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State Supreme Court Limits What Agencies Can Charge to Release Body Cam Video

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This story was produced by the California Reporting Project, a coalition of 40 news organizations across the state. The project was formed to request and report on previously secret records of police misconduct and use of force in California.

Story by Alex Emslie, KQED

The state Supreme Court ruled Thursday that public agencies cannot charge for staff time and technical costs in preparing multimedia materials they’re required to release under the California Public Records Act.

The landmark ruling, which centers on the costs agencies have charged for redacting sensitive information from multimedia files, came in a lawsuit filed by the National Lawyers Guild against the city of Hayward. The decision promises to dramatically increase public access to police body camera footage among other audio and video files.

"The court drew a bright line," said attorney Amitai Schwartz, who represented the National Lawyers Guild. "We’re very happy with it."

The case goes back to early 2015, when the guild’s Bay Area chapter requested records related to Hayward officers’ behavior during Black Lives Matter protests in Berkeley.

Hayward eventually provided the videos, after struggling to figure out a way to remove parts of the footage that were exempt from disclosure. For instance, a public agency can withhold video that captures officers discussing tactics.

Hayward sought to charge the guild $3,000 for the time two employees spent preparing the video.

KQED and the California Reporting Project, which KCET is a part of, were featured in SoCal Connected's "The Fight to Know". Watch the full episod here.

The guild challenged those costs in court, arguing that an agency may only pass on the direct cost to duplicate a record under the Public Records Act. For paper records, those charges can include costs for paper and toner, for instance, but not for time spent blacking out any portion of a document.

However, the Public Records Act was amended in 2000 to allow agencies to charge for responses that require “data compilation, extraction, or programming.” Hayward argued that redacting the videos was akin to “extracting” information from them. The National Lawyers Guild argued the provision was meant to include situations where agencies produce parts of databases — a task that may require computer programming — but not redaction.

“The question here is what the Legislature meant by the term ‘extraction,’” the ruling by Justice Leondra Kruger says.

The opinion continues:

“[T]he 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 email 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 records.”

The ruling is much more than an affirmation for those advocating for increased access to public records. It’s likely to change the landscape regarding access to police body camera footage and other internal law enforcement files that must be released under two recent state laws that grant broader public access, SB 1421 and AB 748.

The laws both took effect last year. SB 1421 requires police agencies, for the first time in 40 years, to provide records from internal investigations into serious uses of force by law enforcement officers. It similarly requires police agencies to disclose records from misconduct investigations involving allegations of sexual assault and dishonesty against officers. Those investigations often include multimedia files, including audio recordings of interrogations and video from surveillance and body cameras.

AB 748 generally requires law enforcement agencies to release video of “critical incidents,” including police shootings, within 45 days.

Over the past year, many law enforcement agencies have provided those files at reasonable or no cost. But some have not.

In response to records requests from a coalition of news organizations, including KQED, the Bakersfield Police Department has provided text documents related to nearly 40 police shootings, 65 additional serious uses of force, seven investigations into officer dishonesty and two sexual assault cases. KQED was among 33 news organizations represented by the Reporters Committee for Freedom of the Press that filed a brief to the Supreme Court supporting the National Lawyers Guild's position.

Citing the provision of state law at issue in the National Lawyers Guild case, Bakersfield quoted a cost of $110.36 per hour of multimedia content, estimating that each shooting case contained an average of 15 hours of audio or video files. Therefore, obtaining video from any incident would cost requestors an estimated $6,621.60, or more than $250,000 just for the shooting cases. The news organizations could not afford to pay, and the files remain hidden from public view.

The Supreme Court ruling Thursday appears to prohibit that charge. The court likens preparation of such videos for production to redacting text records.

“[I]n video-editing terms, what (Hayward) did was not substantively different from using an electronic tool to draw black boxes over exempt material contained in a document in electronic format,” the ruling says. “What (Hayward) did was simply perform redactions of an otherwise producible record, albeit through technologically more advanced means.”

Sukey Lewis of KQED News contributed to this report.

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