Monday, October 1, 2018
Court of Appeal:
Requester Must Pay City’s Costs in Complying With CPRA Request
Reverses Order Requiring Refund to National Lawyers Guild of $3,200 Covering Costs of Software and Staff Time in Connection With Redacting Police Body Camera Recordings
By a MetNews Staff Writer
The First District Court of Appeal held Friday that the National Lawyers Guild’s San Francisco Bay Area Chapter was properly charged for the video editing software and manhours used to redact police body camera footage it requested under the California Public Records Act.
The opinion by Justice Martin J. Jenkins of Div. Three reverses a ruling by Alameda Superior Court Judge Evelio M. Grillo, who interpreted the California Public Records Act (“CPRA”) as not permitting the bills the City of Hayward charged for its purchase of Windows Movie Maker and the more than 40 hours spent by city employees redacting the requested video. He ordered the return to the guild of the $3,248.47 it paid, under protest, in connection with two sets of requests.
The National Lawyers Guild requested the video recorded by Hayward police officers who had provided security for protests in Berkeley in Dec. 2014, following the widely covered deaths of Michael Brown and Eric Garner.
Jenkins particularly disagreed with Grillo’s reading of Government Code §6253.9(b)(2), which requires a requester to foot the bill when “[t]he request would require data compilation, extraction, or programming to produce the record.”
Specifically, Jenkins noted, the term “extraction” is ambiguous as used in the statute, and that on its face the law could be read in favor of either party.
The jurist noted that “the word ‘extract,’ as the parties have agreed, usually and ordinarily means to remove or to take out.”
“At first glance, ‘taking out’ appears to be precisely the action taken by the City’s employees in this case, causing the City to incur the costs for which it now seeks reimbursement from the Guild—they removed or took out exempt material from the body camera video recordings in order to produce the otherwise disclosable recordings. The Guild, however, contends this action by the City was ‘redaction’—distinct from ‘extraction’—which means taking exempt material out of the original record in order to produce the original record, ‘but with empty holes[.]’ ‘Extraction,’ the Guild insists, means ‘pulling data out of an electronic database in order to generate a record’ in order to meet a CPRA request.”
Turning to the legislative intent behind the law, Jenkins wrote:
“In this legislative history, which we judicially notice for purposes of this appeal, we find several documents supporting the City’s position that section 6253.9(b) was intended to permit a local government to recover costs in circumstances, like this, where electronic public records require special computer programming to segregate disclosable from nondisclosable material in order to produce a copy of the record to the requester.”
He noted that many groups opposed the bill before the cost-shifting language was added, because “redacting or segregating nondisclosable electronic records from disclosable electronic records would be time-consuming and costly.”
Some of these groups, such as the California Association of Clerks and Election Officials, withdrew their objections to the bill upon the addition of the provision.
One group which had supported the bill was the California Newspaper Publishers Association (“CNPA”), whose then-general counsel Thomas W. Newton (now its executive director) wrote a letter in 2000 to then-Gov. Gray Davis supporting §6253.9(b), stating:
“This provision guarantees the costs associated with any extra effort that might be required to make an electronic public record available shall be borne by the requester, not the state or local agency.”
“[W]e conclude based on these documents that lawmakers were in fact aware the cost of redacting exempt information from electronic records would in many cases exceed the cost of redacting such information from paper records. For this reason (and perhaps others), lawmakers drafted section 6253.9(b) to expand the circumstances under which a public agency could be reimbursed by a CPRA requester to include, among others, the circumstance present here wherein the agency must incur costs to acquire and utilize special computer programming (e.g., the Windows Movie Maker software) to extract exempt material from otherwise disclosable electronic public records.”
The case is National Lawyers Guild v. City of Hayward, A149328.
The Reporters Committee for Freedom of the Press filed an amicus brief in the case, in support of the Guild. The CNPA joined in that brief.
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