Nat. Lawyers Guild etc. v. City of Hayward ( 2020 )

IN THE SUPREME COURT OF
CALIFORNIA
NATIONAL LAWYERS GUILD,
SAN FRANCISCO BAY AREA CHAPTER,
Plaintiff and Respondent,
v.
CITY OF HAYWARD et al.,
Defendants and Appellants.
S252445
First Appellate District, Division Three
A149328
Alameda County Superior Court
RG15785743
May 28, 2020
Justice Kruger authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,
Cuéllar, Groban concurred.
Justice Cuéllar filed a concurring opinion.
NATIONAL LAWYERS GUILD v. CITY OF HAYWARD
S252445
Opinion of the Court by Kruger, J.
This case concerns the costs provisions of the California
Public Records Act (Gov. Code, § 6250 et seq.). As a general rule,
a person who requests a copy of a government record under the
act must pay only the costs of duplicating the record, and not
other ancillary costs, such as the costs of redacting material that
is statutorily exempt from public disclosure. (Id., § 6253,
subd. (b); id., § 6253.9, subd. (a)(2); see County of Santa Clara v.
Superior Court (2009) 170 Cal.App.4th 1301, 1336 (County of
Santa Clara).) But a special costs provision specific to electronic
records, Government Code section 6253.9, subdivision (b)(2),
says 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.” Here, the City of Hayward seeks
to charge a records requester for approximately 40 hours its
employees spent editing out exempt material from digital police
body camera footage. The City claims that these costs are
chargeable as costs of data extraction under section 6253.9,
subdivision (b)(2). We conclude the term “data extraction” does
not cover the process of redacting exempt material from
otherwise disclosable electronic records. The usual rule
therefore applies, and the City must bear its own redaction
costs.
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Opinion of the Court by Kruger, J.
I.
A.
The California Public Records Act (PRA or Act) establishes
a right of public access to government records. “Modeled after
the federal Freedom of Information Act (5 U.S.C. § 552 et seq.),
the PRA was enacted for the purpose of increasing freedom of
information by giving members of the public access to records in
the possession of state and local agencies.” (Los Angeles County
Bd. of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 290.)
In enacting the statute in 1968, the Legislature declared this
right of access to be “a fundamental and necessary right of every
person in this state” (Gov. Code, § 6250)—a declaration ratified
by voters who amended the California Constitution in 2004 to
secure a “right of access to information concerning the conduct
of the people’s business” (Cal. Const., art. I, § 3, subd. (b)(1),
added by Prop. 59, Gen. Elec. (Nov. 2, 2004)). (See Los Angeles
County Bd. of Supervisors, at p. 290.)
The Legislature that enacted the PRA recognized that
increased access to government information can have both
intangible and tangible costs, and it crafted the PRA
accordingly. First, and most important, the Legislature
recognized that increased public access to government records
can come at the expense of personal privacy and other important
confidentiality interests. To mitigate these sorts of intangible
costs, the Legislature crafted “numerous exceptions to the
[PRA’s] requirement of public disclosure.” (International
Federation of Professional & Technical Engineers, Local 21,
AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 329, citing
Gov. Code, § 6254.) The PRA’s exemptions permit public
agencies to withhold a variety of records—or reasonably
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Opinion of the Court by Kruger, J.
segregable portions of records—to protect confidential
information. (Gov. Code, §§ 6253, subd. (a), 6254.) Many of
these exemptions “are designed to protect individual privacy”
(International Federation, at p. 329)—for example, the
exemption for “[p]ersonnel, medical, or similar files, the
disclosure of which would constitute an unwarranted invasion
of personal privacy” (Gov. Code, § 6254, subd. (c)). But the
exemptions are designed to protect other interests as well,
including, for example, the interest in law enforcement’s ability
to effectively perform its duties. (See id., § 6254, subd. (f)
[exempting “[r]ecords of complaints to, or investigations
conducted by, or records of intelligence information or security
procedures of . . . any state or local police agency”].)
At the same time, the Legislature also recognized that
increased public access to government information has costs of
the more tangible, dollars-and-cents variety. Before providing
access to requested records, public agencies 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. To
complete these tasks generally requires personnel time as well
as the use of office equipment and supplies—all of which comes
with a price tag. The PRA acknowledges as much and allocates
certain costs to the requester, while others must be borne by the
agency responding to the requests.
Precisely which costs may be allocated to the requester
depends on the format of the requested record. Since 2000, the
PRA has distinguished between nonelectronic records
(sometimes referred to as “paper records,” though the record
may be in another nonelectronic medium, such as audiotape)
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Opinion of the Court by Kruger, J.
and electronic records. Paper records are governed by a general
costs provision, enacted in its earliest form by the original
statute in 1968. (Gov. Code, former § 6257, added by Stats.
1968, ch. 1473, § 39, pp. 2947–2948.) Under that provision,
today codified in Government Code section 6253, subdivision (b),
a person requesting copies of a government record must pay
“fees covering direct costs of duplication, or a statutory fee if
applicable.” (Id., § 6253, subd. (b).) The reference to “direct
costs of duplication” has long been understood to cover “the ‘cost
of running the copy machine, and conceivably also the expense
of the person operating it’ while excluding any charge for ‘the
ancillary tasks necessarily associated with the retrieval,
inspection and handling of the file from which the copy is
extracted.’ ” (County of Santa Clara, supra, 170 Cal.App.4th at
p. 1336, quoting North County Parents Organization v.
Department of Education (1994) 23 Cal.App.4th 144, 148 (North
County).) Nonchargeable ancillary costs include “staff time
involved in searching the records, reviewing records for
information exempt from disclosure under law, and deleting
such exempt information.” (North County, at p. 146.)1 At least
with respect to nonelectronic records, then, requesters are
required to pay “direct” duplication costs, but they are not
required to pay the government agencies’ costs of redacting the
record.
1
The North County court interpreted the term “direct costs
of duplication” in Government Code former section 6257
(repealed by Stats. 1998, ch. 620, § 10, p. 4121). Government
Code section 6253, subdivision (b) replaced section 6257 and
uses substantially similar language. (Stats. 1998, ch. 620, § 5,
p. 4120 [enacting § 6253].)
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Before the statute was amended in 2000, there were no
special rules for records kept in electronic format. Agencies had
wide discretion to produce electronic records “in a form
determined by the agency”—that is, in any form the agency saw
fit. (Gov. Code, former § 6253, subd. (b), added by Stats. 1998,
ch. 620, § 5, p. 4120.) Exercising this discretion, many agencies
chose to print out their electronic records and produce them in
paper format. This approach allowed the agencies to recover the
direct costs of duplicating the paper copies, even though
producing duplicates of the records in an electronic format
would have been significantly cheaper. (See Sen. Com. on
Judiciary, Analysis of Assem. Bill No. 2799 (1999–2000 Reg.
Sess.) as amended June 22, 2000, p. 3.)
To account for differences in the costs of producing
electronic versus paper records, the 2000 amendment
introduced specific rules for the production of records held in
electronic format. (Stats. 2000, ch. 982, § 2, p. 7142; see Sen.
Com. on Judiciary, Analysis of Assem. Bill No. 2799 (1999–2000
Reg. Sess.) as amended June 22, 2000, pp. 3–4.) In newly added
Government Code section 6253.9 (section 6253.9), the
Legislature cabined agencies’ discretion by requiring them to
make nonexempt electronic records available in “any electronic
format in which [the agency] holds the information.” (§ 6253.9,
subd. (a)(1), added by Stats. 2000, ch. 982, § 2, p. 7142.) The
amendment also created cost shifting rules specific to the
production of copies of electronic records. (Stats. 2000, ch. 982,
§ 2, p. 7142.)
After the 2000 amendments, the ordinary rule is the same
for electronic records as paper records: Requesters must pay
direct duplication costs (although the statute now specifies that
in the case of electronic records, the “cost of duplication shall be
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Opinion of the Court by Kruger, J.
limited to the direct cost of producing a copy of a record in an
electronic format”). (§ 6253.9, subd. (a)(2).) But the statute
provides an exception specific to electronic records:
Notwithstanding the usual limitations on chargeable costs, “the
requester shall bear the cost of producing a copy of the record,
including the cost to construct a record, and the cost of
programming and computer services necessary to produce a
copy of the record” if one of two conditions applies. (Id., subd.
(b).) First, the requester must pay these additional costs if “the
public agency would be required to produce a copy of an
electronic record and the record is one that is produced only at
otherwise regularly scheduled intervals.” (Id., subd. (b)(1).)
Second, the requester must pay the costs if “[t]he request would
require data compilation, extraction, or programming to produce
the record.” (Id., subd. (b)(2).) This case concerns the latter
condition.
B.
In December 2014, demonstrations erupted in Berkeley,
protesting grand jury decisions not to indict the police officers
involved in the deaths of Eric Garner and Michael Brown, both
unarmed African-American men. The Hayward Police
Department provided mutual aid to the City of Berkeley in
policing the demonstrations. After the demonstrations were
over, plaintiff National Lawyers Guild, San Francisco Bay Area
Chapter (NLG) submitted a public records request to the
Department, seeking 11 categories of records relating to the
Department’s actions in policing the demonstrations. The
requested records included relevant communications made
during the demonstrations, operations and command center
logs, and various reports, as well as records identifying
supervisory and command officers who had approved certain
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police tactics used at the demonstrations and records relating to
the use of those tactics. Soon after, NLG submitted a followup
request for related records.
The Department’s Records Administrator and Custodian
of Records, Adam Perez, was responsible for identifying records
responsive to the requests. For both requests, Perez first
identified responsive text-based electronic records, such as
written reports, logs, operational plans, and e-mails. He
reviewed these documents for potential exemptions under the
PRA and redacted them accordingly. He then converted the
documents to portable document format (PDF), and they were e-
mailed to NLG. NLG was never charged the costs to produce
the copies of these text-based electronic records.
Perez next identified other types of electronic records
potentially responsive to NLG’s requests. Several Hayward
officers policing the demonstrations were equipped with body-
worn cameras. Though NLG had not explicitly requested videos
from these cameras, Perez believed certain videos might be
responsive. In the City of Hayward, police officers upload digital
video from their body-worn cameras to an online digital evidence
management system known as Evidence.com, which stores
videos and other digital evidence on the Internet. From
Evidence.com, videos can be downloaded in MP4 format to
DVDs for production, storage, or other uses. On average the
City collects more than 1,000 hours of body-worn camera video
per month.
Because Perez did not have access to Evidence.com, he
asked the City’s Information Technology Manager of Public
Safety, Nathaniel Roush, to search Evidence.com for videos
responsive to NLG’s requests. Perez provided Roush with 15
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search criteria, and Roush searched Evidence.com using these
criteria, identifying 141 videos totaling approximately 90 hours.
Roush quickly reviewed the videos, downloaded them to DVDs,
and confirmed they had successfully downloaded. This whole
process—searching, reviewing, downloading, and confirming
the download—took Roush 4.9 hours. Roush did not edit or
redact the videos. Roush then gave the DVDs to Perez.
Perez reviewed the videos to determine whether they
contained material exempt from disclosure under the PRA.
After a cursory review, he concluded they contained exempt
material, including personal medical information and law
enforcement tactical security measures.2 (See Gov. Code,
§ 6254, subds. (c), (f).) After researching the best means for
removing exempt audio and visual material from the videos,
Perez downloaded the free video-editing software Windows
Movie Maker. Perez quickly realized that editing 90 hours of
video would be unduly burdensome, so, through the City
Attorney’s Office (City Attorney), the Department asked NLG to
narrow its request. NLG complied, requesting six specific hours
of video from the demonstrations. Perez worked with Roush to
identify the six hours of video on Evidence.com and to download
the videos to DVDs. The City did not charge NLG for any of
Perez’s or Roush’s staff time completing these tasks.
With the narrower set of videos in hand, Perez began the
editing process. First, he identified the exact visual and audio
segments that were exempt. Next, he used Windows Movie
Maker to remove all exempt audio and visual material from the
video files. Before he could remove the exempt audio segments,
2
NLG does not challenge the City’s determination that
certain portions of the videos are exempt under the PRA.
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he had to separate the audio and visual material by taking out
all of the audio material from each MP4, saving that audio
material as an MP3, and reuploading the MP3 audio file into
Windows Movie Maker. Last, he saved the edited videos as new
MP4 files and downloaded them to a thumb drive storage device.
This editing process took Perez 35.3 hours.
The City Attorney then informed NLG that the videos
were available for pickup. But the City Attorney warned NLG
that before anyone could pick up the videos NLG would need to
pay the City’s costs to produce the videos. The City invoiced
NLG $2,938.583—$1 for the “DVD” (actually a thumb drive)
containing the edited video copies and the remainder for 40.2
hours of staff time spent preparing the videos for production,
consisting of 4.9 hours of Roush’s time and 35.3 hours of Perez’s
time, as detailed above. NLG paid the invoiced amount under
protest and received the videos.
Soon after, NLG requested additional footage from the
demonstrations. The City’s staff followed substantially the
same procedure outlined above to identify and edit the videos.4
The City invoiced NLG $308.89 for the $1 “DVD” and the staff
3
The record shows that the City invoiced NLG $2,938.55.
But the parties, the pleadings, and the trial court all state the
invoiced amount as $2,938.58, so for present purposes we will
also spot the parties the extra 3 cents.
4
Though Perez edited the second set of responsive videos,
the record indicates the videos were located in Evidence.com by
Chris Gomes, not by Roush. The record does not indicate
whether Gomes followed the same process as Roush in locating
the videos and whether his time was similarly billed. But
because none of the parties has raised the point, we will assume
there were no material differences in the handling of the second
set of videos.
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time to produce the videos. NLG again paid the amount under
protest, and the City produced the videos to NLG.
After requesting the second set of videos, but before
receiving them, NLG filed a petition for declaratory and
injunctive relief and writ of mandate against the City and
relevant City officials (collectively, Hayward). NLG sought a
refund of the money it had paid to receive the first set of videos
and a writ of mandate or injunction requiring immediate
production of the second set of videos without costs beyond those
necessary to copy the videos. Later, after paying for and
receiving the second set of videos, NLG moved for a peremptory
writ of mandate, arguing that Hayward’s charges were excessive
and seeking a refund of the money it had paid beyond the direct
costs of duplicating the videos. Hayward argued in response
that the invoiced costs were justified under the PRA because the
City’s staff had performed data extraction and compilation, as
allowed under section 6253.9, subdivision (b)(2) (section
6253.9(b)(2)).5
The trial court disagreed with Hayward, holding that “the
phrase ‘data compilation, extraction, or programming to produce
the record’ ” does not include “making a redacted version of an
existing public record.” Instead, this exception “applies only
5
Hayward also argued the costs were justified under
Government Code section 6255 (section 6255), the PRA’s
“catchall exemption.” (Id., subd. (a) [“The agency shall justify
withholding any record by demonstrating . . . that on the facts
of the particular case the public interest served by not disclosing
the record clearly outweighs the public interest served by
disclosure of the record.”].) The trial court disagreed, and
Hayward did not appeal that ruling. (National Lawyers Guild
v. City of Hayward (2018) 27 Cal.App.5th 937, 945, fn. 5
(National Lawyers Guild).)
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Opinion of the Court by Kruger, J.
when a []PRA request requires a public agency to produce a
record that does not exist without compiling data, extracting
data or information from [an] existing record, or programing a
computer or other electronic devise [sic] to retrieve the data.”
The trial court thus found that Hayward’s charges were
unjustified and granted the petition for writ of mandate,
directing Hayward to refund to NLG the charges for the City’s
staff time.
The Court of Appeal reversed, agreeing with Hayward
that section 6253.9(b)(2) entitled Hayward to recover its costs
for redacting the videos as an “extraction” of data necessary to
produce the record. (National Lawyers Guild, supra, 27
Cal.App.5th at p. 941.) Finding the meaning of the term
“extraction” to be ambiguous, the Court of Appeal relied on the
legislative history of section 6253.9(b)(2). The court explained
that before subdivision (b)(2) was added to the bill enacting
section 6253.9, several groups had opposed the bill on grounds
that it failed to address the costs of redacting electronic records;
after subdivision (b)(2) was added, most of the opposition was
withdrawn. The court concluded from this that “lawmakers
were . . . aware the cost of redacting exempt information from
electronic records would in many cases exceed the cost of
redacting such information from paper records,” and therefore
chose to make redaction costs recoverable under section
6253.9(b)(2). (National Lawyers Guild, at p. 951.) The court
thus held that Hayward could recover its costs to construct a
copy of the police body camera video recordings for disclosure
purposes, including the “costs to acquire and utilize special
computer programming (e.g., the Windows Movie Maker
software) to extract exempt material from otherwise disclosable
electronic public records.” (Ibid.) We granted review.
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II.
A.
The issue before us is one of statutory interpretation, so
we begin by looking to the statutory language. If the language
is clear in context, our work is at an end. If it is not clear, we
may consider other aids, including the statute’s legislative
history. (Sierra Club v. Superior Court (2013) 57 Cal.4th 157,
165–166 (Sierra Club).)
The PRA provides that public agencies may recover the
costs associated with producing a copy of an electronic record,
“including the cost to construct a record, and the cost of
programming and computer services necessary to produce a
copy of the record” (§ 6253.9, subd. (b)) when “[t]he request
would require data compilation, extraction, or programming to
produce the record” (§ 6253.9(b)(2)). The question here is what
the Legislature meant by the term “extraction.” The PRA does
not define the term. Hayward argues “extraction” ordinarily is
used to mean “taking something out,” a usage broad enough to
cover the act of redacting information from an electronic record
before that record is released to the requester. By contrast, NLG
argues the term “extraction” refers, in context, to a process of
retrieving responsive information from a government repository
in order to produce the responsive information in a newly
constructed record. On this narrower understanding, extraction
costs would include, for example, exporting responsive data from
a large government database into a spreadsheet in order to
produce the spreadsheet, but they would not include time spent
redacting personally identifiable or other confidential
information from the spreadsheet once constructed.
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As the Court of Appeal in this case observed, both views
find some support in common dictionary definitions of
“extraction.” The verb “extract” is commonly defined to mean
“to draw forth” or “to pull out (as something embedded or
otherwise firmly fixed) forcibly or with great effort.” (Webster’s
3d New Internat. Dict. (2002) p. 806 (Webster’s Third).) This
dictionary definition is capacious enough to encompass
Hayward’s broad interpretation as well as NLG’s narrower one.
(National Lawyers Guild, supra, 27 Cal.App.5th at pp. 947–
948.)6
But general-purpose dictionary definitions are not always
the most reliable guide to statutory meaning; sometimes context
suggests that the Legislature may have been using a term in a
more technical or specialized way. (See, e.g., Nelson v. Dean
(1946) 27 Cal.2d 873, 879.) Section 6253.9, subdivision (b)
(section 6253.9(b)) is, broadly speaking, a technical provision; it
allocates the costs of “programming and computer services” and
of similar processes required to produce copies of electronic
records. (Ibid.) The term “extraction” itself appears as the
middle item in a list of such technical processes, sandwiched
6
There are, of course, other common definitions for the word
“extract.” One such definition, particular to the manipulation of
text, is “to select (excerpts) and copy out or cite.” (Webster’s
Third, supra, at p. 806; see also American Heritage Dict. (4th ed.
2000) p. 629 [“[t]o derive or obtain (information, for example)
from a source”].) This definition, with its connotation of deriving
materials from a source, is more consistent with NLG’s
narrower interpretation of “extraction” as referring to a process
of selecting and pulling out responsive data from government
repositories to create a producible record. But we find these
common definitions less instructive than the more technical
usage of the term described below.
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between “data compilation” and “programming.”
(§ 6253.9(b)(2).) Given the evident technical focus of section
6253.9(b), it makes sense to consider the more technical usage
of the term.
In the field of computing, the term “data extraction” does
encompass a process of taking data out, but it is generally used
to refer to a process of retrieving required or necessary data for
a particular use, rather than omitting or deleting unwanted
data. One computing dictionary, for example, defines the term
“extract” as meaning “to remove required data or information
from a database.” (Collin, Dict. of Computing (4th ed. 2002)
p. 139, italics added; cf. id. at p. 310 [defining “retrieve” as “to
extract information from a file or storage device”].) Other
technical sources define extraction similarly to mean retrieving
data for further processing, analysis, or storage, as opposed to
simply removing unwanted data. (See, e.g., Neamtu et al., The
impact of Big Data on making evidence-based decisions, in
Frontiers in Data Science (Dehmer & Emmert-Streib edits.,
2018) p. 217 [defining “data extraction” as “[t]he act or process
of retrieving data out of (usually unstructured or poorly
structured) data sources for further data processing or data
storage”].) This more technical meaning is familiar in modern
parlance, as numerous judicial opinions attest. (E.g., People v.
Delgado (2018) 27 Cal.App.5th 1092, 1105 [using “data
extraction” to refer to retrieving information from criminal
defendant’s cell phone]; Vasquez v. California School of Culinary
Arts, Inc. (2014) 230 Cal.App.4th 35, 43 [“Under federal law, a
nonparty cannot avoid complying with a subpoena seeking
electronically stored information on the ground that it must
create new code to format and extract that information from its
existing systems.”].)
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NLG’s view aligns with this more technical usage of the
term “extraction,” as well as with the particular context in which
the term appears in section 6253.9(b)(2). Understood in this
more technical way, the term “extraction” conveys an idea
unique to the production of electronic records. It generally
refers to a particular technical process—a process of retrieving
data from government data stores—when this process is
“require[d]” (§ 6253.9(b)(2)) or “necessary to produce” a record
suitable for public release (§ 6253.9(b)).
The process to which Hayward refers, by contrast, is not
unique to the field of electronic records; redacting exempt
material is a process common to the production of virtually every
kind of public record, whether in paper or electronic format. The
PRA has long had a term for this process: “deletion.” (Gov.
Code, § 6253, subd. (a) [requiring public agencies to allow
inspection of “[a]ny reasonably segregable portion of a record . . .
after deletion of the portions that are exempted by law”].) The
Legislature’s decision to use “extraction” instead of “deletion”
when it enacted section 6253.9(b)(2) suggests an intent to
convey a different idea. (See Rashidi v. Moser (2014) 60 Cal.4th
718, 725 (Rashidi) [“ ‘Ordinarily, where the Legislature uses a
different word or phrase in one part of a statute than it does in
other sections or in a similar statute concerning a related
subject, it must be presumed that the Legislature intended a
different meaning.’ ”].)7
7
In fact, when the Legislature added the term “extraction”
to section 6253.9(b)(2), it did the same to section 6253, the
provision that provides for the “deletion” of exempt material.
(Gov. Code, § 6253.9, subd. (a).) Section 6253, subdivision (c)(4),
which was also added by the 2000 amendment, provides that the
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As a practical matter, reading section 6253.9(b)(2) to cover
the costs of redacting electronic records would create peculiar
distinctions between paper records and electronic ones. It would
mean, for example, that an agency could charge for the time
spent redacting an electronic version of a document even though
it could not charge for time spent redacting a hard copy of the
very same document. (See Gov. Code, § 6253, subd. (b); North
County, supra, 23 Cal.App.4th at p. 148.) Given that section
6253.9 was enacted in large part to provide a less expensive
alternative to paper production, an interpretation that would
allow agencies routinely to charge requesters more for the
electronic version seems unlikely.
Responding to this concern at oral argument, counsel for
Hayward emphasized that one general definition of “extraction”
refers not just to “taking something out,” but to “taking out” with
“special effort.” Counsel suggested we could therefore construe
section 6253.9(b)(2) to mean that redaction costs may be shifted
to the requester if, but only if, a court finds that special effort
was required to redact the record given technology reasonably
available at the time. So, for example, a court could conclude
that section 6253.9(b)(2) covers the cost of redacting the videos
here (because of the significant staff time and effort required to
operate the editing program), but that the statute would not
deadline for responding to a PRA request may be extended
because of “unusual circumstances,” including “[t]he need to
compile data, to write programming language or a computer
program, or to construct a computer report to extract data.” (Id.,
§ 6253, subd. (c)(4), added by Stats. 2000, ch. 982, § 1, p. 7141.)
The Legislature’s use of both “deletion” and “extract” in the very
same section of the statute reinforces the conclusion that the
terms were intended to convey distinct meanings. (See Rashidi,
supra, 60 Cal.4th at p. 725.)
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cover redacting records in PDF, a task that is much simpler and
requires less specialized technology and expertise. Moreover,
courts could conclude that redactions that count as “extraction”
today may not count as “extraction” tomorrow: Although the
video redaction at issue here might have required special effort
in 2015, advances in technology may one day make video
redaction more routine and thus not chargeable as data
extraction costs.
We doubt the Legislature intended us to read quite so
much into the bare term “extraction.” A different provision of
the PRA, section 6255, does permit courts to consider context-
specific burdens associated with particular requests in deciding
whether and how an agency must respond. (See § 6255, subd.
(a) [“The agency shall justify withholding any record by
demonstrating . . . that on the facts of the particular case the
public interest served by not disclosing the record clearly
outweighs the public interest served by disclosure of the
record.”].) But section 6253.9(b)(2) does not resemble section
6255. Nothing in section 6253.9(b)(2) suggests it was intended
to require a similar inquiry solely for purposes of cost shifting,
with redaction costs deemed recoverable or not depending on a
court’s case-specific evaluation of how hard it was for agency
officials to perform the redactions under current technological
conditions.
Whatever problems its own interpretation may have,
Hayward argues that NLG’s interpretation is unsupportable
insofar as it would limit “extraction” to responses requiring the
retrieval of data for purposes of constructing a record for public
release. In Hayward’s view, this should be a null set, because,
as a general rule, the PRA (like the federal Freedom of
Information Act, on which the PRA was based) does not require
17
NATIONAL LAWYERS GUILD v. CITY OF HAYWARD
Opinion of the Court by Kruger, J.
agencies to “create new records to satisfy a request.” (Sander v.
Superior Court (2018) 26 Cal.App.5th 651, 665 (Sander).)
Hayward’s argument misunderstands the rule described
in Sander. The PRA does sometimes require agencies to
construct records for public release. Section 6253.9(b) provides,
after all, that a “requester shall bear the cost of producing a copy
of the record, including the cost to construct a record.” (Italics
added.) This language would serve no purpose if agencies were
not, in appropriate circumstances, in fact required to construct
records.
The rule to which Hayward refers is not a general
prohibition on constructing records, as such, but rather a
prohibition on requiring agencies to generate new substantive
content to respond to a PRA request. The rule means that, for
example, agencies need not draft summary or explanatory
material, perform calculations on data, or create inventories of
data in response to a records request. (See, e.g., Haynie v.
Superior Court (2001) 26 Cal.4th 1061, 1075 [“Preparing an
inventory of potentially responsive records is not mandated by
the []PRA.”]; see also, e.g., NLRB v. Sears, Roebuck & Co. (1975)
421 U.S. 132, 161–162 [“The [Freedom of Information] Act does
not compel agencies to write opinions in cases in which they
would not otherwise be required to do so. It only requires
disclosure of certain documents which the law requires the
agency to prepare or which the agency has decided for its own
reasons to create.”]; Students Against Genocide v. Department of
State (D.C. Cir. 2001) 257 F.3d 828, 837 [rejecting argument
that agencies must “produce new photographs at a different
resolution in order to mask the capabilities of the
reconnaissance systems that took them”].) But the rule does not
mean that an agency may disregard a request for government
18
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Opinion of the Court by Kruger, J.
information simply because the information must first be
retrieved and then exported into a separate record before the
information can be released.
Sander, supra, 26 Cal.App.5th 651, itself explained the
distinction. Plaintiffs there requested records reflecting
California Bar Examination applicants’ personally identifying
characteristics, like race, law school, grade point average, bar
exam score, and year of law school graduation. (Id. at p. 655.)
To protect applicant privacy, the requester-plaintiffs proposed
four different protocols the agency could use to “de-identify or
‘anonymize’ ” the data requested. (Id. at p. 658.) Each of these
protocols “ ‘require[d] the State Bar to recode its original data
into new values’ ” (id. at p. 667 [quoting trial court]), including
through “recoding and binning”8 data (id. at p. 659), “[data]
suppression (removing information from data that might be
identifying), adding ‘random noise,’ scrambling data or
generalizing fields of information, or swapping values for
generalized values” (id. at p. 660). In rejecting these proposals
as outside the scope of the PRA, the court held the PRA does not
require “reprogramming computerized data to create new
records”—that is, it does not require agencies to “undertake
programming that would assign new or different values to
existing data, replace groups of data with median figures or
variables, and collapse and band data into newly defined
categories.” (Id. at p. 669.) By contrast, the court recognized,
the PRA does require agencies to gather and segregate
disclosable electronic data and to “perform data compilation,
8
“Binning refers to the practice of grouping and segregating
data of reasonably equivalent values into a single group or set.”
(Sander, supra, 26 Cal.App.5th at p. 659, fn. 3.)
19
NATIONAL LAWYERS GUILD v. CITY OF HAYWARD
Opinion of the Court by Kruger, J.
extraction or computer programming if ‘necessary to produce a
copy of the record.’ ” (Ibid., quoting § 6253.9(b).) But
“segregating and extracting data is a far cry from requiring
public agencies to undertake the extensive ‘manipulation or
restructuring of the substantive content of a record’ ” the
requester in that case had proposed. (Ibid.) Put differently, the
PRA does not relieve agencies of the obligation to retrieve data
to construct disclosable records; it instead protects them from
any obligation to generate new substantive content for purposes
of public release. NLG’s interpretation is perfectly consistent
with that requirement.
In short, NLG’s interpretation is more than supportable;
it is the interpretation that more readily comports with the
statutory text. Under that interpretation, section 6253.9(b)(2)
permits the shifting of costs uniquely associated with the
production of electronic record copies—including, as relevant
here, the need to retrieve responsive data in order to produce a
record that can be released to the public—but not the costs of
redacting exempt information from the record. This
interpretation fits with the typical usage of the term “data
extraction,” as well as with the usage of the term in related
statutory provisions. Even so, the statute does not wholly
foreclose Hayward’s argument for shifting redaction costs, so we
may consider other indicia of the Legislature’s intent to
determine the meaning of the statute. (See Sierra Club, supra,
57 Cal.4th at p. 166.)
B.
We turn, then, to the legislative history. As explained
above, before the Legislature enacted section 6253.9, agencies
had discretion to produce electronic records in any format they
20
NATIONAL LAWYERS GUILD v. CITY OF HAYWARD
Opinion of the Court by Kruger, J.
wished. (Gov. Code, § 6253, subd. (b), added by Stats. 1998,
ch. 620, § 5, p. 4120.) Many agencies exercised this discretion to
convert electronic records, which were often inexpensive to
produce, into paper records, for which the agencies could recover
often greater “direct costs of duplication” under Government
Code section 6253, subdivision (b). (See Sen. Com. on Judiciary,
Analysis of Assem. Bill No. 2799, supra, as amended June 22,
2000, p. 3.) The central purpose of the bill that enacted section
6253.9 was to “ensure quicker, more useful access to public
records” by cabining this discretion. (Assem. Com. on
Governmental Organization, Analysis of Assem. Bill No. 2799
(1999–2000 Reg. Sess.) as introduced Feb. 28, 2000, p. 2.) To
fulfill this purpose, the bill required electronic records to be
produced in electronic format. As a general rule, agencies would
recover only the costs of duplication, just as they do when they
produce paper records. But the bill was amended in June 2000
to add the special costs provision we are concerned with here: If
data compilation, extraction, or programming was required to
produce the record, the agency was entitled to recover the costs
to perform those tasks. (See Assem. Bill No. 2799 (1999–2000
Reg. Sess.) as amended June 22, 2000, pp. 5, 7; § 6253.9(a)(2),
(b)(2).)
Nothing in the legislative history explains precisely what
the Legislature meant by its use of “extraction” in the special
costs provision, but this omission is itself telling. The
overarching motivation for section 6253.9 was to improve access
to electronic records by capitalizing on the relatively less
expensive mechanisms for duplicating electronic records, as
opposed to paper ones. As NLG reads the statute, section
6253.9(b)(2) was designed to create a narrow allowance for
greater cost shifting based on the kinds of expenses that are
21
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Opinion of the Court by Kruger, J.
unique to information kept in electronic format. Under
Hayward’s interpretation, by contrast, section 6253.9(b)(2) was
designed to generally increase cost shifting for electronic records
relative to paper records by making redaction costs recoverable
for the former but not the latter. Given the overarching
motivation for the provision, if the Legislature had intended to
create such a disparity, we might expect the history to contain
some affirmative indication of that intent. But it does not.
To the extent we can discern anything instructive from the
legislative history, the lessons are generally consistent with
NLG’s view that the Legislature was primarily concerned with
the costs of retrieving information from government stores, as
opposed to time spent redacting exempt information. For
example, in discussing Government Code section 6253,
subdivision (c)(4)—the provision extending time limits for
responding to records requests where data extraction is
required—the Senate Judiciary Committee bill analysis noted
that “sometimes the information or data requested is not in a
central location nor easily accessible to the agency itself, and
thus would take time to produce or copy.” (Sen. Com. on
Judiciary, Analysis of Assem. Bill No. 2799, supra, as amended
June 22, 2000, p. 9.) It is fair to conclude that when the
Legislature used the term “extraction” in section 6253.9(b)(2), it
was similarly concerned with the process of retrieving requested
data that was not easily accessible in order to produce it, as
opposed to redacting exempt material.
Hayward points to other portions of the legislative record
in an effort to show the Legislature intended “extraction” to
cover redaction costs. Hayward argues, and the Court of Appeal
agreed, that this intent can be fairly discerned by considering
the views of certain outside groups that had objected to an
22
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Opinion of the Court by Kruger, J.
earlier version of the bill that did not contain subdivision (b)(2).
Before subdivision (b)(2) was added to section 6253.9 in June
2000, these groups opposed the bill because, among other things,
it failed to account for costs associated with redacting exempt
information from electronic records; after the amendment was
added, many of these groups withdrew their opposition. From
this, Hayward infers that subdivision (b)(2) was intended to
assuage opponents’ concerns by allowing agencies to shift the
costs of electronic redactions to requesters.
Nothing in the record supports this inference. The
opposition letters, of course, reflect only the opinions of their
writers—all interested outside parties—and not those of the
Legislature. (See Hassan v. Mercy American River Hospital
(2003) 31 Cal.4th 709, 723 [“letters state the views of the
writers, not the intent of the Legislature,” absent “support for
[the proposed] interpretation from any source within the
Legislature itself”]; Altaville Drug Store, Inc. v. Employment
Development Department (1988) 44 Cal.3d 231, 238, fn. 6; cf.
People v. Dennis (1998) 17 Cal.4th 468, 501, fn. 7 [declining to
take judicial notice of letters in support of a bill in part because
they “simply state[d] the views of two groups specially
interested in supporting the bill’s passage”].) Hayward does
point to a pre-amendment “Question and Answers” sheet by the
bill’s author acknowledging the letter writers’ concerns. But
nothing in that document, or any other document in the
available legislative history, indicates the Legislature shared—
much less acted on—the writers’ concerns about the costs of
electronic redaction.
Nor is it fair to infer from the timing that subdivision (b)(2)
must have been added to section 6253.9 to respond to redaction
cost concerns, as opposed to any of the other concerns raised by
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NATIONAL LAWYERS GUILD v. CITY OF HAYWARD
Opinion of the Court by Kruger, J.
opponents of the bill. Those other concerns included worries
about the cost of producing responsive data stored in massive
databases. (See Violet Varona-Lukens, California Association
of Clerks and Election Officials, letter to Assemblywoman
Carole Migden, May 11, 2000, p. 2 [raising concern that bill
failed to address costs of providing requested information that,
“due to the size or complexity of the database from which the
information is extracted,” would be “extremely burdensome to
provide . . . ‘on demand’ ”]; see also Assem. 3d reading analysis
of Assem. Bill No. 2799 (1999–2000 Reg. Sess.) as amended May
23, 2000, p. 3 [acknowledging concern of some commentators
that, before June 2000 amendments, bill did not address costs of
“separating disclosable electronic records from nondisclosable
electronic records” “retain[ed] [in] massive databases”].) It is
entirely possible that the bill’s opponents succeeded in
persuading the Legislature to address this concern about the
costs of retrieving responsive information from large electronic
repositories, but failed in their efforts to secure an amendment
that would have shifted redaction costs as well.
It is true, as Hayward notes, that many of the groups that
had previously opposed the bill withdrew their opposition after
subdivision (b)(2) was added to section 6253.9. But the
withdrawal letters do not reflect an understanding that the new
provision would cover redaction costs. Neither did the author
nor the bill’s sponsor ever mention that the amendments would
allow agencies to charge for redaction costs. By contrast, at least
one bill analysis suggests the bill as amended would not cover
redaction costs. That analysis noted the amended bill’s “fiscal
effect” would include “[p]otential costs . . . for workload in
redacting nondisclosable electronic records from disclosable
electronic records,” without mentioning the possibility that
24
NATIONAL LAWYERS GUILD v. CITY OF HAYWARD
Opinion of the Court by Kruger, J.
public agencies might recover some of those costs by charging
requesters for time spent redacting exempt material. (Assem.
Conc. Sen. Amends. to Assem. Bill No. 2799 (1999–2000 Reg.
Sess.) as amended July 6, 2000, p. 2.)
In sum, the legislative history offers little support for
Hayward’s proposed interpretation of section 6253.9(b)(2)’s
extraction costs provision as covering the costs of redacting
electronic records. But it does clearly reflect other concerns,
including the difficulties associated with retrieving responsive
data from massive, potentially intractable databases. The
language of section 6253.9(b)(2)—which permits charging
requesters for the cost of “extract[ing]” data to produce or
construct electronic records—is consistent with that narrower
focus.
Neither the text of section 6253.9 nor its history permits
us to comprehensively catalog what types of processes will or
will not qualify as “extraction” within the meaning of the
statute, but they do provide some guideposts. As the legislative
history makes clear, the term is designed to cover retrieving
responsive data from an unproducible government database—
for example, pulling demographic data for all state agency
employees from a human resources database and producing the
relevant data in a spreadsheet. But the term “extraction” does
not cover every process that might be colloquially described as
“taking information out.” It does not, for example, cover time
spent searching for responsive records in an e-mail inbox or a
computer’s documents folder. Just as agencies cannot recover
the costs of searching through a filing cabinet for paper records,
they cannot recover comparable costs for electronic records.
Nor, for similar reasons, does “extraction” cover the cost of
redacting exempt data from otherwise producible electronic
25
NATIONAL LAWYERS GUILD v. CITY OF HAYWARD
Opinion of the Court by Kruger, J.
records. That is the conclusion that best accords with the
statutory text and the history of its enactment.
C.
To the extent any doubt remains, California’s
constitutional directive to “broadly construe[]” a statute “if it
furthers the people’s right of access” confirms our conclusion
that redaction costs are not chargeable as costs of data
extraction. (Cal. Const., art. I, § 3, subd. (b)(2).) All else being
equal, interpreting the term “extraction” in section 6253.9(b)(2)
to cover redaction costs would make it more difficult for the
public to access information kept in electronic format.
Redaction costs are often nontrivial. Take this case, where NLG
was charged more than $3,000 for six hours of responsive video.
For many requesters, such costs may be prohibitive. Article I,
section 3 of the Constitution favors an interpretation that avoids
erecting such substantial financial barriers to access.
Hayward counters that shifting costs to the requester
would actually improve public access to electronic records.
Hayward theorizes that allowing agencies to recoup redaction
costs reduces the overall burden on the agency, which in turn
allows the agency to (1) produce records more quickly; (2) redact
records with greater fidelity to any claimed exemptions; and
(3) rely less frequently on the catchall exemption in section
6255, subdivision (a), the exemption permitting agencies to
withhold records where the public interest in nondisclosure
“clearly outweighs” the interest in disclosure. (See California
Public Records Research, Inc. v. County of Stanislaus (2016) 246
Cal.App.4th 1432, 1451 [suggesting time and convenience
concerns, in addition to cost concerns, affect public’s ability to
access records].)
26
NATIONAL LAWYERS GUILD v. CITY OF HAYWARD
Opinion of the Court by Kruger, J.
While we do not doubt that greater funding for PRA
compliance would yield many of the access benefits Hayward
describes, we are not convinced that shifting redaction costs to
requesters is the right way to secure those benefits under the
statute. Redaction costs could well prove prohibitively
expensive for some requesters, barring them from accessing
records altogether. Even if higher costs to the agency mean
slower disclosure rates or greater inconvenience to the
requester, these burdens on access are insignificant if the
alternative is no access at all.
To the extent Hayward is concerned about being made to
respond to overly burdensome requests without adequate
funding, the PRA does provide various solutions to ease those
burdens. For example, Government Code section 6253,
subdivision (a) requires agencies to disclose nonexempt portions
of records only if they are “reasonably segregable” from portions
exempted by law. Section 6255, subdivision (a) 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,” which may encompass
requests that place undue burdens on an agency. (See American
Civil Liberties Union Foundation v. Deukmejian (1982) 32
Cal.3d 440, 453 [“Section 6255 speaks broadly of the ‘public
interest,’ a phrase which encompasses public concern with the
cost and efficiency of government.”].) And Government Code
section 6253.1, subdivision (a)(3) allows agencies to suggest
ways requesters can reduce practical barriers to agency
compliance with any request—a technique Hayward appears to
have used in this very case.
But no similar provisions protect requesters from costs
that unduly burden their right of access to government
27
NATIONAL LAWYERS GUILD v. CITY OF HAYWARD
Opinion of the Court by Kruger, J.
information. Consideration of that right favors a rule that
avoids shifting routine redaction costs as a condition of gaining
the access the PRA promises.9
Hayward argues that requests for body camera footage
present unique concerns for government agencies with limited
resources. We do not doubt the point. Video footage has a
unique potential to invade personal privacy, as well as to
jeopardize other important public interests that the PRA’s
exemptions were designed to protect. Redacting exempt footage
can be time-consuming and costly. But section 6253.9(b)(2) is
not a provision directed to body camera footage alone; it covers
every type of electronic record, from garden-variety e-mails to
large government databases. Whether the unique burdens
associated with producing body camera footage warrant special
funding mechanisms is a question only the Legislature can
decide. We hold only that section 6253.9(b)(2), as presently
written, does not provide a basis for charging requesters for the
costs of redacting government records kept in an electronic
format, including digital video footage.
III.
Applying this understanding here, we conclude the trial
court was correct to disallow the City’s charges for time its staff
spent responding to NLG’s requests.
The City charged for Nathaniel Roush’s time spent
searching Evidence.com for responsive videos, reviewing videos,
9
In Fredericks v. Superior Court (2015) 233 Cal.App.4th
209, 238, the Court of Appeal suggested that an agency can
recover costs under the PRA for “redaction of information from
confidential electronic records.” We disapprove Fredericks to
the extent it is inconsistent with this opinion.
28
NATIONAL LAWYERS GUILD v. CITY OF HAYWARD
Opinion of the Court by Kruger, J.
downloading them to DVDs, and confirming their download.
Roush never edited the videos; more specifically, he did not
extract responsive data from any video. Hayward does not
argue Roush performed data extraction with respect to the
videos. We agree with this implicit concession. Roush’s tasks of
searching Evidence.com for video records and downloading them
were akin to searching a filing cabinet for responsive paper
records. Such actions are not extraction under the PRA.
The City also charged for Adam Perez’s time spent editing
the videos. But to the extent Perez merely deleted exempt data
from the videos (i.e., redacted them), he did not “extract[]” data
in order to produce new videos within the meaning of section
6253.9(b)(2). This is not to say the process was entirely
straightforward. As Hayward notes, to delete the exempt data,
Perez separated the audio and visual material, spliced out the
exempt data from each set of material, and then saved the
redacted video as a new MP4. But in video-editing terms, what
Perez did was not substantively different from using an
electronic tool to draw black boxes over exempt material
contained in a document in electronic format. As noted, the
paradigmatic example of when section 6253.9(b)(2) applies is
when the government agency is required to pull certain data
from a large database in order to construct a record that can be
disclosed to the requester. In some cases, certainly, the process
to extract responsive data might also, simultaneously, separate
out data that is exempt from disclosure. But this is not such a
case. What Perez did was simply perform redactions of an
otherwise producible record, albeit through technologically more
advanced means.
Hayward raises one final argument to justify at least some
of its charged costs: It argues that Roush performed “data
29
NATIONAL LAWYERS GUILD v. CITY OF HAYWARD
Opinion of the Court by Kruger, J.
compilation,” as the term is used in section 6253.9(b)(2), when
he searched for, located, and collected the responsive videos
from Evidence.com. Neither the trial court nor the Court of
Appeal addressed this argument, and we decline to address it in
the first instance. We thus leave this argument, and any related
forfeiture issues, for consideration on remand.
IV.
We reverse the judgment of the Court of Appeal and
remand for further proceedings consistent with this opinion.
KRUGER, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
GROBAN, J.
30
NATIONAL LAWYERS GUILD v. CITY OF HAYWARD
S252445
Concurring Opinion by Justice Cuéllar
The majority opinion concludes that when City of
Hayward employees spent hours editing out portions of digital
body camera footage that were exempt from disclosure, those
hours didn’t fall within the ambit of data “extraction”
encompassed by Government Code section 6253.9, subdivision
(b)(2).1 I agree but write separately to stress what I take to be
the limited scope of our holding, and to anticipate the somewhat
distinct variations on a theme this case portends.
The California Public Records Act (PRA; § 6250 et seq.)
was enacted to further “access to information concerning the
conduct of the people’s business,” which the Legislature
characterized as “a fundamental and necessary right of every
person in this state.” (§ 6250.) Allowing government agencies
to charge potentially steep sums for mere redactions that must
be routinely performed by municipal employees for PRA
requests — fees that could very well stand as a practical obstacle
to the public’s right of access — would hinder that purpose.
Nothing in the statute’s text or context demonstrates a
legislatively enacted expectation that requesters of government
records pay for what Hayward employees did here: edit the
responsive videos to redact audio and visual material exempt
from disclosure under the PRA.
1
All statutory references are to the Government Code
unless otherwise noted.
NATIONAL LAWYERS GUILD v. CITY OF HAYWARD
Cuéllar, J., concurring
But because such electronic data can be stored in nearly
infinite ways, jurisdictions such as Hayward can respond to
public records requests using technologies that continue to
evolve. Imagine a not-so-distant future when government
entities deploy more thoroughly automated, artificially
intelligent systems for responding to PRA requests. Such
systems would likely weave into a nearly seamless quilt ––
either because of the software’s design and functionality, or
because of how the relevant data were classified –– the search
of government databases for responsive records, their extraction
from the databases, and the editing of portions of the data
exempt from disclosure. Such technology could readily help
agencies be more accurate, efficient, and thorough in responding
to public records requests — and allow members of the public to
receive quicker access to government records. (See Gomez,
MuckRock Request Data Shows Big Difference in Backlogs
Between States (Mar. 21, 2019) Muckrock
[as of May 26, 2020] [average response times for
state public records requests filed through one organization
range from 11 days in Vermont to 148 days in Oregon].)2
This technology will also merit nuanced application of
statutory provisions such as the one at issue here. A
“paradigmatic example of when section 6253.9(b)(2) applies”
and requires payment to the relevant government agency, the
majority opinion explains, is when the agency “pull[s] certain
data from a large database in order to construct a record that
2
All Internet citations in this opinion are archived by year,
docket number, and case name at .
2
NATIONAL LAWYERS GUILD v. CITY OF HAYWARD
Cuéllar, J., concurring
can be disclosed to the requester.” (Maj. opn., ante, at p. 29.)
What our opinion does not address is how the statute ought to
be interpreted if that function becomes part and parcel of tasks
not encompassed by “extraction” — such as editing exempt
material from responsive records. Consider, for example,
software that surveys records replete with metadata about
matters such as physical location and time, isolates responsive
records, and retrieves only those portions of the records that are
relevant and not subject to an exemption under the PRA —
without ever having to delete information from an existing file.
(See maj. opn., ante, at p. 15 [government agencies may not
charge requesters for the deletion of material exempt from
disclosure under the PRA].)
Someone eventually needs to pay for the development,
refinement, and maintenance of such technologies — even in a
world where people and firms extensively use open source
software and loss leading products. Although certain now-
familiar business models pivot on presenting the monetary costs
of these systems to users as low enough to appear negligible or
even nonexistent, such products may impose a host of subtle or
unexpected costs in other forms. As we’ve observed, products
that “attract[] users with ‘free’ and low-priced services” may in
fact lock in dependence on expensive support services, or enable
private companies “to mine, exploit, and market their users’
data to third parties.” (Day & Stemler, Infracompetitive Privacy
(2019) 105 Iowa L.Rev. 61, 63, fn. omitted; see also Newman,
The Myth of Free (2018) 86 Geo. Wash. L.Rev. 513, 563 [product
users “systematically underestimate the amount of information
costs they are willing to incur in exchange” for products that are
advertised as “free”].) That software offered by such business
models may be suitable for public agencies in some situations
3
NATIONAL LAWYERS GUILD v. CITY OF HAYWARD
Cuéllar, J., concurring
doesn’t remotely mean it would make sense in every instance.
(See, e.g., Paquette et al., Identifying the Security Risks
Associated with Governmental Use of Cloud Computing (2010)
27 Gov. Inf. Q. 245, 251 [“prevent[ing] unauthorized access to
both data and code” and the “[p]reservation of information and
documents” are among the risks associated with the
government’s use of cloud services and third party software];
Schooner & Greenspahn, Too Dependent on Contractors?
Minimum Standards for Responsible Governance (2008) 6 J.
Cont. Mgmt. 9, 14 [among the challenges of privatizing
government responsibilities is the dependence of agencies on
contractors for service and support].) Click-wrapped gift horses
are best looked in the mouth.
Government agencies willing to do so may often find that
what’s most consistent with their public mission is not to opt for
the system with the cheapest sticker price. They may instead
take best account of the full range of interests and concerns by
selecting products that require subscriptions or otherwise
involve greater up-front expenses but allow for greater certainty
about long-term costs or otherwise evince fidelity to the civic
values at stake. (Cf. Re & Solow-Niederman, Developing
Artificially Intelligent Justice (2019) 22 Stan. Tech. L.Rev. 242,
285 [advocating for the use of technologies that are “more
democratically legitimate” and advance goals other than profit
maximization].) And because that technology may perform
some tasks that overlap with those that constitute “compilation,
extraction, or programming” of data as used in section 6253.9,
subdivision (b)(2) — by culling data from a larger database, for
example, to construct a disclosable record — government
agencies may find it not only prudent, but well within their
4
NATIONAL LAWYERS GUILD v. CITY OF HAYWARD
Cuéllar, J., concurring
statutory power, to share some of the costs of their
infrastructure with requesters of government records.
I don’t construe the majority opinion’s interpretation of
the statutory scheme to foreclose that approach. Our
interpretation and application of terms such as “extraction”
should avoid, to the extent possible, making pivotal distinctions
based on subtle technical details of the digital architecture used
by government agencies. We should instead seek to advance the
interplay of legislative purpose underlying the statutory
scheme. (See Weatherford v. City of San Rafael (2017) 2 Cal.5th
1241, 1246–1247.) Our decision today is in that vein: It
prudently recognizes that, in this particular context, Hayward
may not shift its costs to records requesters for the time its
employees spent redacting exempt material from digital body
camera footage. Yet it continues to give leeway for government
agencies to depend less on having employees cobble together
edited reels of material, and more on making thoughtful choices
about how best to navigate the full range of considerations
relevant to making public records retrieval in the digital age as
responsive and effective as possible.
CUÉLLAR, J.
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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 27 Cal.App.5th 937Rehearing Granted
__________________________________________________________________________________
Opinion No. S252445
Date Filed: May 28, 2020
__________________________________________________________________________________
Court: Superior
County: Alameda
Judge: Evilio M. Grillo
__________________________________________________________________________________
Counsel:
Michael S. Lawson, City Attorney, Justin Nishioka, Assistant City Attorney; Jarvis, Fay & Gibson and
Gabriel McWhirter for Defendants and Appellants.
Jennifer Gore and Maila Hansen for League of California Cities, California State Association of Counties
and California Special Districts Association as Amici Curiae on behalf of Defendants and Appellants.
Dannis Woliver Kelley, Sue Anne Salmon Evans, William B. Tunick, Jennifer H. Choi; Kathryn Meola and
Michael Ambrose for The California School Boards Association as Amicus Curiae on behalf of Defendants
and Appellants.
Law Offices of Amitai Schwartz, Amitai Schwartz; American Civil Liberties Union Foundation of
Northern California, Inc. and Alan L. Schlosser for Plaintiff and Respondent.
Katie Townsend, Bruce D. Brown, Caitlin Vogus and Daniel J. Jeon for Reporters Committee for Freedom
of the Press and 33 Media Organizations as Amici Curiae on behalf of Plaintiff and Respondent.
Davis Wright Tremaine, Kelli L. Sager, Dan Laidman and Selina MacLaren for California News Publishers
Association and First Amendment Coalition as Amici Curiae on behalf of Plaintiff and Respondent.
McManis Faulkner and Christine Peek for Society of Professional Journalists, Northern California Chapter
and Pacific Media Workers Guild as Amici Curiae on behalf of Plaintiff and Respondent.
Briggs Law Corporation, Cory J. Briggs and Anthony N. Kim for San Diegans for Open Government,
California Taxpayers Action Network and The Inland Oversight Committee as Amici Curiae on behalf of
Plaintiff and Respondent.
Rebecca Carr Miller and Richard A. Rothschild for Coalition on Homelessness, Lawyers’ Committee for
Civil Rights of the San Francisco Bay Area, Legal Aid Foundation of Los Angeles, Legal Services for
Prisoners with Children, Western Center on Law & Poverty and Western Regional Advocacy Project as
Amici Curiae on behalf of Plaintiff and Respondent.
Jim Ewert and Nikki Moore for California News Publishers Association as Amicus Curiae on behalf of
Plaintiff and Respondent.
Terry Francke for Californians Aware as Amicus Curiae on behalf of Plaintiff and Respondent.
Judy Alexander; Davis Wright Tremaine and Thomas Burke for The Center for Investigative Reporting as
Amicus Curiae on behalf of Plaintiff and Respondent.
David Snyder for First Amendment Coalition as Amicus Curiae on behalf of Plaintiff and Respondent.
Barbara W. Wall for Gannett Co., Inc., as Amicus Curiae on behalf of Plaintiff and Respondent.
Jeffrey Glasser for Los Angeles Times, LLC, and The San Diego Union-Tribune, LLC, as Amici Curiae on
behalf of Plaintiff and Respondent.
Juan Cornejo for The McClatchy Company as Amicus Curiae on behalf of Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Amitai Schwartz
Law Offices of Amitai Schwartz
2000 Powell St., Suite 1286
Emeryville, CA 94608
(510) 597-1775
Gabriel McWhirter
Jarvis, Fay & Gibson, LLP
492 9th St., Suite 310
Oakland, CA 94607
(510) 238-1400