California Supreme Court Rules Public Agencies Bear the Costs of Producing Documents Pursuant to the Public Records Act
On May 28, 2020, the California Supreme Court in National Lawyers Guild v. City of Hayward unanimously held the City of Hayward (“City”) bears the costs of redacting body worn camera video pursuant to a valid request pursuant to the California Public Records Act (“CPRA”).
Following demonstrations in 2014 to protest police violence, The National Lawyers Guild, San Francisco Bay Area Chapter (“Guild”) served the City with requests for public records. The City did not challenge the validity of the requests under the CPRA. Instead, the City provided over six hours of body worn camera video from the event. The City spent over 150 hours reviewing and redacting the footage pursuant to the CPRA to exclude content exempt from disclosure due to privacy concerns.
The City sent the Guild a bill for more than $3,000 and the Guild filed a writ mandate in September 2015, arguing the CPRA does not allow the City to charge fees for redacting body camera footage. Under California Government Code Section 6253.9(b)(2), the City argued the Guild should bear the costs. Section 6253.9(b)(2) states that the requester shall bear the costs when “[t]he request would require data compilation, extraction, or programming to produce the record.”
The trial court ruled in favor of the Guild, holding the CPRA does not permit the City to charge for costs incurred to redact an existing public record. The City appealed. The court of appeal reversed and remanded, concluding the City’s costs to produce the body camera videos (including cost of redacting the footage) were recoverable costs under the CPRA.
The California Supreme Court unanimously reversed that decision, holding the City bears its own redaction costs. Justice Kruger’s opinion focused on the legislative intent regarding the term “data extraction.” The Court determined “data extraction” does not extend to the process of redacting exempt material from electronic records that are otherwise discoverable. Also, the Court focused on the policy augmenting the public’s access to records. Justice Kruger stated, “Redaction costs could well prove prohibitively expensive for some requesters, barring them from accessing records altogether.”
All public agencies, notably police departments, should be on notice that they will be expected to absorb the costs of not only producing, but also redacting discoverable public records pursuant to the CPRA (Gov. Code 6250). This extends beyond body worn camera video. The Court noted it “covers every type of electronic record, from garden-variety emails to large government databases.”
Agencies should allocate resources accordingly and plan to see an increase in requests for video footage following the ruling. For overly burdensome requests, consider Government Code section 6255(a), which allows agencies to withhold records if “the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.”
A copy of the Court’s opinion, including the concurrence filed by Justice Cuèllar, can be found here.
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