California Supreme Court Rules Video Redaction Costs Under CPRA Are Not Recoverable
On May 28, 2020, the California Supreme Court issued its long-awaited ruling in National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward (2020) - - P.3d - -. The Court overturned the 2018 Court of Appeals decision, and held that a requestor under the California Public Records Act (Government Code § 6250 et seq., “CPRA”) is not required to pay costs associated with redacting protected materials from an electronic record before the record is disclosed.
In City of Hayward, the National Lawyers Guild (“NLG”) requested records relevant to a 2014 demonstration that took place in Berkeley after a grand jury decided not to indict the police officers involved in the deaths of two unarmed African-American men. The City of Hayward provided mutual aid during the demonstrations. Several of the Hayward police officers policing the demonstrations were equipped with body-worn cameras. The City determined that the video footage from those cameras could be responsive to NLG’s request, and it reviewed the footage and determined that it contained exempt material under Government Code Section 6254 subdivisions, (c) and (f). The exempt material included personal medical information and law enforcement security measures. Redacting the exempt material from the video footage took the City’s employees 35.3 hours.
The City charged NLG over $3,000 for time spent redacting the videos, relying on Government Code Section 6253.9(b)(2). Section 6253.9(b)(2) provides that a requestor must pay for the cost of producing electronic records if producing the records “would require data compilation, extraction, or programming.” NLG filed a writ of mandate against the City, claiming that the charges were excessive. The trial court held that the phrase “data compilation, extraction, or programming to produce the record” does not include “making a redacted version of an existing public record.” The Court of Appeal disagreed, holding that the term “extraction” in Section 6253.9 was ambiguous, but that the legislative history supported that the redaction of exempt information form electronic records was a recoverable cost.
The California Supreme Court’s unanimous opinion by Justice Kruger reversing the Appellate decision recognizes that the CPRA “allocates certain costs to the [record] requester, while others must be borne by the agency responding to the requests.” However, it concludes “the term ‘data extraction’ does not cover the process of redacting exempt material from otherwise disclosable electronic records.” The Court focused its analysis on the legislative intent of the word “extraction,” and concluded that it did not include video redaction. Further, the Court noted that while the City’s video redaction might have required special effort, technological advancements may make video redaction more routine and thus not chargeable as data extraction costs.
The Court noted that while section 6253.9(b)(2) does apply to body-worn camera footage, it also “covers every type of electronic record, from garden-variety emails to large government databases.” However, for most agencies, the Court’s decision in City of Hayward will have a significant impact on their body-worn camera policies. Agencies can expect to receive more requests for video footage under the CPRA based on the Court’s ruling in City of Hayward. Even though an agency will undoubtedly need to allocate several hours to redacting confidential information from the video footage before releasing, this cost may not be charged to the requestor.