1

Filed 10/26/18 (unmodified opn. a ttached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

NATIONAL LAWYERS GUILD, SAN

FRANCISCO BAY AREA CHAPTER,

Plaintiff and Respondent,

v.

CITY OF HAYWARD et al.

,

Defendant s and Appellant s

. A149328

(Alameda County

Super. Ct. No. RG15785743)

ORDER MODIFYING OPINION

AND DENYING REHEARING;

NO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on September 28, 2018, be modified as

follows:

1. On page 1, in the first sentence of the opinion, the words “writ of

administrative mandate” are changed to “writ of mandate” so the first sentence

reads as fo llows: 1

This is an appeal from the trial court’s decision to grant the petition for

writ of mandate of the National Lawyers Guild, San Francisco Bay Area

Chapter (Guild), and to issue a writ directing the City of Hayward and

its Chief of Police Diane Urban (collectively, City) to refund the Guild

for two payments made to cover certain of the City’s costs in complying

with the Guild’s requests for production under the California Public

Records Act (Gov. Code, § 6250 et seq.) (CPRA).

1 Footnote 1 remains in pla ce at the end of the first sentence of the opinion,

unchanged.2

2. On page 15 , the las t full paragraph of the opinion immediately preceding the

disposition, beginning “ Accordingly, we conclude based on the language of the

statute ” and ending “ computer programming in the form of the Windows

Movie Maker software

, ” is modified to read as follows:

Ac cordingly, we conclude based on the language of the statute, the

legislative history, and policy considerations that the costs allowable

under section 6253.9, subdivision (b)(2) include the City’s expenses

incurred in this case to construct a copy of the p olice body camera video

recordings for disclosure purposes, including the cost of special

computer services and programming (e.g., the Windows Movie Maker

software) used to extract exempt material from these recordings in order

to produce a copy thereof to the Guild. We thus remand to the trial

court to conduct a further evidentiary hearing with respect to precisely

which costs, among those billed to the Guild, the City is entitled to

recover under this provision.

There is no change in the judgment.

Resp ondent’s petition for rehearing is denied.

Dated: October 26, 2018 POLLAK, J.

, Acting P. J.

A149328/ Nat. Lawyers Guild, S.F. Bay Area Ch. v. City of Hayward3

A149328 /Nat. Lawyers Guild, S.F. Bay Area Ch. v. City of Hayward

Trial Court: Superi or Court of Alameda County

Trial Judge: Evelio Grillo , J.

Counsel: Michael S. Lawson , City Attorney (Hayward) and Justin Nishioka,

Assistant City Attorney, for Appellants.

Law Offices of Amitai Schwartz and Amitai Schwartz; American Civil

Libert ies Union Foundation of Northern California, Inc. and A lan L.

Schlosser for Respondent

.

Katie Townsend

, Bruce D. Brown and Caitlin Vogus for Reporters

Comm ittee for Freedom of the Press as Amicus Curiae on behalf of

Respondent

.

Jim Ewert and Nikki Moor e for California News Publishers Association as

Amicus Curiae on behalf of Respondent

.

Terry Francke for Californians Aware as Amicus Curiae on behalf of

Respondent

.

Judy Alexander; Davis Wright Tremaine and Thomas Burke for The Center

for Investigative Reporting as Amicus Curiae on behalf of

Respondent

.

David Snyder for First Amendment Coalition as Amicus Curiae on behalf

of Respondent

.

Barbara W. Wall for Gannett Co. , Inc. as Amicus Curiae on behalf of

Respondent

.

Jeffrey Glasser for Los Angeles Times, LLC and The San Diego Union

Tribune, LLC as Amici Curiae on behalf of Respondent

.

Juan Cornejo for The McClatchy Company as Amicus Curiae on behalf of

Respondent

.1

Filed 9/28/18 (unmodified version)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

NATIONAL LAWYERS GUILD, SAN

FRANCISCO BAY AREA CHAPTER,

Plaintiff and Respondent,

v.

CITY OF HAYWARD et al.

,

Defendant s and Appellant s

. A149328

(Alameda County

Super. Ct. No. RG15785743)

This is an appeal from the trial court’s decision to grant the petition for writ of

administrative mandate of the National Lawyers Guild, San Francisco Bay Area C hapter

(Guild), and to issue a writ directing the City of Hayward and its Chief of Police Diane

Urban (collectively, City) to refund the Guild for two payments made to cover certain of

the City’s costs in complying with the Guild’s requests for production under the

California Public Records Act (Gov. Code

, § 6250 et seq.) (CPRA). 2 Concluding the trial

court misinterpreted the applicable provision of the CPRA

— section 6253.9,

subdivision (b)

— we reverse

.

FACTUAL AND PROCEDURAL BACKGROUND

The relevant facts a re not in dispute. The Guild is a not

- for

- profit organization

seeking to unite lawyers and law students with the aim to promote justice in the

administration of law, civil rights and racial equality. On January 27 , 2015, the Guild

ser ved on the City requ ests for 11 categories of public records (paper and electronic)

2 Unless otherwise stated herein, all statutory citations are to the Government

Code.2

relating to a demonstration held in Berkeley in December 2014 to protest recent incidents

of police violence toward private citizens, at which the Hayward Police Departme nt

(D epartment) provid ed security.

In response to these requests, the City provided the Gui ld with copies of well over

200 public records. Among the hundreds of such records, the City produced over six

hours of police body camera videos from the Berkeley demonstration, which had been

redacted to exclude material exempt from disclosure under the CPRA on privacy or

security grounds. 3 In preparing for this productio n, City employees, including

IT manager Nathaniel Roush and the D epartment’s records administrator, Adam Perez,

spe nt approximately 170 hours identifying, compiling, reviewing and redacting exempt

portions from these videos, which were among thousands of hours of police videos stored

on the Internet and accessible only by certain personnel through a password

- protected

external website. 4 According to evidence submitted by the City, Rou sh, in particular,

performed 45 dat abase searches that yielded 141 videos with, c ollectively, about 90 hours

of footage. Then, after initially reviewing the videos for accuracy, Roush dow nloaded

the videos from the cloud and copied them. However, in order to review these videos for

exempt material and to make necessary redactions, Perez required the use of specialized

third party software with audio/video editing capabilities. For this t ask, which the City

had not previously undertaken, Perez researched several different software programs

before selecting Windows Movie Maker as the most suitable program for performing

these functions.

3 The Guild did not expressly request copies of these police body camera videos;

however, the City interpreted the Guild’s requests to include these videos and, thus,

included copies of them in redacted form with its production. On appeal, there is no

dispute these videos qualify as public records subjec t to disclosure under the CPRA.

4 The D epartment instituted its “body

- worn camera” program in 2014 and

typ ically generates about 1,000 hours of videos from these cameras month ly. The

D epartment’s standard operating procedure under this program includes having

individual officers upload the v ideos from their cameras in MP4 format for storage via a

docking stat ion upon their return to the station after their s hifts.3

Realizing the volume of work required to produce the body camera videos, the

City conversed with the Guild with the goal of narrowing its requ ests. In March 2015,

the Guild agreed “for now” to accept approximately six hours of video taken at the

Berkeley demonstration.

On May 18, 2015, after discussions wi th the Guild regarding the City’s costs in

responding to the requests for body camera videos, the City sent the Guild an invoice for

$2,939.58 seeking reimbursement for certain costs incurred by its employees in copying

the videos for production (including the “tedious” task of redacting them). 5 The City

reached this invoice total by determining Roush spent 4.9 hours of his time preparing the

videos for production (excluding his work burning the videos onto DVD ’ s and then

preserving the DVD ’ s as potential evidence). It determined Perez , in turn, spent

35.3 hours engaged in tasks including editing the videos with th e Windows Movie Maker

software ( but excluding his time collecting and compilin g the videos), reviewing over

90 hours of videos, and selecting, b y trial and error, the Windows Movie Maker software

program. The City also agreed to make the redacted videos availa ble for viewing free of

charge.

The Guild thereafter paid this invoice under protest, and received copies of

roughly 232 minutes of police body camera videos, consisting of seven separate videos in

MP4 format. Shortly thereafter, the Guild made a request for a second set of videos

encompassing recordings from 24 named officers, plus other unnamed officers, on duty at

5 Perez described the multi

- phase video editing pro cess, which alone took about

35 hours, as follows. First, all responsive videos were reviewed, and portions within

them that were exempt from discl osure were noted by video start time and end time.

Second, the audio from each exempt portion was extracted and placed in to a separate

audio file in MP3 format. Third, all exempt audio and video portions identified were

redacted using the Windows Movie M aker software. To do this, the audio/video portions

were uploaded, edited on a “ ‘storyboard,’ ” and then edited separately (video followed

by audio) “using the ‘split’ function .

. . to separate specific sections of the video

. . . .”

Finally, Perez lis tened to the videos to ensure no content subject to disclosure was

“inadvertently” edited out, before carefully syncing the video and audio to correspond

accurately.4

the Berkeley demonstrat ion during three specific time periods. The City promptly

complied with this request, permitting the Guild to view the redacted videos free of

charge and offering to produce copies of these videos for a charge of $308.89 to cover

c ertain of its production costs.

Rather than pay this amount, the Guild brought this action in the form of a

Verified Petition for Declaratory and Injunctive Relief and Writ of Mandate (petition)

,

seeking relief in the form of a refund for its payment of $2,939.58 for the first s et of

videos and release of the second set of videos for “[no] more than the direct costs of

production.” About two weeks later, however, the Guild paid the second invoice under

protest and received the second s et of videos (two videos in MP4 format total ing

65 minutes), whi le proceeding with this action.

On June 24, 2016, following issuance of a tentative order and contested hearing,

the trial court ruled in favor of the Guild, concluding th at, as a matter of law,

section 62 53, subdivision (b) and sectio n 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. After the Guild’s request for reconsideration was denied, the City

filed this timely appeal.

DISCU SSION

The only issue before us is one of statutory construction, which is subject to

de novo review. ( Freder icks v. Superior Court (2015) 233 Cal.App.4th 209, 223

( Fredericks ) .) Is the City entitled under section 6253.9, subdivision (b)

(section 6253.9( b) ) to recoup from the Guild certain costs it incurred to edit and redact

exempt material on otherwise disclosable police department body camera videos prior to

the electro nic public records’ production?

To begin, we consider the statute, section 6253.9(b ), in proper context. California

citizens have a protected right of access to information concerning the conduct of the

state ’s business and, in particular, the conduct of its police force. (Cal. Const., art. I, § 3,

subd. (b)(1) [“ The people have the ri ght of access to information concerning the conduct

of the people’s business, and, therefore, the meetings of public bodies and the writings of5

public officials and agencies shall be open to public scrutiny ”]; § 6250 ; see Commission

on Peace Officer Standa rds & Training v. Superior Court (2007) 42 Cal.4th 278, 297

[“ ‘ In order to maintain trust in its police department, the public must be kept fully

informed of the activities of its peace officers ’ ” ].) This right extends to both paper and

electronic recor ds in the public domain. The Legislature thus broadly defines “public

records” to include “ any writing containing information relating to the conduct of the

public’s business

. . . regardless of physical form or characteristics

, ” and defines

“writ i ng” as “a ny handwriting, typewriting, printing, photostating, photographing,

photocopying, transmitting by electronic mail or facsimile, and every other means of

recording upon any tangible thing any form of communication or representation,

including letters, wor ds, pictures, sounds, or symbols, or combinations thereof, and any

record thereby created, regardless of the manner in which the record has been stored.”

(§ 6252, subds. (e), (g); see City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 617

( City of S an Jose ) .)

At the same time, “ public access to information must sometimes yield to personal

privacy interests. When enacting [ the ] CPRA, the Legislature was mindful of the right to

privacy (§ 6250), and set out multiple exemptions designed to protect tha t right.

( [Citation]; see § 6254.) Similarly, while the Constitution provides for public access, it

does not supersede or modify existing privacy rights. ( Cal. Const., art. I, § 3,

subd. (b)(3) .)” ( City of San Jose

, supra

, 2 Cal.5th at pp. 615

– 616 .) A ccordingly, while,

as a general matter, public record s “ ‘ must be disclosed unless a statutory exception is

shown, ’ ” section 6254 sets out a variety of exemptions, “ ‘ many of which are designe d to

protect individual privacy.’ ” ( Id. at p. 616

. )

Relevant here

, “ if only part of a record is exempt, the agency is required to

produce the remainder, if segregable. (§ 6253, subd. (a) .) In other words, ‘ the fact that a

public record may contain some confidential information does not justify withholding the

ent ire document. ’ ( State Bd. of Equalization v. Superior Court [(1992)] 10 Cal.App.4th

[1177,] 1187 ; [citation] .) ‘ The burden of segregating exempt from nonexempt materials,

however, remains one of the considerations which the court can take into account in6

determining whether the public interest favors disclosure under section 6255

. ’

[Citation

. ]” ( County of Santa Clara v. Superior Court (2009) 170 Cal.App.4th 1301,

1321 ( County of Santa Clara ) .) The CPRA thus includes a “ catchall ” provision

—

section 6255

, subdivision (a)

— that exempt s disclosure if “ ‘ the public interest served by

not disclosing the record clearly outweighs the public interest served by disclosure. ’ ” 6

( City of San Jose

, supra

, 2 Cal.5th at p. 616 .)

Th is statutory framework and the public policies supporting it influence our

application of the otherwise well

- established tenets of statutory construction. “ ‘ When

we interpret a statute, “ [o]ur fundamental task

. . . is to determine the Legislature ’ s int ent

so as to effectuate the law’ s purp ose. We first examine the statutory language, giving it a

plain and commonsense meaning. We do not examine that language in isolation, but in

the context of the statutory framework as a whole in order to determine its scope and

purpose and to harmonize t he various parts of the enactment. If the language is clear,

courts must generally follow its plain meaning unless a literal interpretation would result

in absurd consequences the Legislature did not intend. If the statutory language permits

more than on e reasonable interpretation, courts may consider other aids, such as the

statute ’ s purpose, legislative history, and public policy. ” [Citatio n.] “ Furthermore, we

consider portions of a statute in the context of the entire statute and the statutory scheme

of which it is a part, giving significance to every word, phrase, sentence, and part of an

act in pursuance of the legislative purpose. ” ’ [Citation.] [¶] In CPRA cases, this standard

approach to statutory interpretation is augmented by a constitutional imperative.

[Citation.] Proposition 59 amended the Constitution to provide ‘ A statute, court rule, or

other authority, including those in effect on the effective date of this subdivision, shall be

6 The City raised the additional argument below under section 6255 that the

Guild’s reques t for disclosure of the police body cam era video recordings was too

onerous due to the costs required to review and redact material in the recordings to

protect privacy and other legitimate concerns . (See Fredericks

, supra , 233 Cal.App.4th

at pp. 237

– 238; S tate Bd. of Equaliz ation v. Superior Court

, supra , 10 Cal.App.4th at

pp. 1188

– 1189

. ) However, the trial court found a gainst the City on this issue

, and the

Cit y has not appealed this ruling.7

broadly cons trued if it furthers the people’ s right of ac cess, and narrowly construed if it

limits the right of access.’ ( Cal. Const., art

. I

, § 3, subd. (b)(2)

, italics added.) ‘ “ Given

the str ong public policy of the people’ s right to in formation concerning the people’ s

business ( Gov. Code, § 6250 ), and the constitutional mandate to construe statutes limiting

the right of access narrowly ( Cal. Const., art

. I

, § 3, subd. (b)(2) ), ‘ all public records are

subject to disclosure unless the Legislature has expressly provided to the contrary. ’ ” ’

[Citation.] ” ( Ci ty of San Jose

, supra

, 2 Cal.5th at pp. 616

– 617 .)

Returning to the matter at hand, the parties agree the electronic records sought by

the Guild under the CPRA, including the police body camera videos, qualify as “public

records” subject to disclosure unde r section 6252 either in full or in part. The dispute

concerns which party must bear certain costs incurred in connection with the City’s

production of these records. Two provisions of the CPRA are implicated

— section 6253,

originally enacted in 1998 (Sta ts

. 1998

, ch

. 620 § 5 , pp. 4120

– 4121 ( Sen. Bill. No. 143) )

,

and section 6253.9, a relatively new addition to the CPRA added in 2000 to respond to

the growing tendency of public entities to maintain records in electronic format rather

than paper format (Sta ts

. 2000

, ch

. 982 § 2 , p. 7142 ( Assem. Bill No. 2799) ) . (See

Fredericks

, supra

, 233 Cal.App.4th at p. 236 [ section 6253.9(b) was added “ to allow

allocation of costs for production of info rmation in an electronic format”].)

More specifically, section 6253 , subdivision (b) provides in relevant part that,

subject to any applicable exemptions, a public agency has the duty to respond to “a

request for a copy of records that reasonably describes an id entifiable record or records ”

by making s aid records availabl e “upon payment of fees covering direct costs of

dup lication, or a statutory fee if applicable.” (See Fredericks

, supra

, 233 Cal.App.4th at

p. 236 [“ Generally, the ancillary costs of retrieving, inspecting, and handling material to

be prepared for disclos ure may not be charged to the requestor ”]; County of Santa Clara

,

supra

, 170 Cal.App.4th at p. 1336 [w hen paper records are sought, “direct cost has been

interpreted to cover the ‘cost of running the copy machine, and conceivably also the

expense of the pe rson operating it’ while excluding any charge for ‘the ancillary tasks

necessarily associated with the retrieval, inspection and handling of the file from which8

the copy is extracted’ ”] .) In addition, s ection 6253 affords an agency, upon its receipt of

a CPRA request, 10 days to determine whether the request, in whole or in part, seeks

copies of disclosable public records in the possession of the agency

. This time period

may be extended by written notice in “ unusual circumstances, ” which include the

circ umstance, among others, that proper processing of the particular request reasonably

calls forth the “ need to compile data, to write programming language or a computer

program, or to construct a computer report to extract data. ” ( § 6253, subd. (c)(4) [adde d

by Stats. 2000, ch. 982, § 1

, pp. 7140

– 7141 ].)

Section 6253.9(b), in turn, provides that, when electronic (rather than paper)

records are requested, “an agency [can] recover specified ancillary costs in either of two

cases: (1) when it must ‘produce a copy of an electronic record’ between ‘regularly

scheduled intervals’ of production, or (2) when compliance with the request for an

electronic record ‘would require data compilation, extraction, or programming to produce

the record.’ (§ 6253.9, subd. (b)( 1)

– (2); [citation].) Under those circumstances, the

agency may charge ‘ 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).)” ( County of Santa Clara

, s upra

, 170 Cal.App.4th at p. 1336

, italics added ;

accord, 88 Ops.Cal.Atty.Gen. 153, 164 (2005) [whether under section 6253.9

,

subdivision (b)(1) or (b)(2)

, “ the fee may not include expenses associated with the [public

entity’ s ] initial gathering of the info rmation, or with initial conversion of the information

into a n electronic format, or with maintaining the information”].)

Here, t he City relies on section 6253.9 , subdivision (b)(2) to argu e the Guild

should bear the costs incurred by the City to acquire and employ a special computer

software program to redact or “extract[] ” from the body camera video recordings material

exempt from disclosure on privacy or other statutorily recognized grounds. In so

arguing, th e City reasons that “ [ t ] aking exempt materia l out of a digital video file in order

to allow a record to be produced is a form of extraction

. . . [such that its] efforts may be

invoiced to a requestor a s authorized by §6253.9(b)(2).”9

The Guild disagrees, arguing that “extraction,” as used in the st atute, is limited to

situations where “ ‘[t]he request would require data compilation, extraction, or

programming to produce the record

. . . . Nothing in the statutory language indicates that

the term ‘extract’ means to reduce a record by taking out infor mation that is exempt from

public disclosure

. ” The trial court accepted this argument, concluding “the phrase ‘data

compilation, extraction, or programming to produce the record’ [§§ 6253 , subd. (c)(4)

,

6253.9 , subd. (b)(2)] does not refer to making a red acted version of an existing public

record.”

Thus, at bottom, the parties’ dispute over what costs are recoverable by a public

agency under section 6253.9 , subdivision (b)(2) hinges on the statutory definition of the

term “extraction.” We therefore begin with the well

- established principle that statute s are

to be interpreted “ according to the usual, ordinary import of the language employed in

framing them .” ( In re Alpine (1928) 203 Cal. 731, 737

. ) And the word “extract,” as the

parties have agreed, usua lly and ordinarily means to remove or to take out

. ( See

Merriam

- Webster Dict. < https://www.merriam

- webster.com/dictionary/extract > [as of

Sept. 21, 2018] [“ to remove (something) by pulling it out or cutting it out ”]. ) At first

glance, “taking out” appear s to be precisely the action taken by the City’s employees in

this case

, causing the City to incur the costs for which it now seeks reimbursement from

the Guild

— they removed or took out exempt material from the body cam era video

recordings in order to prod uce the otherwise disclosable recordings

. The Guild, however,

contends this action by the City was “redaction”

— distinct from “extraction”

— which

means taking exempt material out of the original record in order to produce the original

record, “but with empt y holes [

. ] ” “Extraction,” the Guild insists, means “pulling data out

of an electronic database in order to generate a record” in order to meet a CPRA request.

Because this did not occur here, the Guild continues, the City may recover only the direct

c ost of duplicating the records.

Accepting the Guild ’s position , the trial court reasoned ( when declining to a ward

the City any additional costs for preparing and redacting the videos for production ) that

“s ection [s] 6253.9(b) and 6263.9(b)(2 ) [ sic ] together strongly suggest [] that a public10

agency may require cost reimbursement where the ‘data compilation, extraction, or

programming’ is necessary

. . . ‘to construct a record,’ but it does not suggest that when a

request is made under the CPRA for an existing p ublic record,

. . . the agency may charge

for information or data removed from that record.” ( Second italics added.)

Having considered both positions, we find no clear answer in the statutory text to

the parties’ dispute. On the one hand, the common mea ning of “extraction” appears to

extend beyond redacting privileged or otherwise nondisclosable data or information to

“removing” or “taking out ” any data or information. As such, we question, if the

Legislature i ntended “extraction” in section 6253.9

, sub division (b)(2) to have a restricted

meaning

— to refer to extractions of “data” for the particular purpose of “constructing” or

“generating” a new record but not to redactions of exempt data or information from an

existing record

— why the Legislature would n ot have made its intent more explicit. 7

In any event, we are ultimately left to conclude that it is unclear from the statutory

language whether “e xtraction” was intended by the Legislature to include any act of

removing or taking out material from an elec tronic record in anticipation of its production

(including exempt material) or, as the Guild insists, only removing or taking out “data”

for the purpose of constructing or generating a previously nonexistent record. And in

light of this ambiguity, we turn to extrinsic sources such as the legislative history to help

de cipher section 6253.9(b)’s meaning. ( Fredericks

, supra

, 233 Cal.App.4th at p. 230

[ambiguity exists where statutory language is susceptible of more than one reasonable

interpretation]; County of Santa Clara

, supra

, 170 Cal. App. 4th at pp. 1333

– 1334

[ “ ‘[where] statutory terms are ambiguous, we may examine extrinsic sources, incl uding

. . . the legislative history’ ”] .)

7 “Data” ordinarily means “ facts or information used usually t o calculate, analyze,

or plan something ” or “ information in digital form that can be transmitted or processed.”

(Merriam

- Webster Dict. <https://www.merriam

- webster.com/dictionary/data> [as of

Sept. 21, 2018].) Accordingly, we see no basis for concluding that extracting “data” from

an electronic file is distinct from extracting “information” from such file.11

In this legislative history, which we judicially notice for purposes of thi s appeal

,

we find s everal documents supporting the City’s position that section 6253.9(b) was

intended to permit a local government to recover costs in circumstances, like this, where

electronic public records require special computer programming to segreg ate disclosable

from nondisclosable material in order to produce a copy of the record to the requester

.

To begin with, this history reveals that, when the sponsor of Assembly Bill No. 2799 first

introduced the bill in February 2000 in recognition of the i ncreasing tendency of public

agencies to maintain records in electronic format, the draft bill continued the statutory

limitation on recovery of costs by a public agency under the CPRA to “direct costs of

duplication.” (Assem. Bill No. 2799 (1999

– 2000 Reg

. Sess.) § 1, as introduced Feb. 28,

2000 (AB 2799) ; Cal. Bus., Transportation & Housing Agency, Dept. of Fin. Insts.,

E nrolled Bill Rep. of AB 2799 as amended July 6, 2000, p. 1 .) The draft bill did not

include the language, now found in section 6253.9

, subdivision (b)(2), that the requester

shall bear the costs of producing an electronic record, including the cost of programming

and computer services necessary to produce a copy of the record where (inter alia) the

“request would require data compilation, extraction, or programming to produce the

record.” Several groups opposed this version of the bill on the precise ground that

redacting or segregating nondisclosable electronic records from disclosable electronic

records would be time

- consuming and costl y. Specifically, as explained in one analysis

of AB 2799, groups opposing the bill were concerned “that separating disclosable

electronic records from nondisclosable electronic records could be a costly and time

consuming process” and “ that this bill does not contain a provision authorizing agencies

to charge fees covering the cost of preparing the electronic record for public release when

such preparation is necessary.” (Assem. Com. on Governmental Organization, 3d

reading analysis of AB 2799 as amended May 23, 2000, p. 2.)

Similarly, the fiscal comment section of the Assembly Republican Caucus’s bill

analysis noted: “Public entities may keep large amounts of information in a database,

some of which may not be for public consumption. Public entities ma y then have to

purge the database and eliminate nondisclos e able records, which could be a costly12

endeavor.” 8 (Assem. Republican Caucus, analysis of AB 2799 as amended M ay 23,

2000, p. 1.)

Responding to this opposition, the current language of section 625 3.9

,

subdivision (b)(2) was added to the draft bill in June 2000, which was then approved by

the Senate in July and by the Assembly in August. 9 (Sen. Amend. to AB 2799 June 22,

2000; AB 2799

, 2 Assem. Final Hist. (1999

– 2000 Reg. Sess.) p. 1984; s ee Genera l

Counsel Thomas W. Newton

, Cal. Newspaper Publishers Assn.

, letter to Gray Davis,

Sept. 8, 2000, p. 2 [“AB 2799 was amended on June 22, to ensure the bill would not

place new burdens on state or local agencies. Specifically, the bill was amended to

requi re the requeste r to bear the cost of producing a copy of an electronically held

record

. . . . This provision guarantees the costs associated with any extra effort that

8 Among those opposing the bill on this ground was the San Bernardino County

Sheriff’s Department, which wrote to AB 2799’s sponsor that “[l]aw enforce ment records

can and do at times contain sensitive business and personal data acquired during a

criminal investigation” and that, among other concerns, the bill, as amended April 27,

2000, “fails to address the actual cost to the public of redacting an ele ctronic database,”

including the cost of reviewing “each record

. . . individually. All of the costs for

personnel to review the database are not currently re imbursable

. . . .” (Lt. Paul R. Curry,

San Bernardino County She riff’s Dept., letter to Assem. m ember Kevin Shelley, May 3,

2000.) Similarly, the County of Los Angeles voiced opposition to AB 2799, as amended

April 27, 200 0, in a letter to the Assembly f loor, explaining “the Auditor

- Controller

reports that Countywide time keeping systems contain da ta that would require special

programming to provide information without jeopardizing employee privacy. [¶] The

Audit Division utilizes special proprietary software that cannot be redacted in its original

electronic format. The electronic format proposal will increase substantially the cost of

legal review, redaction and special programming. [¶] Because of the potential costs

associated with its implementation, I urge your ‘NO ’ vote on Assembly Bill 2799.”

(Principal Deputy County Counsel Steve Zehner, Co unty of Los Angeles, assembly floor

letter

, May 22, 2000.)

9 As noted on page 2 of the bill a nalysis for AB 2799 prepared by the Senate

Committee on Judiciary in May 2000, shortly before the amended bill was released, the

s ponsor “[ was ] working with the op position closely to address their concerns.

Amendments may be introduced to address the issue of the cost and feasibility of

redacting public information. If necessary, the amendments will be submitted to

committee no later than June 19, 2000 [

. ] ”13

might be required to make an electronic public record availabl e shall be borne by the

requeste r, not the state o r local agency ”].)

In this amen ded form, most opposition to AB 2799 was withdrawn. For example,

the California Newspaper Publishers Association (CNPA), a supporter of the bill, wrote

to the Governor to urge his support, advising that the bill in its amended form would not

place “new burdens” on state and local agencies. And pointing to the newly added

provision that ultimately became section 6253.9, subdivision (b)(2), the CNPA observed:

“This provision guarantees the costs as sociated with any extra effort that might be

required to make an electronic public record available shall be borne by the requester, not

the state or local agency.” ( General Counsel Thomas W. Newton

, CNPA, letter to Gray

Davis, Sept. 8, 2000, p. 2.)

Also telling, the California Association of Clerks and Election Officials (CACEO)

initially opposed the bill due to its “understand[ing] that it is the intent of the sponsor that

[recoverable] costs not include costs associated with any minor programming that may be

required to comply with a request made pursuant to this section of the bill and costs

associated with redaction of any information that is exempted

, or prohibited

, from

disclosure by other sections of law.” (Co

- chair Violet Varona

- L ukens, CACEO, le tter to

Assem. m ember Carole Migden, May 11, 2000, p. 1.) However, the CACEO dropped its

opposition in light of the June 22, 2000 amendment, writing to the bill’s sponsor the day

before the amendment passed that “[AB 2799], as proposed amended, now addres ses the

costs incurred by public agencies in providing copies of electronic records under

circumstances now described in the bill [to wit, the language of section 6253.9(b)].” (Co

chair Violet Varona

- L ukens, CACEO, letter to Assem. m ember Carole Migden, J une 21,

2000.)

Below, the trial court found the “apparent legi slative intent of section 6253.9 was

to address issues particular to information in electronic format ‘relating to the conduct of

the public’s business prepared, owned, used

, or retained by any state or local agency.’

(Gov ernment Code 6252(e).) There is, however, no indication [apparent to the trial

court] that the legislature intended to permit a public agency to characterize its redactions14

of electronic documents as ‘extractions’ and thereby recover its costs of redacting exempt

information, but not to permit the public agency to recover its costs of redacting exempt

information from paper public records if the agency performs the redac tion with a black

felt marker.”

Our review of the legisl ative history, as described above, leads us to a different

conclusion. 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 cos t of redacting such information from paper records. For this

reason (and perhaps oth ers), 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 cir cumstance 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. 10 ( See Fredericks

, supr a

, 233 Cal.App.4th at p. 238 [where disclosures “ would

require generation, compilation and redaction of information from confidential electronic

records, then section 6253.9, subdivision (b) may allow the court to condition disclosure

upon an additional im position of fees and costs, over and above the direct costs of

duplication

. . . . Section 6253.9, subdivision (b) contemplates that the trial court will

make a determination about the reasonableness of any fiscal burdens that would be

placed on the [agen cy] from the requested disclosures” ].)

10 We fi nd the Guild’s reliance on Sierra Club v. Superior Court (2013) 57 Cal.4th

157 to be misplaced. There, the California Supreme Court found the legislative history

relied upon by the parties to interpret a particular phrase in the statute unhelpful because

it was not clear from the history that the objective of an authoring legislator was known

to, much less accepted by, the Legislature as a whole. ( Id. at p. 173.) However, there,

the Suprem e Court was considering section 6254.9, not section 6253.9, and, m ore specifically, “whether the Legislature intended the term ‘computer mapping systems’ to

exclude both mapping software and parcel data in a system

- compatible format from the

definition of a public record, or to remove all ‘computer readable data bases’ f rom the

ambit of the exclusion.” ( Id. at p. 174.) This statutory language is not our concern.15

Accordingly, we conclude based on the language of the statute, the legislative

history, and policy considerations that th e costs allowable under section 6253.9

,

subdivision (b)(2) include the City’s actual expenditur es to produce a copy of the police

body cam era video recordings, including the cost of extracting exempt material from

these video recordings with the aid of special computer programming in the form of the

Windows Movie Maker software.

DISPOSITION

The tri al court’s judgment is reverse d

.16 _________________________ Jenkins, J.

We concur:

_________________________ Siggins, P. J.

_________________________ Pollak, J.

A149328/ Nat. Lawyers Guild, S.F. Bay Area Ch. v. City of Hayward17

A149328 /Nat. Lawyers Guild, S.F. Bay Area Ch. v. City of Hayward

Trial Court: Superi or Court of Alameda County

Trial Judge: Evelio Grillo , J.

Counsel: Michael S. Lawson , City Attorney (Hayward) and Justin Nishioka,

Assistant City Atto rney, for Appellants.

Law Offices of Amitai Schwartz and Amitai Schwartz; American Civil

Liberties Union Foundation of Northern California, Inc. and A lan L.

Schlosser for Respondent

.

Katie Townsend

, Bruce D. Brown and Caitlin Vogus for Reporters

Comm it tee for Freedom of the Press as Amicus Curiae on behalf of

Respondent

.

Jim Ewert and Nikki Moore for California News Publishers Association as

Amicus Curiae on behalf of Respondent

.

Terry Francke for Californians Aware as Amicus Curiae on behalf of

Res pondent

.

Judy Alexander; Davis Wright Tremaine and Thomas Burke for The Center

for Investigative Reporting as Amicus Curiae on behalf of

Respondent

.

David Snyder for First Amendment Coalition as Amicus Curiae on behalf

of Respondent

.

Barbara W. Wall for Gannett Co. , Inc. as Amicus Curiae on behalf of

Respondent

.

Jeffrey Glasser for Los Angeles Times, LLC and The San Diego Union

Tribune, LLC as Amici Curiae on behalf of Respondent

.

Juan Cornejo for The McClatchy Company as Amicus Curiae on behalf o f

Respondent

.