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A&A: Can Agency’s Be Required to Choose Least Costly Format for Electronic Record Reproduction?

Q: Are California public bodies required to use the least costly method reasonably available to them for duplicating and (if separate) for transferring records responsive to a CPRA request?

Is there case law on that question?

Context: I am a frequent requestor of video records from agencies across all levels of government and across the country, under various open records laws. I recently got a Dropbox Business account which allows me to create as many “file request” links as I would like. Anyone who has the URL for a file request is able to upload files directly to a unique folder in my Dropbox Business account. The account can handle individual files up to 20 GB in size and is capped at to 5 TB of data. That’s a boatload.

Additionally, agencies can upload responsive records without signing up for an account and without providing any information. It’s hard to make a security argument against it, too, as all responsive records can be uploaded without downloading anything to agency computers. Information flows in one direction.

When I can get public bodies to upload responsive records using a file request link it’s a huge win. There’s no wait once files are identified, there’s no back-and-forth about reasonableness of DVD or whatever duplication fees, mailing fees, etc.

Of course, regardless of the CPRA’s requirements, it’s no secret that some public bodies are fond of using fees to discourage requesters. Understandably, those same agencies are very reluctant to join the 21st century and transfer electronic records electronically. And that’s the context for my question.

A: It sounds like you are already familiar with the requirement that agencies must produce records to requesters in the format in which they are maintained, per Government Code § 6253.9.  Unfortunately, I am not aware of a requirement that would further require the agency to deliver electronic records to you via a method such as the one you describe.  That said, if the electronic records are given to you using some media device, such as a flash drive or DVD, under the Public Records Act, the agency can only recover the “direct costs of duplication, or a statutory fee if applicable.”  Govt. Code § 6253(b).

In the paper world, the “direct cost of duplication” was interpreted to mean what it would cost to run the copy machine (i.e., what a copy shop might charge on a per-page basis).  In the digital world, the “direct cost of duplication” would seem to only encompass the cost of the DVD or flash drive and the minimal amount of time it takes to transfer the requested records onto the flash drive.  The agency cannot charge you for ancillary tasks necessarily associated with the retrieval, inspection and handling of the file from which the copy is extracted.

I am sorry I could not give you a better answer, but unfortunately I do not read anything into the PRA that would require the governmental agency to use third-party technology to reduce both costs and the time it takes to produce copies of records responsive to a PRA request.

Bryan Cave Leighton Paisner 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.  No attorney-client relationship has been formed by way of this response.

 

LEILA KNOX
Associate
leila.knox@bclplaw.com
T: +1 415 268 1949

From: Jay Horowitz [mailto:openrecords@protonmail.com] Sent: Tuesday, March 27, 2018 4:41 AM
To: Hotline@firstamendmentcoalition.org
Subject: Legal Hotline

From: Jay Horowitz
Subject: Choice of format for electronic record reproduction

Message Body:
Name: Jay Horowitz
Email: openrecords@protonmail.com
Address: 9830 S. Nogales Hwy, Unit 1, c/o James Ballew
City: Tucson
State: AZ
Zip: 85756
Business: n/a
Phone: –
Are you a member of FAC?:No
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How did you find out about the Legal Hotline? FAC Member

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