Does an email search qualify as “data compilation” under CPRA?

Answer

The agency’s contention that the data compilation provision allowing fees for these tasks applies to its search for emails is, indeed, novel.  Looking at the plain text of Gov’t Code § 6253.9(b)(2), it is clear that such fees for the production of records disclosable under the Public Records Act are permitted only in two specific situations, i.e.:
(1) In order to comply with the provisions of subdivision (a), the public agency would be required to produce a copy of an electronic record and the record is one that is produced only at otherwise regularly scheduled intervals.
(2) The request would require data compilation, extraction, or programming to produce the record. Gov’t Code § 6253.9(b).  Under this provision, an “agency may charge ‘the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record…’” Cty. of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1336 (2009) (citing Gov’t Code § 6253.9(b)).

It does not seem that coming up with a simple word search for the emails that you are seeking under the PRA amounts to the type of programming and data extraction that this particular provision was intended to cover.

You might want to write back to the agency and ask for a detailed description of specific tasks falling within § 6253.9(b) that it must perform to search for the records you have requested, and the costs associated with those tasks.  More than likely, the tasks the agency is claiming it must perform will not fit within the costs allowed under § 6253.9(b) – something you can bring to the agency’s attention in follow-up correspondence.

You might also want to remind the agency that it is under a duty to “[p]rovide suggestions for overcoming any practical basis for denying access to the records or information sought,” Gov’t Code § 6253.1(c)(3), and that “nothing in this chapter shall be construed to permit an agency to delay or obstruct the inspection or copying of public records.”  Gov’t Code § 6253(d).

Finally, you could also gently remind the agency that should you be compelled to bring a lawsuit to enforce your request, the agency will be required to pay your attorney’s fees. Gov’t Code § 6259(d).

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.