Obligations to Produce Electronic Records under the PRA

Under the California Public Records Act (Government Code § 6250 et seq. (“PRA”)), a public agency must make public records available, upon request, in any electronic format in which the agency maintains the information. If a specific format is requested, the agency must produce the records in that format if the agency has used the format to create copies for its own use or to provide to other agencies. (Government Code § 6253.9.) The agency is not required to reconstruct a record in an electronic format if the agency no longer has the record available in an electronic format.

Although the body of case law interpreting the PRA continues to grow, only a few court decisions have addressed the obligation to produce records in electronic format. This scant case law does, however, emphasize agencies’ obligations to produce these records on request, even when doing so is burdensome.

In 2013, the Court of Appeal reviewed a newspaper reporter’s lawsuit against a school district, filed the same day the district began producing records the reporter had requested. (Crews v. Willows Unified School District (2013) 217 Cal.App.4th 1368.) According to the court, district employees spent 198 hours reviewing, printing, scanning, and producing approximately 60,000 emails as pdf files. The district withheld approximately 3,200 pages it claimed were exempt from disclosure under the PRA. The trial court spent “an inordinate amount of time in reviewing the documents” in camera before finding the district did not improperly withhold any documents. (An omission of 91 pages of attachments was inadvertent and cured when the district realized the error.) The reporter’s PRA petition against the district was denied, and the trial court awarded fees and costs to the district under Government Code section 6259(d). The Court of Appeal reversed the award of fees and costs, holding the reporter’s petition was not “clearly frivolous.”

Also in 2013, the California Supreme Court reversed a lower court’s decision and held a county’s Geographic Information System (GIS) software was a public record, and the county had to disclose its parcel geographic database in a GIS file format to the Sierra Club. (Sierra Club v. Superior Court (2013) 57 Cal.4th 157.) The Court held that although GIS mapping software falls within the PRA’s exclusion for “computer software” including “computer mapping systems” a GIS-formatted database does not. The Court agreed with the Sierra Club’s argument that “the plain meaning of the subject term ‘software’ in [Government Code § 6254.9] subdivision (a) is commonly understood to be distinct from the data upon which the software operates.” Accepted definitions of software do not encompass user-generated data in a format compatible with specific software.

Despite the dearth of court decisions, records are increasingly requested under the PRA in electronic format. A common example is a request for lists of public employees, with details such as job titles, hire dates, salaries, and benefits—all in an Excel spreadsheet. Because so much information is capable of being formatted into spreadsheets, most agencies will find it difficult to object to such requests on the basis that they do not maintain the information in the format sought.

The cost of producing electronic records can be significant. The PRA permits the agency to charge “direct costs of duplication” (Government Code § 6253(b)), but not the cost of staff time to search, review, and redact the records. (North County Parents Organization v. Dep’t of Education (1994) 23 Cal.App.4th 144, 146.) As to electronic records, the PRA requires the requester to bear “the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record,” if (1) the electronic record is produced only at regular intervals, or (2) the request would require data compilation, extraction, or programming to produce the record. (Government Code § 6253.9(b).) In all other cases, only the direct cost of duplication can be passed on to the requester.

The direct cost of duplicating an electronic record may be close to zero, while tremendous effort is involved in compiling the information, as in the Crews case discussed above. Nonetheless, agencies are required to comply with these provisions, and subject to paying the requester’s legal fees and costs if records are improperly withheld.

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