In a victory for transparency advocates, the California Supreme Court held in a decision this week that public agencies cannot charge requesters for the redaction of electronic public records like police body camera footage. 

SPJ NorCal submitted a brief in the case, arguing that such fees discriminate against freelancers and individuals without significant institutional backing. The case is National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward.

Christine Peek, co-chair of SPJ NorCal’s Freedom of Information Committee, praised the state Supreme Court’s ruling.  She is a partner at San Jose-based law firm McManis Faulkner, and drafted the amicus brief with associate Christopher Rosario. 

“This opinion is a tremendous win for transparency, which recognizes that higher costs do burden the fundamental right of access,” Peek says. “This decision also upholds California’s constitutional mandate to interpret the law broadly where it furthers the right of access — and narrowly where it restricts that right.”  

The Lawyers Guild made a request to the city of Hayward under the California Public Records Act (“CPRA”) for police body camera footage from a 2014 Black Lives Matter protest in Berkeley.  (Hayward police had joined their Berkeley counterparts to police the demonstrations.)  Hayward contended the body camera footage contained material that was exempt from the records act, and demanded the Lawyers Guild pay upwards of $3000 for its redaction of the footage. The Lawyers Guild paid under protest, and then sued the city for a refund.

The parties disputed whether Hayward could charge for staff time spent redacting the body camera footage. The case turned on the interpretation of California Government Code section 6253.9(b)(2), which spells out cost provisions that apply only to electronic records. The law allows agencies to charge requesters more than the direct cost of duplication if “data compilation, extraction, or programming” is required to produce the record.  In 2016, the trial court ruled in favor of the Lawyers Guild, holding that the phrase, “data compilation, extraction, or programming,” did not include creating a redacted version of an existing record.  The First District Court of Appeal reversed that ruling in a published opinion, holding that redacting the footage qualified as an “extraction” of data, and thus could be charged for.

SPJ NorCal joined the Pacific Media Workers Guild as amici, or friends of the court, first advocating by letter for the California Supreme Court to accept review of the case. The two organizations also argued in a “friend of the court” brief that steep fees would have a devastating effect on freelancers, journalists at small or nonprofit media, and student reporters, who typically lack the financial resources of larger media organizations.

As stated in the brief: “If the Court of Appeal’s opinion stands, public agencies may effectively deny access to an increasing number of public records by simply pricing journalists with fewer financial resources out of the marketplace of ideas.  Agencies can more easily block access to information they deem sensitive, by demanding exorbitant fees for information they in their sole discretion decide is exempt and must be redacted.”

In its decision this week, the California Supreme Court recognized that high fees may create an insurmountable barrier to requesting government records. “Redaction costs could well prove prohibitively expensive for some requesters, barring them from accessing records altogether[,]” the Court wrote. The decision applies to public agencies throughout the state, but not to the judicial system or legislature.

SPJ NorCal Freedom of Information Committee co-chair Lauren Smiley says she is heartened that fees will no longer be a barrier to getting records from government agencies in California. “For freelancers like me, early reporting on a story often happens without an official assignment from an outlet, and freelancers need to initially pay these fees out of their own pockets,” she says. “In short, steep fees can be prohibitive to pursuing ambitious journalism. The California Supreme Court has ruled in favor of getting the truth, free of exorbitant charge.” 

Read the full opinion here

Read SPJ NorCal’s amicus brief here.

CONTACT: spjnorcalfoi@gmail.com