In Responding to Public Records Act Requests, Public Agencies May Not Recover Costs to Redact Electronic Records

Public Agency Law Alert (June 8, 2020)

On May 28, 2020, the California Supreme Court issued an opinion concerning what costs public agencies may recover in responding to a document request under the California Public Records Act (PRA; Gov. Code, §6250 et seq.). (National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward (NLG v. City of Hayward) (May 28, 2020, No. S252445) __ Cal.5th __ [2020 Cal. LEXUS 3441]; https://www.courts.ca.gov/opinions/documents/S252445.PDF.) The Court held that public agencies may not charge for the costs to redact electronic public records as a condition of gaining access to the records.

As background, the PRA establishes a right of public access to government records. The PRA was enacted to further “access to information concerning the conduct of the people’s business,” which the Legislature characterized as a “fundamental and necessary right of every person in this state.” (Gov. Code, §6250.) The PRA acknowledges that there are costs associated with providing access to government information, and allocates certain costs to the requester, while others must be borne by the agency responding to the requests. As a general rule, a person who requests a copy of a government record under the PRA must pay only the direct costs of duplicating the record, and not other ancillary costs, such as the costs of redacting material that is statutorily exempt from public disclosure. (Gov. Code, §§6253, subd. (b), 6253.9, subd. (a)(2).) But, a special costs provision specific to electronic records says that, in addition to paying for duplication costs, requesters must pay for the costs of producing copies of electronic records if producing the copies “would require data compilation, extraction, or programming.” (Gov. Code, § 6253.9, subd. (b)(2); NLG v. City of Hayward, supra, 2020 Cal. LEXIS 3441, at *3-4.)

NLG v. City of Hayward involved a PRA request concerning digital police body camera footage. In December 2014, demonstrations erupted in Berkeley protesting grand jury decisions not to indict the police officers involved in the deaths of two unarmed African-American men. NLG submitted a PRA request to the Hayward Police Department seeking records relating to the Department’s actions in policing the demonstrations. The Department’s custodian of records determined that certain videos from body-worn cameras might be responsive to the records request. However, the videos contained exempt material, including personal medical information and law enforcement tactical security measures. (Gov. Code, §6254, subds. (c) and (f).) Thus, the custodian of records spent 35.3 hours editing out the visual and audio segments that were exempt, and the City invoiced NLG $2,938.58 for these costs to prepare the videos for production. NLG paid the invoiced amount under protest and received the videos.

NLG filed a petition seeking a refund of the money it had paid to receive the videos, beyond the direct costs of duplicating the videos. In response, Hayward argued that the invoiced costs were justified under the PRA because the City’s staff had performed “data extraction and compilation,” as allowed under PRA section 6253.9(b)(2). The trial court found that the charges were unjustified and granted the petition. However, the Court of Appeal reversed, agreeing with Hayward that section 6253.9(b)(2) entitled Hayward to recover its costs for redacting the videos as an “extraction” of data necessary to produce the record. The California Supreme Court granted review.

As mentioned, PRA section 6253.9(b)(2) permits charging requesters for the cost of “extract[ing]” data to produce or construct electronic records. The question on review was what the Legislature meant by the term “extraction,” which the PRA does not define. In the context of PRA section 6253.9(b)(2), the Court held that “extraction” does not cover the costs of redacting electronic records. The Court relied on a technical definition of “extraction,” to refer to a process of retrieving required or necessary data for a particular use, rather than omitting or deleting unwanted data. Thus, the Court interpreted section 6253.9(b)(2) to permit the shifting of costs uniquely associated with the production of electronic record copies — including, as relevant here, the need to retrieve responsive data in order to produce a record that can be released to the public — but not the costs of redacting exempt information from the record. This interpretation is consistent with the legislative history of section 6253.9(b)(2), which indicates that the Legislature was primarily concerned with the costs of retrieving requested data that was not easily accessible in order to produce it, as opposed to time spent redacting exempt information.

In short, “extraction” costs recoverable under the PRA include costs to retrieve responsive data from an unproducible government database, but do not cover every process that might be colloquially described as “taking information out,” such as redaction costs. The Court noted that this holding is confirmed by California’s constitutional directive to “broadly construe” a statute “if it furthers the people’s right to access.” (Cal. Const., art. I, § 3, subd. (b)(2).) This Constitution provision favors an interpretation that avoids erecting substantial financial barriers to access, and redaction costs are often nontrivial, as shown in this case, where NLG was charged about $3,000 for responsive video.

To the extent public agencies are concerned about being made to respond to overly burdensome requests without adequate funding, the Court notes that the PRA provides various solutions to ease those burdens, including:
  • Agencies are required to disclose nonexempt portions of records only if they are “reasonably segregable” from portions exempted by law. (Gov. Code, §6253(a).)
  • Agencies are allowed to 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).)
  • And, agencies are allowed to suggest ways requesters can reduce practical barriers to agency compliance with any request. (Gov. Code, §6253.1(a)(3).)
The California Supreme Court noted that no similar provisions protect requesters from costs that unduly burden their right of access to government information; thus, this consideration favors a rule that avoids shifting routine redaction costs as a condition of gaining the access the PRA promises.

Finally, although the facts of NLG v. City of Hayward involved requests for body camera footage, which present unique concerns for government agencies with limited resources, the Court noted that section 6253.9(b)(2) of the PRA is not a provision directed to body camera footage alone; it covers every type of electronic record, from garden-variety e-mails to large government databases. As such, the Court’s ruling applies to requests for all types of electronic government records — the PRA does not provide a basis for charging requesters for the costs of redacting such records.

[This case alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]