Agency Was Permitted to Recover Costs of Redacting Electronic Public Records.

Category: Client Update
Date: Dec 3, 2018 06:44 PM

The California Court of Appeal found that the California Public Records Act (“CPRA”) permits a public agency employer to recover, from the requestor of public records, the actual costs to the agency of redacting information from electronic records in response to a request for electronically stored public records.

In this case, the National Lawyers Guild (“NLG”) San Francisco Chapter 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.  In response to the first request, the City produced more than six hours of body camera footage.  City staff spent approximately 170 hours reviewing and redacting portions of the video that were exempt from disclosure under the CPRA.  The task required the City to research and acquire a special software program 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 costs for: City staff time spent reviewing and editing/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 offered to produce copies for $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 and the City appealed.

First, the Court of Appeal recognized that a person’s protected right of access to information regarding the conduct of a police force must sometimes yield to the personal privacy interests of others.  The CPRA specifies that “if only part of a record is exempt, the agency is required to produce the remainder, if segregable” but the agency may not withhold the entire document.  (Gov. Code 6253, subd. (a).)

Second, the Court of Appeal interpreted section 6253 and section 6253.9 of the CPRA.  Section 6253 allows an agency to recover the direct costs of duplication (interpreted to cover, for example, photocopying costs and the expense of running the machine).  Section 6253.9 requires government agencies that keep public records in an electronic format to make them available in electronic format and permits an agency to recover ancillary costs of producing public records.  Specifically, section 6253.9 specifies: a requester “shall bear the cost of producing a copy of the record, including the cost to construct a record, and 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 to produce the record.’”  (Gov. Code 6253.9, subd. (b), (b)(2) (emphasis provided).)  The Court of Appeal found that the legislative history of the CPRA indicated that section 6253.9 was added to allow public agencies to recover, in addition to the direct costs of duplication, the costs of acquiring and utilizing computer programs “to extract exempt material from otherwise disclosable electronic public records.”

For these reasons, the Court of Appeal found that the CPRA allowed the City to charge a requestor of records for the costs of creating a redacted version of an existing public record.

National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward, et al.,  27 Cal.App.5th 937 (2018).

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