In an important victory for government transparency, the California Supreme Court has strictly limited the costs that public agencies can demand from members of the public and the media who request public records in an electronic format.
The Court's May 28 opinion in National Lawyers Guild v. City of Hayward, lifts a daunting financial barrier that had discouraged requests for public records like police videos, electronic databases, and public officials' emails, all of which the news media routinely use in reporting on state and local government—and which watchdog groups and individual citizens rely on to hold government accountable.
The unanimous decision also strongly reiterates the pro-disclosure purpose of the California Public Records Act (CPRA), and the constitutional mandate that the law must be construed broadly to promote public access.
The Hayward case began when the National Lawyers Guild, San Francisco Bay Area Chapter (NLG) requested records related to how police handled Bay Area protests in 2014 over several high-profile national incidents in which unarmed African-Americans were killed by police. The City of Hayward produced six hours of video from police body-worn cameras, and charged NLG nearly $3,000 for the time that city staffers spent editing the footage to redact material the City claimed was exempt from disclosure.
The CPRA always has made clear that members of the public must be allowed to inspect public records free of charge. Since 1981, the law has provided that when agencies produce copies of records, they can only charge requesters the "direct costs of duplication, or a statutory fee if applicable."1 Courts have explained that "the 'direct cost of duplication' is the cost of running the copy machine, and conceivably also the expense of the person operating it," and it "does not include the ancillary tasks necessarily associated with the retrieval, inspection, and handling of the file from which the copy is extracted."2
City of Hayward Attempts to Expand Cost-Shifting Exemptions in CPRA
In 2000, the California Legislature passed Assembly Bill 2799 (AB 2799), which requires agencies to produce electronic public records in their original format. As amended, the CPRA continues to limit agencies to charging requesters the "direct cost of producing a copy of a record in an electronic format."3
However, the law includes limited exceptions in which some cost-shifting is permissible, including when the "request would require data compilation, extraction, or programming to produce the record."4 As a consequence, newspapers—which were facing increasing economic pressures already—avoided making requests for electronic records, or scaled back such requests, constraining their ability to conduct the type of data-intensive journalism that has become a hallmark of modern investigative reporting.
The City of Hayward relied on that exception to seek its costs for redacting the police videos requested by NLG. The First Appellate District agreed in a 2018 decision, holding that the 2000 amendment created different rules for paper and electronic records, which allow agencies to make requesters pay for redacting material in an electronic format. In the wake of the intermediate appellate court's decision, public agencies increasingly sought to force requesters to pay significant fees for redacting a wide range of public records, including emails.
DWT Files Amici Briefs in Appeal to California Supreme Court
The California Supreme Court granted review to resolve the matter on appeal. Davis Wright Tremaine submitted an amici brief on behalf of two original supporters of AB 2799, the California News Publishers Association (CNPA) and the First Amendment Coalition (FAC), who were uniquely positioned to explain the law's history and purpose. They explained that CNPA sponsored the bill because its news media members were encountering frustrating hurdles when requesting public records.
Before the 2000 amendment, the amici brief explained, California was one of the very few states that allowed government agencies to unilaterally decide how to produce information stored electronically in response to public records requests. Left to their own discretion, agencies routinely would print out hard copies of information in databases, charging journalists and other requesters exorbitant copying fees for information that could have been easily and cheaply transferred onto a computer disk or sent by email.
The CNPA and FAC amici brief further explained that AB 2799 was designed to remedy this problem by ensuring that members of the public could access electronically-stored records without facing prohibitive costs. Consequently, it left intact the well-settled principle that public agencies are responsible for the cost of redacting information they deem to be exempt from public disclosure under the CPRA.
The amici brief also argued that the exception that came to be codified in Section 6253.9(b)(2) was meant to allow agencies to recover certain limited technical costs arising from new obligations imposed by the amendment–for example, if a computer program had to be written or purchased to provide copies of electronically-stored records. It was not intended to change any pre-existing cost obligations, such as the cost of redacting records to segregate portions deemed exempt from public disclosure.
The Court's Decision
The California Supreme Court agreed, in a unanimous opinion authored by Justice Leondra Kruger. After a comprehensive review of the statute's text, structure, and history, the Court concluded that in allowing agencies to recover certain "extraction" costs, the law was "designed to cover retrieving responsive data from an unproducible government database–for example, pulling demographic data for all state agency employees from a human resources database and producing the relevant data in a spreadsheet."
However, the "term 'extraction' does not cover every process that might be colloquially described as 'taking information out.' It does not, for example, cover time spent searching for responsive records in an e-mail inbox or a computer's documents folder." And, the Court added, "[j]ust 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."
Importantly, the Court also relied on Article I, Section 3(b) of the California Constitution, a constitutional provision enacted by the state's voters in 2004 that requires that any statute, rule, and other legal authority "shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access."
While some of California's courts have paid lip service to the provision but failed to treat it as a controlling interpretive mandate, the Court reiterated that it is a "constitutional directive" that confirms the conclusion "that redaction costs are not chargeable as costs of data extraction." The Court recognized that allowing agencies to shift redaction costs to the public "could well prove prohibitively expensive for some requesters, barring them from accessing records altogether."