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Court: California Agencies Can't Charge to Edit Police Video

by Don Thompson
Friday May 29, 2020
This Jan. 15, 2014 file photo shows a Los Angeles Police officer wearing an on-body cameras during a demonstration for media in Los Angeles
This Jan. 15, 2014 file photo shows a Los Angeles Police officer wearing an on-body cameras during a demonstration for media in Los Angeles  (Source:AP Photo/Damian Dovarganes, File)

Governments must bear the costs of redacting police body camera video before making it public, the California Supreme Court ruled Thursday in a decision that was hailed by media organizations and will be costly for cities and counties.

The court unanimously rejected the city of Hayward's attempt to charge the National Lawyer Guild's San Francisco Bay Area chapter more than $3,200 for excerpts of video taken by police officers who helped respond to demonstrations in Berkeley in 2014.

The demonstrators were protesting grand jury decisions not to indict police officers in the deaths of two unarmed black men, Eric Garner in New York City and Michael Brown in Ferguson, Missouri.

Allowing governments to charge for editing the footage would have threatened public access to all electronic records, the Reporters Committee for Freedom of the Press and 33 media organizations said in a friend-of-court brief.

The groups argued that those fees would have deterred access to materials needed for public oversight of law enforcement.

Jim Ewert, general counsel for the California News Publishers Association, called it "one of the most important Public Records Act cases that has been handed down by the Supreme Court in a while." A ruling otherwise risked creating "insurmountable obstacles to the public's right to know," he said.

The decision came as police in California and elsewhere responded to protests over the death of another black man in police custody — George Floyd in Minneapolis.

The California justices reversed an appeals court decision that held the city could charge for its editing costs.

"If that had become the law of the land it would have been very problematic," said David Snyder, executive director of the First Amendment Coalition. He called the high court's ruling "a great decision for government transparency and accountability."

Hayward city officials declined comment, said spokesman Chuck Finnie. Spokeswomen for the League of California Cities and the California State Association of Counties did not immediately comment.

Hayward had sought to recover its costs for the roughly 40 hours it took employees to gather and edit six hours of video to remove information it contended was exempt from public disclosure, such as personal medical information and law enforcement tactical security measures.

State law already bars governments from charging to redact portions of written records, and the justices ruled that the same rule applies to electronic records.

"In video-editing terms, what (the city employee) did was not substantively different from using an electronic tool to draw black boxes over exempt material contained in a document in electronic format," Associate Justice Leondra Kruger wrote.

Ruling otherwise, she said elsewhere, would mean "an agency could charge for the time spent redacting an electronic version of a document even though it could not charge for time spent redacting a hard copy of the very same document."

Redaction costs otherwise "could well prove prohibitively expensive for some requesters," she wrote, while acknowledging that the decision means higher costs for governments with limited resources.

Associate Justice Mariano-Florentino Cuéllar, in a separate concurring opinion, said evolving technology is likely to significantly reduce those processing costs over time.

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