In National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward, the Supreme Court today holds that a requester under the Public Records Act need not pay costs associated with redacting protected materials from an electronic record before the record is disclosed.
The City of Hayward charged over $3,000 for 40 hours its employees had spent editing digital police body camera footage. The recordings were made during 2014 protests of grand jury decisions not to indict police officers involved in the killings of unarmed African-Americans Eric Garner and Michael Brown. The court’s decision comes as protests continue over the killing of another unarmed African-American, George Floyd, in Minneapolis.
The Act provides that, in addition to duplication costs, governments can recover costs of “data extraction” in producing electronic records. The court’s unanimous opinion by Justice Leondra Kruger recognizes the Act “allocates certain costs to the [record] requester, while others must be borne by the agency responding to the requests” and concludes “the term ‘data extraction’ does not cover the process of redacting exempt material from otherwise disclosable electronic records.”
In addition to signing the court’s opinion, Justice Mariano-Florentino Cuéllar writes separately to ponder how technological advances might affect responses to public records requests. He asks that we “[i]magine a not-so-distant future when government entities deploy more thoroughly automated, artificially intelligent systems for responding to PRA requests” and says the court “should avoid, to the extent possible, making pivotal distinctions based on subtle technical details of the digital architecture used by government agencies.” Justice Cuéllar has written before about the use of artificial intelligence in government.
Justice Cuéllar’s concurrence also contains another one of his creative lines. Talking about technology products with no or low 
upfront costs but with expensive support charges or the enabling of data mining, Cuéllar says, “Click-wrapped gift horses are best looked in the mouth.”
The court reverses the First District, Division Three, Court of Appeal. It also disapproves a 2015 opinion by the Fourth District, Division One.
