A&A: Agency charging $2k for redacting electronic records

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.  Are they abiding by the Public Records Act?

A: 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.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

One Comment

  • Computer programming costs can vary widely. If the data sources are properly designed, a lot of it could be done at very low cost. If someone is trying to impose a cost of $2000, they should be forced to justify the estimate by identifying how many databases and data tables or files need to be accessed to provide the individual items within the requested records, with information on the types of databases and/or files. This data might make it possible to reduce the scope of the request by eliminating items in less accessible locations to cut the cost. In many cases, the redaction could be accomplished simply by omitting sensitive data fields such as names and addresses from a database query. Such queries themselves are often very easy to program, for example:
    SELECT COUNT(SexOffenders) FROM table_name WHERE State = ‘CA’ ORDER BY ZipCode

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