ancillary costs, such as the costs of redacting exempt material. Traditionally, in the “hard copy” paper context, this meant agencies could charge a reasonable amount per page that encompasses the “cost of running the copy machine, and conceivably also the expense of the person operating it.”

In 2000, the California Legislature amended the CPRA to address production of electronic records. The Legislature added Section 6253.9 which required an agency to produce electronic information in electronic format if requested, and also allowed an agency to charge for producing a copy of an electronic record, if “the request would require data compilation, extraction, or programming to produce the record.” (Government Code Sec. 6253.9(b).) Per the Supreme Court’s NLG decision, the intent behind this amendment was to allow public agencies to charge requesters only the electronic equivalent of making a hard copy.

In 2015, public interest organization National Lawyers Guild (“Guild”) requested public records from the City of Hayward’s police department related to its assistance of local law enforcement during 2014 protests in Berkeley. In responding to the requests, the City of Hayward’s IT Manager spent 4.9 hours searching for and downloading police body cam videos from an online evidence storage system. The City’s Records Administrator, using free movie editing software, spent 35.3 hours removing all exempt audio and visual material from the video files, such as personal medical information and law enforcement tactical security measures. The City invoiced the Guild $2,938.58 for the time spent retrieving and redacting the body camera footage. The Guild paid under protest, then sued in Superior Court for a refund.

The City of Hayward argued that the invoiced work on the electronic records was recoverable as “data extraction and compilation,” allowable costs under Section 6253.9(b)(2).

The Supreme Court disagreed with the City of Hayward and ruled that the CPRA term “data extraction” does not cover the process of redacting exempt material from electronic records. The Court considered the terms “data compilation, extraction, [and] programming” to mean technological processes like programming and computer services, and not deleting electronic data or redacting. The Court noted that redaction could be time-consuming and costly, therefore assessing those significant costs to the requester would be “prohibitive.”

The Court specifically declined to address the question of whether the costs of the City’s IT Manager’s time searching for, locating, and collecting body camera videos in electronic form could be assessed to the requester as “data compilation.”

In its decision, the Court listed the following examples of what public agencies can and cannot charge for in a CPRA request:

CAN CHARGE:

A reasonable amount per page for hard copies based upon the agency’s cost of running the copy machine and the expense of the person operating it
Retrieving responsive data from a database that cannot itself be produced
Exporting responsive data from a large database into a spreadsheet in order to produce the spreadsheet
The cost of software that performs data extraction

CANNOT CHARGE:

Time spent searching through a filing cabinet for paper records
Time spent searching for responsive records in an e-mail inbox or computer documents folder
Determining which retrieved records (paper or electronic) are responsive to the request
Reviewing records to determine which portions of the responsive records are exempt from disclosure (paper or electronic)
Deleting or redacting exempt information from responsive records or spreadsheets (paper or electronic)

Significance of This Case: The California Supreme Court has clarified the distinction between assessing costs to a CPRA requester for extracting electronic data versus for gathering and redacting documents kept and produced in electronic form such as PDF and Excel. We recommend you consult with legal counsel if you have questions or concerns about how to respond to a CPRA request for electronic data or records.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice. Application of the law may vary depending on the particular facts and circumstances at issue. We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

Legal Update Memo No. 35-2020 – Public Entities Cannot Charge for Redacting Records Under the California Public Records Act (K-12)

Contact SCLS