Case Law Begins to Define Peace Officer CPRA Requests
On September 28, 2018, the California Court of Appeals, First District, issued a decision holding that city expenditures to edit and produce police body worn camera footage are recoverable costs under the California Public Records Act (“CPRA”).
National Lawyers Guild v. City of Hayward (2018) 27 Cal.App.5th 937 stems from a CPRA request the San Francisco chapter of the National Lawyers Guild (“Guild”) served on the City of Hayward Police Department (“City”) in 2015, asking for footage of alleged police misconduct during a prior protest. The Guild initially requested more than 90 hours of footage from 141 different sources of video. After purchasing Windows Movie Maker software to make the necessary redactions to avoid prohibited privacy and security disclosures, and spending over 170 hours identifying, editing, and compiling footage, the City ultimately provided the Guild with six hours of film. In addition to the six hours of tape, the City also sent the Guild an invoice for $2,939.58, which covered the purchase price of the Windows Movie Maker software and the costs incurred by its employees to review, redact, and produce the nondisclosable material. The Guild argued that under the CPRA and Government Code section 6253.9(b), it was only responsible for paying for the direct costs of production, not the costs associated with redacting the nondisclosable material.
The dispute centered on the language in Government Code section 6253.9(b) because the statute does not define “extraction.” Section 6253.9(b) provides that an agency can recover costs incurred in producing electronic records either (1) when it must produce a copy of an electronic record that is only produced at otherwise regularly scheduled intervals, or (2) when compliance with the request for an electronic record would require data compilation, extraction, or programming to produce the record. (Emphasis added.)
The City claimed that the statute’s definition of “extraction” included taking exempt material out of a digital video file in order to allow a record to be produced. The Guild, on the other hand, argued that the City’s interpretation of the statute conflates “extraction” with redaction. The Guild insisted that extraction in light of section 6253.9(b) meant “pulling data out of an electronic database in order to generate a record.” Under this interpretation, the Guild argued that their request did not require any data extraction because their requested record—the video footage—already existed.
Although the Court admitted the statute provided no clear answer, it ultimately sided with the City. The Court stated that the California Legislature intended 6253.9(b) to allow local agencies to recover costs where special computer programming was required to segregate disclosable from nondisclosable material in order to produce copies of a record. The Court noted that the Legislature was aware that redacting an electronic record is a much more expensive process than redacting a paper record, which also lent support to the Court’s opinion. The Court ultimately remanded the case back to the trial level to determine the exact costs the City could recover from the Guild. Consequently, this case makes it clear that costs incurred by agencies to produce CPRA-requested body camera footage, including time spent redacting exempt material from video recordings and the cost for acquiring new computer programming software to make the necessary redactions, is recoverable.
National Lawyers Guild v. City of Hayward will be useful for agencies who receive CPRA requests for body worn camera footage under the new laws of Senate Bill 1421 and Assembly Bill 710, which we discussed in a previous alert.