I’d like to inquire as to the public’s right of access to public records which contain some information an agency either must or may redact. Specifically:
- May the public demand access to records and use their own equipment to reproduce or image (e.g. camera, scanner) the records?
- May an agency charge a fee for access to records if no copy/reproduction is requested yet the agency must or chooses to redact some information from the responsive record(s)?
- If the public must pay a fee for simply accessing and viewing records, may county governments charge more than the direct cost of reproducing the records? (Following that, and along the lines of [1], since search and retrieval costs are not allowed, may the agency charge to redact data in order to provide the public access to public records?)
- What are allowable costs for reproduction of public records?
A: There is not a great deal of authority on the situations in which an agency may charge members of the public under the PRA.
It is clear, as you know, that 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).
It would seem to follow that a member of the public who does not request a copy of a record should be able to use his or her own equipment to make a copy of a record that he or she is inspecting. (It should not be the privilege of walking away with a copy of a record that the public is paying for — rather, under North County Parents, simply what it actually costs the agency to make the copy.)
Of course, there could theoretically be legitimate reasons for barring personal copying/scanning equipment (though none spring immediately to mind), but the PRA would seem to require the agency to make its case for that reason and not simply impose such a rule with no asserted justification.
There is no clear answer on whether the agency may impose some kind of charge for redacting a document as a cost of duplication. There is certainly merit in the argument that such redaction is not part of the direct cost of duplication, but we don’t know of a court decision addressing this issue.
But the question you raise is even more attenuated. That is, if the public asks only to inspect, may the agency impose a fee on the theory that it must redact information and that duplication is required in that process.
Again, there does not seem to be any authority on this point, but such a position would certainly seem counter to the underlying principles — if not the letter — of the PRA. Based on the plain language of the PRA (see below), it would seem to be the agency’s responsibility to “delet[e]” whatever “portions” of the record it claims are exempt, without any cost to the requester, especially since the cost language only comes in when there has been “a request for a copy of records.” Gov’t Code § 6253.
(a) Public records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as hereafter provided. Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.
(b) Except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so.
Cal Gov Code § 6253(a), (b)
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