Legal Alerts May 29, 2020

California Supreme Court: Government Cannot Charge Fee to Redact Police Body Camera Footage

California Public Records Act Provision Permitting Public Agencies to Charge for “Extraction” Analyzed

California Supreme Court: Government Cannot Charge Fee to Redact Police Body Camera Footage

Government agencies are prohibited from charging a fee to redact police body camera footage in response to a California Public Records Act request, the California Supreme Court said in a highly anticipated decision issued Thursday.
 
In National Lawyers Guild v. City of Hayward, the City charged the Guild more than $3,000 to redact medical and police tactic information from body camera footage. The footage was taken during a protest over grand jury decisions to not indict the police officers involved in the deaths of Eric Garner and Michael Brown, both unarmed African-American men. The Guild submitted a CPRA request for records related to the protest and, when they were assessed with the fee, they sued. The City said the fee was the result of about 40 hours of editing and was permitted under Government Code section 6253.9 in the CPRA, which allows local agencies to charge for “data compilation, extraction, or programming.”
 
The trial court sided with the Guild, but the Third District Court of Appeal agreed with the City. The California Supreme Court reversed and analyzed the word “extraction” as used in Section 6253.9. The City argued that it needed to “extract data” from the video footage when it made redactions – taking out certain audio and visual material that were privileged information. The Guild responded that “extraction” meant creating new content and not applying redactions.
 
The Court agreed with the Guild and reaffirmed that local agencies may only charge the costs of duplicating records and not other ancillary costs, such as document retrieval, inspection and handling of the files. The Court considered the City’s video editing as merely a more sophisticated version of redactions done with a felt marker on paper.
 
The opinion considered the nature of electronic records and the frequently burdensome task of redacting body camera footage requested under the CPRA. The Court stated, “Redacting exempt footage can be time-consuming and costly. But Section 6253.9(b)(2)…covers every type of electronic record. Whether the unique burdens associated with producing body camera footage warrant special funding mechanisms is a question only the Legislature can decide.”
 
BB&K’s ARC: Advanced Records Center is a rapid response team trained in electronic records that assists local agencies with these types of request. For more information about this decision or how it may impact your agency, please contact the authors of this Legal Alert in BB&K’s ARC: Advanced Records Center or your BB&K attorney.
 
Register for a Free BB&K Webinar: June 4
A Review of National Lawyers Guild v. City of Hayward's Impact on the California Public Records Act and Video Records
 
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts, facts specific to your situation or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information herein. 

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