As a general rule, one who requests government records under the California Public Records Act (CPRA) pays only duplication costs, not such other costs as those to withhold (“redact”) material exempt from disclosure. However, another CPRA provision specific to electronic records (Gov. Code § 6253.9(b)(2)) says requesters must pay for “data compilation, extraction, or programming.” Citing this provision, the City of Hayward charged a records requester a little over $3,200 for the hours its employees spent redacting non-disclosable material from police body camera footage, such as the faces of innocent bystanders to a protest at which Hayward police provided services.

In National Lawyers Guild v. City of Hayward (May 28, 2020, S252445), the California Supreme Court held public agencies must bear their own costs to redact electronic records before producing them on a CPRA request. The Court read “extraction” in the narrow sense of data extraction — “a process of retrieving required or necessary data for a particular use, rather than omitting or deleting unwanted data.”

However, while acknowledging the burden this holding places on public agencies, the Court suggested that burden will at least sometimes justify slower production of records: “Even if higher costs to the agency mean slower disclosure rates or greater inconvenience to the requester, these burdens on access are insignificant if the alternative is no access at all.” Conceivably these burdens might justify no production at all. Indeed, an agency need produce a record mixing disclosable with non-disclosable material under the CPRA if the non-disclosable material is “reasonably segregable” from the balance. An agency may also withhold records if the public interest in non-disclosure clearly outweighs the interest in disclosure, and this includes “requests that place undue burdens on an agency.” Hayward therefore anticipates agencies may deny requests for voluminous electronic records requiring laborious redactions unless the requester agrees to pare them down to a reasonable size.

Justice Cuéllar wrote an interesting concurrence noting that agencies may be able to recover the cost of software to allow records to be produced and that the public will benefit if agencies can. His comments suggest the problem known as “the tragedy of the commons” — those things we all enjoy for free tend to be “loved to death” as no one has incentive to provide the funding to maintain them.

Hayward is of concern to public agencies struggling with budgets during the COVID-19 pandemic while they continue to field voluminous requests for electronic public records, especially police body camera footage. Further developments in this area are likely.