Q: I received a cost breakdown from a California state agency, which proposes to charge me more than $2,000 to produce what is essentially a list of names. Much of the cost involves redaction.
Initially, the cost was presented to me as “programming costs,” which are allowed for electronic records, but their cost breakdown covers mostly staff time for a massive redaction effort. Could I get advice on whether they are abiding by the Public Records Act?
A: As you are aware the Public Records Act generally permits an agency to bill a requester only for the direct costs of duplication, but not for searching for or otherwise preparing the records for duplication. Cal. Govt. Code section 6253(c); North County Parents v. DOE, 23 Cal. App. 4th 144 (1994).
However, as you are also aware, there is an exception when the request requires the agency to create a record from an electronic database. In such a case, the agency may further charge the requester for the costs of data compilation, extraction, and any required computer programming. Govt. Code section 6253.9(a),(b).
I am not aware of any court having decided whether or not the costs of redaction may be included. So we have only the precise language of the statute as guidance:
(b) . . . the requester shall bear the cost of producing a copy of the record, including the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record when . . . (2) . . the request would require data compilation, extraction, or programming to produce the record.
Because the law specifically contemplates that responsive data will be extracted from other information in a database, it is perhaps not surprising that the redaction issues has not come up before.
Typically what the data that would be subject to redaction would simply not be extracted. Given that, I am inclined to believe that as a general matter, redaction done by way of “computer programming and computer services” would be considered akin to extraction as thus a permissible cost to pass on to the requester. However, the answer probably does depend on the specific situation.
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