A recent California Supreme Court decision has ruled that government agencies in the state can’t pass on the costs of privacy redactions in the course of fulfilling records requests. According to the ruling, the cost of redacting records that citizens file under the California Public Records Act (CPRA) falls on the state, and the state is funded by taxes. It’s a tiny bit of good news to come out of the last week that has seen nationwide protests, mass arrests, and police brutality. In other words, we’re living in a moment that’s going to generate a lot of records requests.
California bill SB-1421, which is part of the CPRA, went into effect in January 2019. It states that public records pertaining to police brutality were no longer confidential, i.e. incidents or crimes in which police discharge a firearm at a person, use of force that results in severe injury or death, sexual assault, or multiple findings of police dishonesty the requester could release publicly. However, such information needs to be redacted to conceal any personally identifying information not pertinent to the incident or crime.
But what law enforcement agencies often do is charge a redaction fee to the person or agency requesting that information under the CPRA before they receive it. Their argument is that pulling records and using resources to redact information from documents and videos takes time and resources, which it does, but sometimes these fees can be in excess of thousands of dollars, and not everyone has that kind of money.
In the case, National Lawyers Guild vs. Hayward, civil rights groups filed a request for bodycam footage related to the UC Berkeley protests following the deaths of Eric Garner and Michael Brown with the City of Hayward. While Hayward police said they would release the footage, the agency asserted that it would cost the NLG $3,000 to redact any personally identifying information before it could be released. “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,” it says in the opening paragraph of the case document. However, the court ruled that the term “data extraction” does not “cover the process of redacting exempt material from otherwise disclosable electronic records.” After all, the court concluded, “agencies cannot recover the costs of searching through a filing cabinet for paper records.”
What this ruling does is give those requesting public information pertaining to police brutality more power to tell police agencies to eat the cost of redacting information themselves. The EFF offers some good advice to those who want to request public information and not be on the hook for paying redaction fees. When requesting documents or bodycam footage, requesters should consider including the following in their letters:
“Pursuant to NLG vs. Hayward, S252445 (May 28, 2020), government agencies may not charge requesters for the cost of redacting or editing body-worn camera footage.”
Or:
“Pursuant to NLG vs. Hayward, S252445 (May 28, 2020), government agencies may not charge requesters for the cost of redacting digital records.”
The EFF also notes that requesters should be prepared to push back on any agency that still tries to charge them a redaction fee, especially if that fee is an exorbitant amount.
There are specific circumstances in which agencies can charge people to redact information, but thanks to the new ruling, those circumstances are way more narrow. Agencies could still charge requesters when pulling information from a large database, but extracting records from a digital or physical database does not cover the time spent looking for those records. It’s also important to note that agencies can still charge requesters for copies of said records, though they can’t charge more than what the copied media is written to in the case of digital records.