Provided by CPOA Legal Counsel, Gregory P. Palmer, Jones & Mayer
On May 28, 2020, the California Supreme Court issued the long-awaited opinion in National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward (S252445). The Court rejected the argument that staff time and effort spent editing and redacting confidential or exempt data from responsive video footage could be charged to the Public Records Act requester.
Demonstrations broke out in Berkeley as a result of the deaths of Eric Garner and Michael Brown. The Hayward Police Department provided mutual aid to Berkeley in policing during the demonstrations.
After the demonstrations, the National Lawyers Guild, San Francisco Bay Chapter (“NLG”) submitted an 11 item Public Records Act (“PRA”) request seeking among other things, electronic communications, logs, reports, etc. Responsive paper records were located, redacted appropriately, and were provided to NLG in .pdf format. NLG was not charged for these records.
Though not specifically requested in NLG’s PRA request, the custodian handling the request, located approximately 90 hours of body work camera (“BWC”) video footage which were believed to be responsive to the PRA. Contained within the BWC was medical and otherwise confidential data which would have to be redacted prior to production. The City asserted that redacting 90 hours of BWC video was overly burdensome. The City asked NLG to narrow its request. NLG obliged this request and focused on six hours of BWC footage. NLG was not charged for these efforts.
City staff then used free video editing software to remove exempt audio segments in order to create edited videos which were stored on a thumb drive. The effort in separating the audio, removing exempt audio from the file, reconfiguring the audio track and uploading the edited audio to the video took 35.3 hours. The City then invoiced NLG almost $3,000.00, which it paid, in protest, in order to receive the videos.
NLG filed a declaratory and injunctive relief action and a writ of mandate petition in Alameda Superior Court seeking a refund of the money paid to receive the videos. The trial court held that Government Code §6253.9, subdivision (b)(2) (“6253.9(b)(2)”), which states that a City may charge for the production of an electronic record if it requires “data compilation, extraction or programming to produce the record” did not include making a redacted version of an existing Public Record. The Court of Appeal reversed the trial court and held that the costs were compensable under 6253.9(b)(2). The Supreme Court disagreed.
What Does “Extraction” Mean in 6253.9(b)(2)
The Court focused its analysis, in a 30-plus page opinion, on the meaning of the word “extraction” as set forth in Section 6253.9(b)(2). The term “extraction” is contained between the phrases “data compilation” and the word “programming”. The Court said, in the field of computing, the term “data extraction” does not include taking data out – it refers to a process of reviewing required or necessary data for a particular use.
Redacting data, on the other hand, is a common process in virtually every kind of public record, whether that record is in paper or electronic format. The court noted that the PRA does not allow for the cost of redacting a paper record to be charged to the requestor, so it did not make sense that a City could charge for the time spent redacting an electronic version of a document.
Indeed, the Court said the staff effort in viewing and redacting the video and audio content was not substantially different from using an electronic tool to draw black boxes over exempt material in an electronically formatted document.
Accordingly, the Court ruled that the shifting of costs uniquely associated with electronic records to a PRA requestor can only be done if there is a need to retrieve responsive data to produce a record but not the costs of redacting exempt information from the record.
The Court held the effort spent reviewing and redacting data from the video was akin to searching through a file cabinet for paper records, something an agency would clearly not be able to charge to a PRA requestor.
The Court’s decision was supported by the overall goal of the PRA, which is to “further the people’s right to access.” For many requestors, a charge of $3,000.00 for six hours of responsive video, would be cost prohibitive and would prevent access to public documents. The Court suggested that any unique burden placed on agencies in terms of redacting BWC footage should be directed to the legislature.
HOW THIS AFFECTS YOUR AGENCY
This decision has huge ramifications in dealing with SB 1421 documents. As many of us are aware, the staff time spent reviewing investigations with video and audio recordings that may be associated with certain uses of force, officer-involved shootings, claims of dishonesty and sexual assault investigations by peace officers, which became disclosable pursuant to SB 1421, can require herculean efforts and can literally take several hundred hours to perform. Based upon this ruling, the costs of those efforts must now be borne by the agency.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at firstname.lastname@example.org.
Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.