California Supreme Court Issues Decision in Public Records Case; McManis Faulkner Submitted Amicus Brief Supporting Petitioner

In a precedent-setting decision, the California Supreme Court held that cities may not force public records requesters to pay the costs of redacting government records that are stored in electronic format, including digital video footage shot on police body cameras. McManis Faulkner submitted an amicus brief on behalf of the Northern California Chapter of the Society of Professional Journalists and the Pacific Media Workers Guild (The News Guild-CWA Local 39521), in support of the records requester and petitioner, the National Lawyers Guild, San Francisco Bay Area Chapter (NLG). Amici argued that an opinion by the First District Court of Appeal threatened equitable access to electronic public records. On May 28, the California Supreme Court issued its decision in favor of NLG.

In National Lawyers Guild v. City of Hayward, the City of Hayward charged NLG $2,938.58 for copies of redacted police body camera footage of a protest in 2014, in response to NLG’s request under the California Public Records Act (CPRA). The City claimed the charge was for work by city employees to review and redact the video. The trial court ordered the City to refund the money, but the Court of Appeal upheld the charge. The Court of Appeal interpreted Government Code Section 6253.9(b)(2) to allow the City to charge costs over and above the direct cost of duplication when responding to requests for such electronic records.

Partner Christine Peek filed the amicus brief in 2019, arguing that the Court of Appeal’s interpretation of the CPRA threatened to cut off access to electronic public records for independent journalists and others who lack institutional funding, such as freelance writers, bloggers, and student journalists. The decision would also allow public agencies effectively to deny access to records that are not privileged and qualify for release, simply by demanding exorbitant fees.

In its decision, the California Supreme Court interpreted Government Code Section 6253.9(b)(2), and in particular, the term “data … extraction.” The Court agreed with NLG that “extraction” does not refer to redacting exempt information from a record. The Court found the statute’s legislative history offered little support for Hayward’s contrary view. “To the extent any doubt remains,” the Court wrote, California’s constitutional mandate to broadly construe a statute if it furthers the right of access “confirms our conclusion that redaction costs are not chargeable as costs of data extraction.” Accordingly, the Supreme Court reversed the Court of Appeal. 

“This is a tremendous win, not just for the National Lawyers Guild, our amici, and independent journalists, but also for the general public. The underlying decision was a significant blow to government transparency and would have created a barrier whereby only the wealthy can afford to use the CPRA to hold the government accountable,” said Peek. “Today’s decision upholds our constitutional right to access public records, and we are pleased with the California Supreme Court’s ruling.”

Christine Peek is an experienced advocate in public records cases, having successfully briefed petitioner’s case in City of San Jose v. Superior Court (2017) 2 Cal.5th 608, the unanimous decision of the Supreme Court holding that when public employees use a personal account to communicate about the conduct of public business, the writings may be subject to disclosure under the CPRA.  She is frequently consulted on issues arising under the CPRA.