No case law last week?  I’ll make up for it this week.  🙂

In Nat’l Lawyers Guild v. City of Hayward, S252445 (Cal. May 28, 2020), the Supreme Court of California rejected the defendant’s attempt to charge the plaintiff for approximately 40 hours its employees spent editing out exempt material from digital police body camera footage, “conclud[ing] the term ‘data extraction’ does not cover the process of redacting exempt material from otherwise disclosable electronic records” and ruled that the defendant “must bear its own redaction costs.”

Case Background

The California Public Records Act (PRA) establishes a right of public access to government records and is modeled after the federal Freedom of Information Act.  The Legislature that enacted the PRA recognized that increased access to government information can have both intangible and tangible costs, and it crafted the PRA accordingly. First, and most important, the Legislature recognized that increased public access to government records can come at the expense of personal privacy and other important confidentiality interests.  As a result, the Legislature crafted exemptions, which permit public agencies to withhold a variety of records – or reasonably segregable portions of records – to protect confidential information.

The Legislature also recognized that increased public access to government information has monetary costs as well.  Before providing access to requested records, public agencies need to locate and collect records, determine which records are responsive, determine whether any portions of responsive records are exempt from disclosure, convert the records into a reviewable format, and, if requested, create a copy of the record. To complete these tasks generally requires personnel time as well as the use of office equipment and supplies—all of which comes with a price tag. The PRA acknowledges as much and allocates certain costs to the requester, while others must be borne by the agency responding to the requests.

In this case, the defendant redacted police body camera footage taken during a protest over grand jury decisions to not indict the police officers involved in the deaths of Eric Garner and Michael Brown, both unarmed African American men.  Because the police needed to take out sensitive medical and police tactic information, the defendant claimed that redaction qualified as data “extraction” under the PRA per section 6253.9, subdivision (b)(2), which 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.”).

The defendant invoiced NLG $2,938.58 which included 40.2 hours of staff time spent preparing the videos for production and $308.89 for time to prepare a second video. The plaintiff, which requested the footage, paid both invoiced amounts under protest and received the videos, but filed a petition for declaratory and injunctive relief and writ of mandate against the defendant, arguing that “extraction” only applied when the defendant was creating new content from existing records.  The trial court agreed with the plaintiff, holding that “the phrase ‘data compilation, extraction, or programming to produce the record’ ” does not include “making a redacted version of an existing public record.”  But, the Court of Appeal reversed, agreeing with the defendant that section 6253.9(b)(2) entitled the defendant to recover its costs for redacting the videos as an “extraction” of data necessary to produce the record.

Court’s Ruling

Noting that the PRA does not define the term “extraction” and noting that subdivision (b) (section 6253.9(b)) is, broadly speaking, a technical provision, the Court stated:

“In the field of computing, the term ‘data extraction’ does encompass a process of taking data out, but it is generally used to refer to a process of retrieving required or necessary data for a particular use, rather than omitting or deleting unwanted data.”

The Court also stated that “NLG’s view aligns with this more technical usage of the term ‘extraction,’ as well as with the particular context in which the term appears in section 6253.9(b)(2).”  The Court also stated: “To the extent we can discern anything instructive from the legislative history, the lessons are generally consistent with NLG’s view that the Legislature was primarily concerned with the costs of retrieving information from government stores, as opposed to time spent redacting exempt information.”

As a result, the Court reversed the judgment of the Court of Appeal.  However, the Court did note that the defendant also argued that it performed “data compilation,” as the term is used in section 6253.9(b)(2), when it searched for, located, and collected the responsive videos, but since neither the trial court nor the Court of Appeal addressed this argument, it declined to address it in the first instance.

So, what do you think?  Should public agencies or requestors bear the cost for redaction of materials associated with public records requests?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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