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.

Within 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

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 Hayward 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”

as used in Gov. Code § 6253.9(b) included the extraction of exempt material from otherwise disclosable electronic records. 14 The Court found that the Legislature drafted Gov. Code § 6253.9 specifically to make it easier for the public to gain access to electronic records. 15 Since it was a long-standing and well-accepted principle that public agencies cannot charge for the cost of removing exempt material from traditional records, 16 the Court inferred from the legislative intent that the Legislature did not intend to make it more costly to obtain electronic records. 17 Therefore, it would have been incongruent with the Legislature’s intent to allow Hayward to charge NLG for the cost of using Windows Movie Maker to extract exempt material from the requested body camera footage. 18 “Just as agencies cannot recover the costs of searching through a filing cabinet for paper records, they cannot recover comparable costs for electronic records.” 19

Once the Court determined what was not meant by “extraction,” it began to offer some guidance about what the Legislature intended by the term. According to the Court, since the term extraction was “sandwiched” between technical processes, such as data compilation and programming, it was reasonable to assign a more technical meaning to the term. 20 “In the field of computing, the term ‘data extraction’…is generally used to refer to a process of retrieving required or necessary data for a particular use.” 21 Hence, extraction as used in Gov. Code § 6253.9 would involve constructing a new record after retrieving responsive data from an unproducible government database. 22

Hayward argued that this holding by the Court would not comport with established precedent because, as a general rule, the PRA did not require agencies to create records in order to satisfy a records request. 23 The Court addressed this directly by distinguishing between creating a record and constructing a record from public data. 24 “[T]he PRA does not relieve agencies of the obligation to retrieve data to construct disclosable records; it instead protects them from any obligation to generate new substantive content for purposes of public release.” 25 In fact, Gov. Code § 6253.9 specifically provides that a “requester shall bear the cost of producing a copy of the record, including the cost to construct a record.” This language would be meaningless if agencies were not required, in appropriate circumstances, to construct records. 26

National Lawyer Guild v. Hayward was an incredibly important case to public agencies because it clarified a unique provision in the PRA that provide for cost-shifting. The Court’s decision may not have affirmed the City of Hayward’s fees for redacting the body camera footage, but it spells out clearly how agencies can shift costs to requesters—a very rare opportunity within the PRA.

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4. Unless otherwise noted, all statutory references are to the California Government Code.

Los Angeles County Board of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 290. § 6254(c). County of Santa Clara v. Superior Court (2009) 170 Cal.App.4th 1301, 1336. National Lawyers Guild v. City of Hayward (May 28, 2020, S252445) ___ P.3d ___ [p. 4] (hereinafter “NLG”).

7. 8. Id. at p. 3. Id.

9.

Id. 10. Id. 11. Id. at p. 4. 12. Id. 13. Id. 14. Id. at p. 5. 15. Id. at p. 7. 16. North County Parents Organization v. Department of Education (1994) 23 Cal.App.4th 144, 146.

17. NLG (May 28, 2020, S252445) ___ P.3d ___ [p. 7] 18. Id. 19. Id. at p. 8. 20. Id. at p. 5. 21. Id. 22. Id. at p. 6. 23. § 6252(e); Sander v. Superior Court (2018) 26

Cal.App.5th 651, 665; Haynie v. Superior Court (2001) 26 Cal.4th 1061, 1075. 24. NLG (May 28, 2020, S252445) ___ P.3d ___ [p. 6 (citing Sander, supra, 26 Cal.App.5th at 669)]. 25. Id. 26. Id. at 5.