There is some wisdom in the adage, “Say what you mean and mean what you say.” This became prevalent in a recent case decided by the California Supreme Court, in which the Court ruled a requester was justified in objecting to being charged for costs to redact requested information. The ruling hinged on the interpretation of the word “extraction,” and while quibbling over the semantics of a word may seem petty, it proved critical in this case.
Because the legislature’s intent wasn’t clear, and likely also because the statute was outdated in terms of how electronic data is handled, the Court decided that “extraction” did not include redaction. This case is a clear example of how other jurisdictions can end up in the same situation, depending on the statute language and circumstances of the case.
Although the data source at the center of this case is police bodycam video, there is a larger issue to consider: What costs will jurisdictions be allowed to recover from requesters when it comes to handling electronic data? Let’s further explore this case, its impact on future public records requests, and the role of technology in the future of public records.
Is It Redaction or Extraction?
The National Lawyers’ Guild (NLG) made a public records request to the City of Hayward, CA for records relating to assistance their police department had given the City of Berkeley in response to a citizen demonstration. Hayward determined that, in addition to other records, video footage from officers’ body-worn cameras was relevant to the NLG’s request.
A staff member downloaded 141 videos from Hayward’s online digital evidence management system, which totaled approximately 90 hours of potentially pertinent video. The staff member responsible for gathering the requested documents determined that the video included audio and visual data that were exempt from document production requirements, including personal medical information and law enforcement tactical security measures.
At the time of NLG’s request, the police department did not have an effective tool for removing exempt data from videos. The staff member figured out a way but determined that editing the necessary video would be extremely time-consuming. The NLG narrowed its request, and the length of requested video was cut from 90 to 6 hours.
In all, about 40 hours was spent redacting the video and accompanying audio. The cost of this time, plus the cost for time spent downloading the video, was charged to the NLG, which it paid under protest. Eventually, the NLG filed legal action seeking a refund of the costs. In response, Hayward appealed and argued that the invoiced costs (totaling about $3,000) were justified under the state Public Records Act (PRA) because its staff had performed “data extraction and compilation.”
The section of the PRA which Hayward cited states, “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 when the request would require data compilation, extraction, or programming to produce the record.” The Court of Appeal ruled that the video redaction qualified as “extraction.” NLG, however, disagreed and asked the California Supreme Court to review the Court of Appeal’s ruling.
Interpreting Outdated Writing for Today’s Technology
The Court’s opinion states, “the issue before us is one of statutory interpretation.” Specifically, the Court was tasked with determining what the California legislature intended by the term “extraction.” Since the legislation didn’t provide a clear meaning, the Court turned to technical definitions and records related to the passing of the legislation, and even consulted Webster’s Dictionary to see how it defined “extract.”
Because the provision was adopted in 2000 and the Court’s opinion was given in 2020, it became necessary for the Court to evaluate how technology has progressed in the 20 years since the provision was written. This created a need to interpret the language in a way that applied to the more sophisticated world of today’s methods of data storage and manipulation.
Most jurisdictions keep at least some data in electronic form across many different agencies with different practices and systems. And the larger the government, the more complex, varied, and voluminous the electronic data is likely to be. This amount of data creates not only storage complications, but also challenges in sharing records with the public, media, and other governments.
To tackle this data sharing complexity, many government agencies find great value in technology software solutions to streamline the public records request process. These solutions replace manual processes and free up time for government officials to focus on other high-priority tasks. State and local governments leverage these modern, efficient solutions to promote transparency and accountability.
How can government agencies avoid legal action in the future? Read on to explore some proactive solutions governments can implement to avoid a future public records legal battle.
What Jurisdictions Need to Know About Linking Public Records Law with Managing Electronic Data
As the California example shows, not only is legislation language critical, but so too is updating that language to reflect current technologies and practices for storing, retrieving, and preparing data. California legislators in the year 2000 almost certainly did not know that police body cam footage would even exist, let alone how their words would be applied to editing and redacting it.
When it comes to electronic records, it’s a long and winding road from PRA language passed 20 years earlier to applying it today. How can states and local jurisdictions keep vital links between what statutes say and what makes sense in relation to the reality of how records are handled?
To better link public records law with evolving technology, governments could implement the following proactive solutions:
- Regularly update guides to state public records law and make them available to the public.
- Identify current technologies being used and ensure any necessary changes are reflected in public records laws.
- Appoint a dedicated Information Technology and Public Records Czar.
- Budget additional technology funds to account for potential “long tail” costs in the future.
Solution #1: Keep Public Records Guides Current
Many states have long had guidance documents for their public records request laws and processes; some are directed at the public and some at agency staff. Though each agency is free to create their own tools, an updated guide which includes critical legal interpretations (for both paper and electronic records) from the state’s top law makers can be a fundamental tool for government entities and the public.
Of course, one crucial benefit of technology is that guides can be “living” documents; they can exist on a site and be continually updated and accessible to agency staff or the public. These guides are most beneficial when they are online and updated regularly, rather than existing as a static document such as a PDF.
Solution #2: Identify And Communicate About Technologies Being Used
Top lawmakers and officials should be aware of the data collection, storage and manipulation technologies agencies are using to provide electronic data to requesters. This information further helps identify:
- statutes needing to be updated or clarified,
- language that reflects obsolete methods,
- language that doesn’t reflect new categories or types of data, and
- issues with interpretation, whether existing or newly emerging, with technology changes.
Solution #3: Appoint A Technology And Public Records Czar
Public records requests are on the rise and media focus on high-profile or controversial events is more intense than ever before. As technology changes and its use increases, states would benefit from a dedicated technology and public records czar. This individual should have expertise in both IT and public records to identify and prioritize issues needing further resolution or evaluation.
Ideally, the technology and public records czar stays ahead of issues before they create problems for states or local governments. The czar should oversee the use of technology to improve efficiency in public records requests, have a thorough understanding of emerging technologies and their impact on the public records space, and be able to identify potential issues and costs of future technology opportunities.
Solution #4: Anticipate And Manage Ongoing Costs
The decision to implement new technologies like police bodycams is not made lightly, and cost is a major factor. In addition to the cost of adding new technology, agencies must consider the cost of managing and processing public records requests for the new types of records that bodycams produce – large and voluminous video and audio files. To anticipate and manage ongoing costs, jurisdictions must be prepared to answer the following.
- What do we know about the costs to prepare the data to be provided (i.e., review and redact)?
Jurisdictions should construct cost estimates for responding to information requests related to specific technologies, based on data and existing examples. These estimates can help identify next steps and overall direction based on available resources.
- What does the public perceive is the “right” balance between the cost of providing the data and the resulting benefit?
The question of who pays the costs is often expressed as the requester or the government. However, the government is using taxpayer money and adopting a new technology has the potential to multiply the costs of providing public records by orders of magnitude. Governments must evaluate the impact, if any, the costs would have on the public benefit.
- What does the law currently provide for allocating costs between requesters and the government, and should that change?
Each state handles costs and their allocation differently. For example, some states allow agencies to charge for staff time while others will charge an hourly rate. Some states will allow agencies to charge for video redaction but provide a process for requesting fee reductions and waivers. States must evaluate their current cost models and adjust them based on new technology.
- What current and future opportunities are there for minimizing costs while still providing the desired quantity and quality of data?
Assuming no unforeseen or unintentional loss of data quantity and quality, cutting costs benefits everyone, no matter who bears the costs. There is a wide range of possibilities for controlling costs, including using artificial intelligence to make video redaction more efficient, adjusting retention policies, and restricting who can request video.
Avoid misinterpretation once and for all
State public records laws vary widely in terms of data protection, recoverable costs from requesters, and to what extent electronic data is covered. For better or worse, there is not a cookie cutter format by which government bodies operate regarding public records requests. Additionally, interpreting documentation drafted years ago is not only tricky but leads to inaccuracies when applied to how we operate today. Technology’s role within public records continues to evolve, and so too must the way we speak about it.
State and local governments should take proactive steps to learn from the Hayward, California case. Regularly updating guides to public records should be a priority, as should reflecting current technologies in these guides. Establishing forward-looking policies for recouping costs will also go a long way in preventing future issues.
Proactive, adaptable solutions can help prevent the negative consequences of situations like the California case from happening in the future.
The Peers in Public Records Newsletter (formerly FOIA News) is a bi-monthly e-newsletter brought to you by GovQA. It is a collection of the latest trends in public record requests and government transparency initiatives, shared stories, live roundtables, informative case studies, and actionable knowledge that will help you calm the chaos and keep your organization compliant. Send your comments to firstname.lastname@example.org.