FEATURE ARTICLE
PAYING FOR PUBLIC RECORDS By Christine N. Wood
Christine Wood is the Director of PRA Services and e-Discovery Counsel at Best Best & Krieger LLP. She can be contacted at christine.wood@bbklaw.com.
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ithin California, the Legislature has provided a constitutional guarantee that the public can access a municipality’s records through the California Public Records Act (PRA), which is codified at Gov. Code § 6250, et seq.1 “Modeled after the federal Freedom of Information Act, the PRA was enacted for the purpose of increasing freedom of information by giving members of the public access to records in the possession of state and local agencies.”2 This right to access is broad, but not absolute. The PRA contains specific and narrow exemptions to protect an individual’s privacy interests; for example, personnel or medical records are exempt from disclosure if their release would result in an unwarranted invasion of someone’s privacy.3 Additionally, the PRA allows an agency to collect the direct costs of duplication, such as the direct cost of making copies, (i.e., paper and toner).4 Otherwise, the public should be able to scrutinize the work of public agencies without the worry of costs. As you can imagine, technology has reduced the need to photocopy records when providing them to the public. Hence, in 2000, the Legislature amended the PRA to make it easier for agencies to get records to the public and to clarify when the public may need to pay for access to electronic records. Gov. Code § 6253.9 was added to allow an agency to charge the public for the cost of programming and computer services necessary to produce a copy of the records, if a request requires data compilation, extraction, or programming to produce the record.5 Interestingly, twenty years after this provision was enacted, the California Supreme Court recently pro-
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vided guidance as to what the Legislature meant by “extraction” such that the public would have to pay for the public record. In National Lawyers Guild v. City of Hayward (2020) 9 Cal.5th 488, the California Supreme Court considered whether the City of Hayward could recover its costs to acquire and utilize special computer programming (e.g., Windows Movie Maker software) to extract exempt material from otherwise disclosable body camera footage.6 Here are the facts. In 2014, the Hayward Police Department provided aid to the City of Berkeley in policing demonstrations to protest the murder of unarmed black men at the hands of law enforcement.7 After the demonstrations, the National Lawyers Guild (NLG) submitted two public records requests for, inter alia, the body camera footage from the Hay-
SACRAMENTO LAWYER | Summer 2020 | www.sacbar.org
ward officers policing the demonstrations.8 Hayward identified 141 videos totaling 90 hours of footage that were potentially responsive to the NLG request.9 In cooperation with Hayward, NLG narrowed its first request to six specific hours of footage.10 Using Windows Movie Maker, Hayward spent 35.3 hours to remove exempt audio and video material and charged NLG roughly $3,000 for the time spent searching for and editing these six hours of video.11 NLG paid, under protest, for the footage that was responsive to the first request.12 After the City charged NLG for the footage responsive to the second request, NLG filed a writ of mandate seeking a determination that the City improperly charged it.13 Since the issue was one of statutory interpretation, the Supreme Court looked to the statutory language and the legislative intent to determine whether “extraction”
