Metropolitan News-Enterprise


Friday, May 29, 2020


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California Supreme Court:

Requestor of Electronic Records Can’t Be Charged Editing Costs

Kruger Writes for Unanimous Court in Saying That a Provision of the Public Records Act Authorizing Charges for ‘Data Extraction’ Must Be Read in Technical Sense and Does Not Mean ‘Redaction’


By a MetNews Staff Writer


A provision in the California Public Records Act authorizing governmental entities to charge requestors of electronic records the cost of “data extraction” does not permit passing on the costs of redacting exempt matter from those records, the California Supreme Court held yesterday.

Justice Leondra Kruger wrote for a unanimous court in reversing a contrary determination by the First District Court of Appeal. Justice Mariano-Florentino Cuéllar signed her opinion, but also added one of his own.

At issue was the meaning of Government Code §6253.9(b)(2) which authorize a charge where a Public Records Act (“PRA”) request “would require data compilation, extraction, or programming to produce the record.”

Jenkins’s View

Div. Three of the First District Court of Appeal on Sept. 28, 2018, said in an opinion by then-Justice Martin Jenkins that the legislative history of the section reveals “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.”

Jenkins (now the governor’s judicial appointments secretary) continued:

“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.”

He concluded that the City of Hayward was therefore justified in charging the National Lawyers Guild, San Francisco Bay Area Chapter $2,939.58 “to produce a copy of the police body camera video recordings, including the cost of extracting exempt material from these video recordings with the aid of special computer programming.”

The guild sought the recordings to analyze the conduct of Hayward police in assisting the City of Berkeley in policing demonstrations in protest to decisions of two grand juries—one in New York and one in Missouri—not to indict police officers in the unrelated shootings of two unarmed African American men. It sued in Alameda Superior Court to recoup the money it had paid for the first batch of records and to avoid a $308.89 bill for the second batch.

Judge Evilio M. Grillo granted a writ of mandate; the Court of Appeal reversed; Kruger said yesterday that Grillo was right.

Supreme Court Decision

She wrote:

“In the field of computing, the term ‘data extraction’ does encompass a process of taking data out, but it is generally used to refer to a process of retrieving required or necessary data for a particular use, rather than omitting or deleting unwanted data. One computing dictionary, for example, defines the term ‘extract’ as meaning ‘to remove required data or information from a database.’…Other technical sources define extraction similarly to mean retrieving data for further processing, analysis, or storage, as opposed to simply removing unwanted data.”

Kruger said the guild’s interpretation “aligns with this more technical usage of the term ‘extraction.’ ” She added that where the PRA has referred to redactions, it has used the term “deletion.”

Practical Consideration

The jurist commented:

“As a practical matter, reading section 6253.9(b)(2) to cover the costs of redacting electronic records would create peculiar distinctions between paper records and electronic ones. It would mean, for example, that an agency could charge for the time spent redacting an electronic version of a document even though it could not charge for time spent redacting a hard copy of the very same document….Given that section 6253.9 was enacted in large part to provide a less expensive alternative to paper production, an interpretation that would allow agencies routinely to charge requesters more for the electronic version seems unlikely.”

The opinion leaves open the question of just how the city is allowed to charge the guild for the electronic records. Kruger noted:

“Hayward raises one final argument to justify at least some of its charged costs: It argues that [Technology Manager Nathaniel] Roush performed ‘data compilation,’ as the term is used in section 6253.9(b)(2), when he searched for, located, and collected the responsive videos from Neither the trial court nor the Court of Appeal addressed this argument, and we decline to address it in the first instance. We thus leave this argument, and any related forfeiture issues, for consideration on remand.”

Cuéllar said in his concurring opinion:

“Imagine a not-so-distant future when government entities deploy more thoroughly automated, artificially intelligent systems for responding to PRA requests. Such systems would likely weave into a nearly seamless quilt––either because of the software’s design and functionality, or because of how the relevant data were classified—the search of government databases for responsive records, their extraction from the databases, and the editing of portions of the data exempt from disclosure.”

He remarked that advances in technology will “merit nuanced application of statutory provisions such as the one at issue here.”

Cuéllar added:

“Our interpretation and application of terms such as ‘extraction’ should avoid, to the extent possible, making pivotal distinctions based on subtle technical details of the digital architecture used by government agencies. We should instead seek to advance the interplay of legislative purpose underlying the statutory scheme.… Our decision today is in that vein: It prudently recognizes that, in this particular context, Hayward may not shift its costs to records requesters for the time its employees spent redacting exempt material from digital body camera footage. Yet it continues to give leeway for government agencies to depend less on having employees cobble together edited reels of material, and more on making thoughtful choices about how best to navigate the full range of considerations relevant to making public records retrieval in the digital age as responsive and effective as possible.”

The case is National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward, 2020 S.O.S. 2394.


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