California Cops Can No Longer Pass the Cost of Digital Redaction onto Public Records Requesters

At a dark time when the possibility of police accountability seems especially bleak, there is a new glimmer of light courtesy of the California Supreme Court. Under a new ruling, government agencies cannot pass the cost of redacting police body-camera footage and other digital public records onto the members of the public who requested them under the California Public Records Act (CPRA).

The case, National Lawyers Guild vs. Hayward was brought by civil rights groups against the City of Hayward after they filed requests for police body-camera footage related to protests on UC Berkeley’s campus following the deaths of Eric Garner and Michael Brown. Hayward Police agreed to release the footage, but not before assessing nearly $3,000 for redacting the footage and editing that they claimed NLG needed to pay before they’d release the video.

The California Supreme Court sided with NLG, as well as the long list of transparency advocates and news organizations that filed briefs in the case. The court ruled that:

“Just as agencies cannot recover the costs of searching through a filing cabinet for paper records, they cannot recover comparable costs for electronic records. Nor, for similar reasons, does ‘extraction’ cover the cost of redacting exempt data from otherwise producible electronic records.”

The court further acknowledged that such charges “could well prove prohibitively expensive for some requesters, barring them from accessing records altogether.”

This is an unqualified victory for government transparency. So what does this mean in practical terms for public records requesters? As people march against police violence across the Golden State, many members of the press and non-profits will likely use the CPRA to obtain evidence of police breaking the law or otherwise violating people’s civil rights.

These videos can prove to be invaluable records of police activity and misconduct, though they can also capture individuals suffering medical emergencies, violence, and other moments of distress. The CPRA attempts to balance these and other interests by allowing public agencies to redact personally identifying details and other information while still requiring that the videos be made public.

So when making a request for body-camera footage, the first thing requesters should know is that sometimes the individuals handling public records requests are not keeping up with legal decisions, particularly one issued last week. To preempt these misinterpretations of the law, requesters could consider including a line in their letters that says something like:

“Pursuant to NLG vs. Hayward, S252445 (May 28, 2020), government agencies may not charge requesters for the cost of redacting or editing body-worn camera footage.”

More broadly, the decision’s reasoning doesn’t just apply to body-camera footage, but all digital records. This is because the court’s ruling recognizes that because the CPRA already prohibits agencies from charging requesters for redacting non-digital records, that same prohibition applies to digital records.

So, in requests for electronic information, such as emails or datasets, you could include the line:

“Pursuant to NLG vs. Hayward, S252445 (May 28, 2020), government agencies may not charge requesters for the cost of redacting digital records.”

Additionally, people filing CPRA requests for digital records should know that the law does permit agencies to charge for the costs of duplicating records, though in the case of digital records that cost should be no more than the price of media the copy is written to – in NLG’s case, it was $1 for a USB memory stick.

The CPRA also permits agencies, in certain narrow circumstances, to charge for its staff’s time spent programming or extracting data to respond to a public records request. The good news is that the California Supreme Court’s decision last week significantly narrowed the circumstances under which an agency can claim these costs and pass them along to requesters.

According to the court, data “extraction” under the CPRA “refers to a particular technical process—a process of retrieving data from government data stores—when this process is” required to produce a record that can be released. The court said the provision would permit charges when, for example, a request for demographic data of state employees requires an agency to pull that data from a larger human resources database. But “extraction” does not cover the time spent searching for responsive records, such as when an official has to search through email correspondence or a physical file cabinet.

Requesters should thus be prepared to push back on any agency claims that seek to assess charges for merely searching for responsive records. And requesters should also be on the lookout for exorbitant charges associated with data “extraction” even when the CPRA permits it, as such techniques in practice can amount to little more than a database query or formula.

Source: California Cops Can No Longer Pass the Cost of Digital Redaction onto Public Records Requesters