The California Supreme Court recently issued a ruling on the seemingly mundane issue of whether public agencies may charge Public Records Act (PRA) requesters for the costs of redacting exempt material from electronic records when responding to PRA requests. Although the decision clarifies that agencies must bear the cost of redacting exempt material from both paper and electronic records, it does not offer a bright line rule for a secondary, but crucial, issue in the case: What agency processes do, and do not, qualify as "data extraction," the costs of which agencies may permissibly shift to requesters? The opinion does provide some "guideposts," but does not offer entirely easy answers for public agencies trying to determine what—or whether-they may charge requesters when responding to electronic PRA requests.

The Public Records Act

The California Public Records Act requires requesters to pay agencies for the "direct" duplication costs for the production of paper records-namely "the cost of running a copy machine, and conceivably the cost of the person operating it." However, agencies must bear "ancillary" costs, including staff time for searching records and identifying and redacting exempt information.

In 2000, the Legislature amended the PRA, introducing rules specific to the production of electronic records. The amendments did not change the ordinary rule; requesters must still pay the direct duplication costs of producing electronic records (limited to the direct cost of producing the record in electronic format). However, the amendments shifted the cost for production of electronic records to the requester where the request requires "data compilation, extraction, or programming to produce the record."

In National Lawyers Guild v. City of Hayward, issued by the California Supreme Court on May 28, 2020, the court considered the narrow question of whether the term "extraction" includes the process of redacting exempt material from electronic records. The court concluded that "extraction" does not include redaction. Amici for the Petitioner included the ACLU of Northern California, Lawyers' Committee for Civil Rights, Reporters Committee for Freedom of the Press, and California News Publishers Association. Amici for the Respondent included the League of California Cities and California State Association of Counties.

The Facts

In 2014, the Hayward Police Department assisted the City of Berkeley in policing protests. Plaintiff National Lawyers Guild later submitted a PRA request to the Department, seeking records related to the Department's actions in policing the protests. The Department's Custodian of Records (COR) suspected certain videos from body cameras worn by officers policing the demonstrations were responsive. The City's IT department, using criteria provided by the COR, identified 141 videos, totaling approximately 90 hours. A cursory review of the videos revealed they contained exempt material. Recognizing that editing 90 hours of video would be extremely burdensome, the City asked NLG to narrow its request. In response, NLG requested six hours of video.