In an opinion that stands to help budget-constrained journalists and news outlets stay competitive, the California Supreme Court has declared that public agencies must bear the cost of redacting electronic records that members of the public request.
The Pacific Media Workers Guild (the Guild) and the Society of Professional Journalists’ Northern California chapter can claim some of the credit for this pro-sunshine victory. They submitted an amicus brief arguing that the city of Hayward had violated the state Public Records Act by charging the National Lawyers Guild’s San Francisco Bay Area chapter (NLGSF) more than $2,300 for retrieving and redacting police body-camera video footage (National Lawyers Guild, San Francisco Bay Area Chapter vs. City of Hayward et al., SCOCA case number S252445).
Also, a big thanks to attorney Christine Peek, who crafted and submitted the request seeking amicus standing for the Guild and SPJ NorCal, and then the amicus brief, all pro bono. Peek is with the McManis Faulkner law firm in San Jose and, along with journalist Lauren Smiley, co-chairs SPJ NorCal’s Freedom of Information Committee.
In the unanimous opinion, written by Justice Leondra R. Kruger and issued on May 28, the court said the Public Records Act allows public agencies to charge for “producing copies of electronic records if doing so ‘would require data compilation, extraction, or programming,’” but “‘data extraction’ does not cover the process of redacting exempt material from otherwise disclosable electronic records” and the city must therefore “bear its own redaction costs.”
Kruger wrote in part: “As a general rule, a person who requests a copy of a government record under the (Public Records) act must pay only the costs of duplicating the record, and not other ancillary costs, such as the costs of redacting material that is statutorily exempt from public disclosure. But a special costs provision specific to electronic records, Government Code section 6253.9, subdivision (b)(2), says that in addition to paying for duplication costs, requesters must pay for the costs of producing copies of electronic records if producing the copies ‘would require data compilation, extraction, or programming.’ Here, the City of Hayward seeks to charge a records requester for approximately 40 hours its employees spent editing out exempt material from digital police body camera footage. The City claims that these costs are chargeable as costs of data extraction under section 6253.9, subdivision (b)(2). We conclude the term “data extraction” does not cover the process of redacting exempt material from otherwise disclosable electronic records. The usual rule therefore applies, and the City must bear its own redaction costs.”
Chair, Guild Legislative and Political Committee