On Tuesday, March 3, 2020, the California Supreme Court will hear oral arguments in National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward (Case No. S252445) The issue in the case is whether public agencies can charge the public for the cost of redacting electronic records under the California Public Records Act (“CPRA”). The case may have sweeping impacts on government transparency in California. Public agencies hold a wide array of records in electronic form – from the body camera videos at issue in this case, to emails, to database information. The Court’s decision may determine whether public agencies can charge fees that may make public access to those records prohibitively expensive for many people.

In January 2015, NLGSF requested records from the Hayward police department related to its activities at a December 2014 Black Lives Matter demonstration in Berkeley, when Hayward officers shot a Black demonstrator with “less lethal” munitions. Hayward eventually turned over the body cam videos, which revealed HPD officers shooting at peaceful protesters while making remarks such as, “They are f—-ing animals”; “I got it up right now ready to go mother—-ers” and “Get a shot in his f—-ing ass”. To obtain the videos, however, Hayward charged NLGSF $2,929.58 for the cost of editing the videos to redact supposed protected information.

The CPRA does not generally allow agencies to charge a fee to redact records, but Hayward argued that Cal. Gov. Code § 6253.9 did permit it to charge fees this for electronic records where “data compilation, extraction, or programming” was required. NLGSF, with the aid of the ACLU and attorney Amitai Schwartz, challenged the fees in the Superior Court and prevailed.

Hayward appealed the Alameda County Superior Court decision. In National Lawyers Guild v. City of Hayward, 27 Cal.App.5th 937 (2018), the Court of Appeal found that, while an agency cannot charge to redact paper records, § 6253.9 does allow an agency to charge a requestor for its redaction of electronic records in some circumstances.

NLGSF took its fight to the California Supreme Court, which granted review. The outcome may be significant far beyond whether agencies can charge fees to redact body camera footage. In the wake of the appellate decision, agencies across the state claimed the right to withhold public emails and other electronic records unless requestors could pay hundreds or thousands of dollars in redaction fees.

Oral arguments in the case will be heard on March 3, 2020, at the California Supreme Court in San Francisco. Amicus briefs supporting NLGSF have been filed by organizations including the Reporters Committee for Freedom of the Press, the Associated Press, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, Legal Aid of Los Angeles, and the First Amendment Coalition.

Abenicio Cisneros is an attorney whose practice focuses on the California Public Records Act. acisneros@CApublicrecordslaw.com; @CPRAlawyer.