Public Sector Case Notes

• Publication year: 2019
• Author: By Scott Tiedemann and Dalisai Nisperos

Public Sector Case Notes

By Scott Tiedemann and Dalisai Nisperos

Scott Tiedemann is the Managing Partner of Liebert Cassidy Whitmore, California's largest public sector labor, employment and education law firm. He is the author of the CPER Pocket Guide to the Firefighters Procedural Bill of Rights, as well as a chapter on that topic in California Public Sector Employment Law. Dalisai Nisperos is an Associate in the San Francisco Office of Liebert Cassidy Whitmore. She represents and advises public sector agencies in all aspects of labor, employment, and education law. Ms. Nisperos earned her J.D. from the University of Pennsylvania Law School and her B.A. from the University of California, Berkeley.

Agency Was Permitted to Recover Costs of Redacting Electronic Public Records

National Lawyers Guild v. City of Hayward, 27 Cal. App. 5th 937 (2018)

The court of appeal found that the California Public Records Act (CPRA) permits a public agency employer to recover, from the requestor of public records, the actual costs to the agency of redacting information from electronic records in response to a request for electronically stored public records.

In National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward, the National Lawyers Guild (NLG) requested from the City of Hayward (City) electronic records related to the City of Hayward Police Department's security at a demonstration. The NLG initially requested 11 categories of electronic and paper records, and made two requests for video recordings of police body camera footage from 24 officers.

The City complied with the NLG's records requests and produced more than six hours of body camera footage. City staff spent approximately 170 hours reviewing and redacting portions of the video that were exempt from disclosure under the CPRA. The task required the City to research and acquire a special software program to edit and redact the video recordings. The City then sought reimbursement from the NLG for $2,939.58 in costs, including City staff time spent in reviewing and editing/redacting portions of the requested video recordings that were exempt from disclosure, and costs incurred in copying the videos. In response to the NLG's second request for videos, the City offered to produce copies in exchange for reimbursement for $308.89 in costs.

The NLG filed a legal action seeking reimbursement for its $2,939.58 payment, and access to the second set of its requested videos for no more than the City's direct production costs. The parties agreed that the video recordings that the NLG requested were subject to disclosure but disputed which party should bear the costs of production. The trial court granted the NLG's request and the City appealed.

First, the court of appeal recognized that a person's protected right of access to information regarding the conduct of a police force must sometimes yield to the personal privacy interests of others. The CPRA specifies that "if only part of a record is exempt, the agency is required to produce the remainder, if segregable," but the agency may not withhold the entire document.¹

Second, the court of appeal interpreted §§ 6253 and 6253.9 of the CPRA. Section 6253 permits an agency to recover the direct costs of duplication (for example, photocopying costs and the expense of running the copy machine). Section 6253.9 requires government agencies that maintain public records in an electronic format to...