Supreme Court clarifies when public agencies can recover CPRA costs
On May 28, 2020, in a case in which CSBA’s Education Legal Alliance filed a friend-of-the-court brief, the California Supreme Court reversed the Court of Appeal’s decision in National Lawyers Guild v. City of Hayward, holding that an agency’s cost of redacting exempt information from electronic records is not recoverable under the California Public Records Act. The Court of Appeal had previously held that the City of Hayward could recover its costs for redacting exempt body camera footage from electronic records in response to a CPRA request. The Court’s decision provides some additional clarity for public agencies that they cannot recover costs associated with searching for documents or redacting exempt information from electronic records.
Recovering costs under the CPRA
The CPRA requires public agencies to provide members of the public with access to records related to agency business that are prepared, owned, used or retained by the agency. (Gov. Code, § 6250 et seq.) The rules implementing the CPRA are to be “broadly construed if [they] further the people’s right of access.” (Cal. Const, art. I, § 3, subd. (b)(2).)

Generally, a person requesting a copy of a public agency record under the CPRA only has to pay for the costs of duplicating the record, and not other costs to the agency such as redacting exempt material. In other words, the requester must pay for the cost of running the copy machine and expense of the person operating it, but the public agency bears the cost of the staff time involved in searching for the relevant records, reviewing the records and deleting exempt information.

At issue in this case was a provision specific to electronic records under Government Code section 6253.9(b)(2), which states that in addition to paying for duplication costs, requesters must pay for the costs of producing copies of electronic records if producing the copies “would require data compilation, extraction, or programming.” The City of Hayward charged the record requester for approximately 40 hours of its employees’ time used to edit out exempt material from police body camera footage. The City of Hayward claimed these costs were recoverable as the cost of “data extraction” under section 6253.9(b)(2).

The burden on local educational agencies
School districts and county offices of education can incur significant costs in responding to CPRA requests and in redacting student and personnel information in various formats to respond the requests. Before providing access to requested records, districts need to locate and collect records, determine which records are responsive, determine whether any portions of responsive records are exempt from disclosure, convert the records into a reviewable format, and, if requested, create a copy of the record.

While this case did not involve a school district, CSBA’s ELA filed an amicus brief to support the City’s argument that Government Code section 6253.9 should allow for cost sharing between requester and responding agency where production of an electronic record requires data compilation, extraction or programming, and to highlight for the Court the unique burden faced by education agencies in complying with the CPRA while also protecting student records and information as required by federal and state law. The ELA’s amicus brief also aimed in part to push the Court to narrow its ruling and take into account the continued burden the CPRA can place on public agencies.

The Supreme Court’s decision
The Court found that the term “data extraction” under the CPRA does not cover the process of redacting exempt material from otherwise disclosable electronic records. The Court wrote that redacting exempt material from electronic records is “deletion” rather than “extraction,” and should be treated the same as deleting exempt material from paper records — that is, the cost of deleting exempt material should be borne by the agency, not the requester. The Court noted that the legislative history of section 6253.9 indicates that the term “extraction” is meant to cover retrieving responsive data from a government database, such as pulling demographic data for state agency employees from a human resources database and producing the relevant data in a spreadsheet, but that “extraction” is not meant to cover every process of “taking information out.” The Court wrote that these redaction costs are often nontrivial, and can be burdensome on public agencies, but that the Constitution favors interpreting the CPRA to avoid passing such substantial costs to requesters and creating financial barriers to accessing public records.
piles of yellow folders
As the Court pointed out, public agencies have some protection from responding to overly burdensome requests without adequate funding through provisions in the Government Code. For example, section 6255(a), which allows agencies to withhold records if “the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record,” can encompass requests that place undue burdens on an agency.

School districts and county offices of education may face additional requests for audio or visual records after the Court’s decision, as the Court has made clear that public agencies will bear the cost of redacting electronic or audio-visual records as they would redacting paper records. Districts and county offices should continue to look to methods other than cost recovery to limit the financial impact of CPRA requests, including working with the requesters to narrow the scope of the records requested.

Please note that the information provided here by CSBA is for informational purposes and is not legal advice. Please contact your legal counsel for questions related to this information.