National Lawyers Guild and the First District – Cost of Extracting Exempt Materials from Certain Digital Records is Allowable under the California Public Records Act
California’s First District Court of Appeals (First District) on October 26, 2018 issued a revised opinion and denied rehearing of the First District’s finding that a California Public Records Act (CPRA) requestor is responsible for the City of Hayward’s (Hayward) actual expenditures in producing an extracted copy of digital records. The First District’s use of actual expenditures, rather than just direct costs of duplicating records, is of interest to agencies and local governments in California that review and redact public records. Traditionally, the actual ancillary costs of retrieving, inspecting, and handling material prepared for disclosure generally cannot be charged to the requestor.
National Lawyers Guild, SF Bay Area Chapter v. City of Hayward et al. concerns a California Public Records Act (CPRA) request from the National Lawyers Guild (Guild) for 11 categories of paper and electric public records relating to a demonstration in Berkeley where the Hayward Police Department provided security. In response to the request, Hayward provided copies of over 200 public records, including six hours of body camera videos that had been edited to exclude material exempt from disclosure under the CPRA on privacy grounds. Hayward issued an invoice for $2,939.58 for certain hours spend retrieving, reviewing, and redacting the materials subject to the request. The Guild paid the invoice under protest but challenged the invoice through a Petition for Declaratory and Injunctive Relief and Writ of Mandate at the trial court.
Upon review, the trial court decided that Hayward had to refund the Guild payments made to cover Hayward’s costs in complying with the requests for production under the CPRA. The trial court found that, as a matter of law, the CPRA does not permit Hayward to charge a CPRA requester for costs incurred in making a redacted version of an existing public record. This finding was appealed, and the First District reviewed de novo whether Hayward was entitled under Section 6253.9(b) to recover certain costs it incurred in editing and redacting exempt material on otherwise disclosable police department materials prior to production.
Section 6253.9(b), provides that, when electronic (rather than paper) records are requested, an agency can recover specified ancillary costs in either of two cases:
(1) when it must “produce a copy of an electronic record” between “regularly scheduled intervals” of production, or;
(2) when compliance with the request for an electronic record “would require data compilation, extraction, or programming to produce the record.”
In light of this language, Hayward argued that “[t]aking exempt material out of a digital video file in order to allow a record to be produced is a form of extraction . . . [such that its] efforts may be invoiced to a requestor as authorized by Section 6253.9(b)(2).” The Guild disagreed, arguing that “extraction,” as used in the statute, is limited to situations where “ ‘[t]he request would require data compilation, extraction, or programming to produce the record. . . . Nothing in the statutory language indicates that the term ‘extract’ means to reduce a record by taking out information that is exempt from public disclosure.” The trial court had accepted the Guild’s argument, concluding “the phrase ‘data compilation, extraction, or programming to produce the record’ does not refer to making a redacted version of an existing public record.”
Thus, the First District focused their analysis on interpreting the term “extraction” as used in the CPRA. The First District found that it was unclear from the statutory language what extraction meant, and looked to legislative history for guidance. In the legislative history, the First District found documents supporting the Hayward’s position that Section 6253.9(b) was intended to permit a local government to recover costs in circumstances where electronic public records require special computer programming to segregate disclosable from nondisclosable material in order to produce a copy of the record to the requester. In the view of the First District, the lawmakers were “in fact aware” that the cost of redacting exempt information from electronic records would in many cases exceed the cost of redacting such information from paper records.
Drawing from the language of the statute, legislative history, and policy considerations, the First District concluded that the costs allowable under Section 6253.9(b)(2) include Hayward’s actual expenditures to produce a copy of the police body camera video recordings, including the cost of extracting exempt material from these video recordings with the aid of special computer programming. This finding is significant as it incorporates costs that are above the direct costs of duplication, extending to time spent extracting exempt material through special computer programming. Aside from Windows Media Software, other software is used in document redaction and extraction, and the First District’s rationale might extend to use of those special computer programs as well. Lastly, it is worth noting that a petition for review has been provided at the California Supreme Court (Case Number S252445) and so the outcome at the First District may be subject to change should the California Supreme Court take up review. If you have any questions about the National Lawyers Guild decision or how it may impact your organization, please contact Dan Griffiths at dg@cameron-daniel.com.