CPRA Update: Supreme Court Rules Public Agencies Cannot Charge for Redacting Electronic Public Records
The California Supreme Court issued a significant ruling in National Lawyers Guild v. City of Hayward on May 28 concerning public agencies’ ability to recover costs under the California Public Records Act (“CPRA,” Government Code §§ 6250 et seq.). The Court held that a public agency cannot charge a requester for the costs of the agency redacting exempt material from otherwise disclosable electronic records, such as police officer body camera footage.
In National Lawyers Guild, plaintiffs sought various records from the City of Hayward regarding the Hayward Police Department’s actions while policing a protest. In addition to electronic written records, the City determined that certain police officer body camera footage was responsive. The City used a technical process to remove visual and audio materials exempt from disclosure under the CPRA from the videos. Thereafter, the City notified the plaintiffs that the videos were available, but only if the plaintiffs first paid the City for the costs to redact the videos and prepare them for production. The plaintiffs paid the requested amount under protest, and later filed a lawsuit challenging the City’s charges. The trial court sided with plaintiffs, the Third District Court of Appeal agreed with the City, and the California Supreme Court reversed – holding the City was not authorized to charge those costs to the plaintiff under the CPRA.
Court Analyzes Definition of “Extraction”
The CPRA generally prohibits public agencies from charging a person who requests records anything other than the direct costs of copying the records. For this reason, public agencies may not charge for the time it takes to retrieve, review and redact public records. However, the CPRA contains additional provisions regarding costs for producing electronic records. Specifically, the CPRA provides that a public agency may charge the requester for the cost of producing electronic records when “[t]he request would require data compilation, extraction, or programming to produce the record.” (Gov. Code § 6253.9(b)(2).) In National Lawyers Guild, the City of Hayward argued that redacting the body camera footage was as an “extraction” of data necessary to produce the records, and therefore the requester was responsible for paying the associated costs. The Supreme Court rejected this argument.
- The Supreme Court explained that when the CPRA uses the term “extraction” it is referring to the retrieval of data for further use, and not simply to the deletion of certain materials, as is the case when redaction occurs.
- The CPRA allows public agencies to charge requesters for costs “uniquely associated with the production of electronic record copies”, but not the costs of redacting exempt information from those electronic records. Such redaction costs must be borne by the public agency, just as when the public agency redacts paper records.
- The Supreme Court did not identify a list of what costs might qualify as “uniquely associated with the production of electronic record copies”, but did provide limited examples, such as retrieving responsive data from an unproducible database.
Ruling’s Impact on Public Agencies
The Court’s decision will require public agencies to expend additional resources responding to public records requests. Although the technology for redacting video and audio footage has improved in recent years, the frequency of requests has also generally increased in light of the enactment of SB 1421 and AB 748, which generally require the disclosure of some previously exempt police officer body camera footage. These videos often contain significant amounts of footage and audio that must be redacted. The Court’s decision underscores that the cost of this redaction must be borne by the public agency and not the requester.