National Lawyers Guild will have to pay $3K for edited body cam footage from Calif. protest

By Mary Ann Magnell | Oct 11, 2018

SAN FRANCISCO (Legal Newsline) – A California appellate court reversed a trial court’s interpretation of the California Public Records Act (CPRA) and found that the language of the statute included the City of Hayward's “actual expenditures to produce a copy of the body camera video recordings, including the cost of extracting exempt material from these video recordings with the aid of special computer programming.”

The appeal of the Alameda County Superior Court’s decision to grant the petition for writ of administrative mandate to the plaintiff National Lawyers Guild, San Francisco Bay Area Chapter, as well as the writ that directed the City of Hayward and its Chief of Police Diane Urban to refund the guild for two payments made to cover the city’s costs in complying with the guild’s requests under the CPRA were discussed in a Sept. 28 filing by the First Appellate District, Division Three. 

Associate Justice Martin J. Jenkins wrote the decision, which discussed the suit that originally stemmed from a demonstration held in Berkeley in December of 2014 to protest police violence incidents toward private citizens. The Hayward Police Department provided security at the event. 

In January 2015, the guild served the city with requests for 11 categories of public records, both paper and electronic. The city responded by providing the guild with more than 200 public records, including police body camera videos that had been redacted “to exclude material exempt from disclosure under the CPRA on privacy or security grounds,” the ruling states.


Jenkins  

The city’s employees spent an alleged 170 hours “identifying, compiling, reviewing and redacting” the records, and billed the guild for $2,938.58 for reimbursement of “certain costs incurred by its employees in copying the videos for production,” the ruling states.

Although the Guild paid the invoice “under protest,” it made a request for a second set of videos. The city complied, and billed the Guild for an additional $308.89 to cover production costs.  

According to the filing, the guild brought this action in the form of a verified petition for declaratory and injunctive relief and writ of mandate, instead of paying this amount, and sought a refund of its $2,939.58 "for the first set of videos and a release of the second set of videos for ‘[no] more than the direct costs of production,'" the ruling states. The guild paid the second invoice under protest.

In June of 2016, the trial court ruled in favor of the guild and concluded that “as a matter of law, section 6253, subdivision (b) and section 6253.9, subdivision (a)(2) do not permit the city to charge a CPRA requester for costs incurred in making a redacted version of an existing public record.”

The appeals court disagreed.

"Specifically, we conclude based on these documents that lawmakers were in fact aware the cost of redacting exempt information from electronic records would in many cases exceed the cost of redacting such information from paper records," the decision says.

"For this reason (and perhaps others), lawmakers drafted section 6253.9(b) to expand the circumstances under which a public agency could be reimbursed by a CPRA requester to include, among others, the circumstance present here wherein the agency must incur 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."

California 1st District Court of Appeals, Division Three case A149328

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