Agencies Bear Costs of Redacting Electronic Records, But Questions Remain in Recent PRA Decision

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 provides some “guideposts,” but it does not offer 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 “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 to introduce 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. However, the amendments shifted the cost to produce 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, and therefore agencies must bear the cost of redacting electronic records.

The Facts

In 2014, the Hayward Police Department assisted the City of Berkeley in policing protests. Plaintiff National Lawyers Guild (NLG) later submitted a PRA request to the Department to obtain records related to the Department’s involvement at 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 of Hayward’s IT department identified 141 responsive 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.

The COR then edited out exempt material from the six hours of video. This process involved a number of technical steps, and it took 35.3 hours. The NLG later requested additional footage, for which the COR used the same editing process.

Between the two requests, the City charged NLG over $3000, which included the cost of the time spent editing and searching for responsive video. The City contended the editing process constituted “data extraction,” the cost of which could appropriately be shifted to NLG.

The Court’s Analysis

The City argued that “extraction” ordinarily means “taking something out,” and therefore includes the process of redacting exempt material from a responsive record. By contrast, the NLG pushed for a narrow interpretation, arguing that “extraction” is limited to “retrieving responsive information from a government repository in order to produce the responsive information in a newly constructed record.” The Court recognized that common dictionary definitions of “extraction” supported both parties’ interpretations. However, finding that the provision in question is “technical,” the Court deferred to technical definitions of “extraction,” such as those found in computing dictionaries. NLG’s narrow interpretation aligned with technical definitions, which refer to “a process of retrieving required or necessary data for a particular use, rather than omitting or deleting unwanted data.”

Similarly, the Court found that the legislative history of the 2000 amendments reflected the Legislature’s concerns about “the difficulties associated with retrieving responsive data from massive, potentially intractable databases,” but did not indicate that the Legislature intended “extraction” to cover the cost of redacting electronic records. Relatedly, the Court pointed out that the City’s broad interpretation of “extraction” would create an unsupportable distinction between paper and electronic records.

Finally, the Court considered article I, section 3, subdivision (b)(2) of the California Constitution, which requires a statute to be broadly construed if it furthers the people’s right of access to information concerning the conduct of the people’s business. Because redaction costs “are often nontrivial”—as evidenced here, where the cost of redaction exceeded $3000—allowing agencies to shift the costs of redacting electronic records could “erect[] … substantial financial barriers to access.”

Practical Implications

What is Extraction, Exactly? 

The Court acknowledged it could not “comprehensively catalog” the types of processes that will or will not qualify as “extraction.” The “paradigmatic example” is when “the government agency is required to pull certain data from a large database in order to construct a record that can be disclosed to the requester.” However, “extraction” does not include “every process that might be colloquially described as ‘taking information out,’” including time spent searching for responsive records in an e-mail inbox or computer’s documents folder.

In this case, the City implicitly conceded that its IT department did not perform data extraction when it performed the initial search for responsive videos. Indeed, the Court likened this task to “searching a filing cabinet for responsive paper records.” And the Court held that the COR’s video-editing process constituted redaction rather than extraction, as it “was not substantively different from using an electronic tool to draw black boxes over exempt material contained in a document in electronic format.”

The Court’s definition of data extraction seems to require the construction of a new record, e.g., a new spreadsheet that is created after requested data are extracted from an existing database. This may be a clear distinction in some cases, but it could be more subtle in others. Here, the Court found the COR did not extract data in order to produce new videos, but instead merely deleted exempt data from existing videos. However, based on the Court’s description of the COR’s process, the COR did not simply edit the existing videos, but spliced material from those videos in order to create new files. This tension in the Court’s analysis points to the difficulty in determining what is, and isn’t, extraction, and demonstrates that creation of a “new” record is not necessarily sufficient. 

One takeaway is that public agencies will need to continually consider whether their processes to gather electronic records and data are extractive. Likewise, unless an agency’s process clearly matches the paradigmatic example provided in National Lawyers Guild, the agency should expect that requesters may challenge charges imposed for data extraction. Finally, public agencies should carefully consider potential PRA-related ramifications when evaluating whether and how to use new technologies that generate public records. 

Overly Burdensome Requests

The Court acknowledged that agencies might not have adequate funding to redact overly burdensome PRA requests. However, it pointed to provisions of the PRA that already address this problem. To the extent responding to requests for body camera footage “present[s] unique concerns for government agencies with limited resources,” the Court held that only the Legislature can decide whether these unique burdens warrant special treatment.

For more information on National Lawyers Guild v. City of Hayward, please contact Sarah Lucey.

Reprinted with permission from the June 4, 2020 edition of “The Recorder” © 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.