California Court Orders Refund of Funds Charged in Public Records Act Request Seeking Police Body Cam Videos
On March 17, 2016, Judge Evelio Grillo of the Alameda County, California, Superior Court issued an order granting a motion filed by the National Lawyers Guild, San Francisco Bay Area Chapter (NLG) for a refund of fees it paid to the City of Hayward for Hayward's costs of producing numerous records requested by NLG. The judge essentially found that a governmental agency could not charge a records requester for the time and costs incurred in editing and redacting a public record being prepared for release.
The Hayward Police Department (HPD) requires its officers to wear body cams. In late 2014 and early 2015, the HPD assisted a neighboring city in policing several public demonstrations. An unrelated third party and the NLG both made numerous public records requests under California. Government Code 6253(b) and 6253.9(A)(2) seeking, among other things, body cam footage of dozens of specific HPD officers. For NLG's non-body cam (or document requests), Hayward produced 220 written documents without charging NLG for staff time or costs of production.
The body cam video was a different story though. Hayward told NLG that it had cost them $3,246.47 in staff time to review and redact from the videos any footage that was exempt from public disclosure. Hayward claimed it spent over 170 hours "locating, retrieving, reviewing, redacting, and producing" the body cam footage, and charged NLG that amount prior to releasing the material to them. NLG later filed a Petition for a Writ of Mandate in Alameda County Superior Court seeking an order directing Hayward to refund those fees. NLG alleged the charges of redaction were improper under Government Code 6255, which allows a government agency to charge a requester for the "direct costs of duplication" of public records.
The judge found that the term "direct cost" does not include "the ancillary tasks necessarily associated with" the retrieval and handling of a public records request from which the record is extracted. In other words, Hayward could not charge NLG for preparing the body cam footage, only for duplicating it.
The court also found significant the fact that Hayward did not charge NLG for the cost in staff time for reviewing and redacting the written documents it had requested. The court said it was "troubled" by Hayward's inconsistency in its interpretation and application of Government Code 6255, and that the city only decided to charge NLG for staff time when NLG balked at paying the standard $103 per disk charge under Hayward's standard fee schedule.
The court granted NLG's petition for a writ of mandate and ordered the city of Hayward to "refund to the NLG all costs charged for the production" of the body cam video "except for the $1 charged for the DVD that contained the public records." See: National Lawyer's Guild, San Francisco Bay Area Chapter v. Urban, et al., Case No. RG15-78543 (March 17, 2016).