Tag Archives: National Lawyers Guild v. City of Hayward

Here Are Copies Of Many Of The Pleadings Filed With The California Supreme Court In The Monumentally Important California Public Records Act Case National Lawyers Guild V. City Of Hayward — It’s Extraordinarily Difficult To Get Copies Of Appellate Pleadings In California But I Found A Way To Do It — Which Is Also Explained Here If You’re Interested

August 10, 2019 Mike Leave a comment

The California Public Records Act generally mandates that every person has a right to take a look at any public record at no cost. Agencies are explicitly not allowed to charge requesters for the time it takes to search for records, organize them for inspection, or review and redact them for exempt information. The one major exception to this has to do with records stored in computers that require programming to extract information responsive to a request.¹

For instance, in Los Angeles, the City Attorney maintains an SQL database of all its prosecutions. The database itself evidently contains too much data for it to be practicable for humans to review the whole thing for exemptions and produce it in its entirety. But the contents are inarguably public records, so to get access to them it’s necessary to run a query against the database. This must be written in SQL and the law allows the agency to charge the requester for the time it takes to write and run the query.

Although I do not particularly like this section of the law I can see the need for something like it. The CPRA does not in general require agencies to create new records in response to requests but in this case it has to or the public would be denied access to information in databases that were too big to review, among other records and it’s at least possible to argue that someone needs to pay for the construction of these new records. This process, by the way, is known as “extraction” in CPRA circles.

So in 2015 the National Lawyers Guild San Francisco Chapter asked the City of Hayward for access to some cop videos and the City said not only did they have to redact the videos but that video redaction required special software and thus it constituted extraction and could therefore be billed to the requester. The cost was in the thousands of dollars, which the NLG paid under protest and then filed a petition asking for a refund on the theory that the charge was illegal under the law because redaction is not extraction.

The NLG won in Superior Court, the City appealed the ruling and won in Appellate Court, and the case is now before the California Supreme Court. The case is now fully briefed and we’re just waiting for oral arguments to be scheduled. You can sign up for notifications at this link, but unlike many courts, it seems that the California Supreme Court does not publish copies of pleadings filed with it until after the Court rules on a case.

Which has been driving me absolutely crazy because this case is so important and reporters, even good ones,² consistently get the facts wrong when writing about legal matters. There is no substitute for reading the primary sources. I’ve been reduced to writing begging emails to various lawyers pleading for PDFs. And occasionally they give them to me and I write about them.³

But on Thursday I made a huge breakthrough! I was downtown for various reasons and stopped in at the County Law Library to read cases on Westlaw and I learned that they collect appellate pleadings on their site, including ones from the California Supreme Court. I looked and they did in fact have PDFs of everything filed in this monumental case! And I could read it at the Law Library computer.

Now, generally Westlaw is very good about giving copies things to users. Like past published decisions are no problem, just click a button and put in your email address and it will send you a PDF of any published opinion. So I selected all these and hit the button and told it to email and …. got a damn error message saying that these PDFs were restricted and could only be printed on paper.

Which isn’t acceptable for any number of reasons, not least because there are hundreds of pages involved and it costs money to print on paper. This is not to mention the fact that it destroys the OCR and redoing the OCR invariably introduces errors. It’s horrible. But I fooled around some more and it turns out that when viewing the PDF on the library computer it’s possible to save a local copy.

Then, because the library is kind enough to provide access to a full-featured browser, it’s possible to upload the saved PDFs to a cloud service or something similar, and get copies that way. Or log into an email account and mail them to oneself as attachments So I did something like that, and got 18 new files, and published them all on Archive.Org for you right here! And also here is a list of the whole collection with links and brief descriptions.
Continue reading Here Are Copies Of Many Of The Pleadings Filed With The California Supreme Court In The Monumentally Important California Public Records Act Case National Lawyers Guild V. City Of Hayward — It’s Extraordinarily Difficult To Get Copies Of Appellate Pleadings In California But I Found A Way To Do It — Which Is Also Explained Here If You’re Interested →

Lawsuits, Public Records Act Pragmatics

A Coalition Of Poverty-Focused Community-Driven Advocacy And Legal Aid Organizations Filed An Amicus Brief With The California Supreme Court Asking That They Review The Abominable Court Of Appeals Opinion In National Lawyers Guild V. City Of Hayward — Which Held That Agencies Can Charge For Time Spent Redacting Electronic Records — Now Being Used By The LAPD To Functionally Deny Everyone Access To Emails — This Was In November 2018 But I Just Recently Got A Copy — The Supremes Did Agree To Hear It — And I Also Have A Copy Of The Stunning Opening Brief

May 18, 2019 Mike Leave a comment

Don’t know if you’re aware, but in September 2018 the California Court of Appeal held that local agencies could charge CPRA requesters for staff time for redacting electronic records. In particular, the City of Hayward charged the National Lawyers Guild more than $3,000 to redact some parts of bodycam videos. It’s well-established for paper records that agencies must allow inspection at no cost and if copies are requested, can charge only the direct cost of copying.

The Court of Appeals based its opinion on the CPRA’s much-abused §6253.9(b)(2) which states that an agency can charge a requester for the bare privilege of inspecting a record under a small set of very specific circumstances:

… 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 … [t]he request would require data compilation, extraction, or programming to produce the record.

The court’s reasoning was that redaction of a video constitutes extraction required to produce the record. Sane people can see, however, that the video already exists. Nothing is required to produce it. This section is talking about e.g. running queries against databases, where the requester only wants certain information and the results of the query constitute a new record that “would require data compilation, extraction, or programming to produce.”

And as you can imagine, after this opinion was published, obstructionist anti-CPRA lawyers all over the state started drooling on their pillows in glee. For instance, Carol Humiston, the soon-to-be-disbarred Rasputinian ear-whisperer to transparency-averse business improvement districts all over Los Angeles, advised her clients on the basis of this decision to assert that if I wanted to see any more of their damn emails I would have to pay for them to buy Adobe Pro so that they could redact them.

She backed off on this outlandish claim after I pointed out repeatedly that emails weren’t found in the wild as PDFs so that there was no case to be made for purchasing an expensive PDF editor to do a job that the built-in text editors that come with every computer operating system could do better. However, the LAPD also glommed onto this case, and the City Attorney’s office began theorizing madly, and now if you submit a request to LAPD for emails through NextRequest you’re met with an aggressive notice warning you that you’re going to pay and pay and pay unless you withdraw your request right now, and the notice explicitly cites the case.

So yeah, this opinion sucks and sucks big time, and it doesn’t just suck in theory, it’s actively sucking in practice even now as I write these very words. But at least it was appealed to the California Supreme Court. And at least the Supreme Court agreed to hear it. And papers have been filed, but it turns out to be really hard to get pleadings out of the Supreme Court.

But recently I was lucky enough to obtain a couple of interesting items. Here’s an amicus letter from a coalition of public interest law firms and activist organizations explaining the harm that the decision is doing. And here’s the opening brief, which explains in well-reasoned and exceedinly convincing terms why the Court should reverse this extraordinarily bad appellate decision. Both are fabulously worth reading, and there’s a transcription of the amicus letter after the break.
Continue reading A Coalition Of Poverty-Focused Community-Driven Advocacy And Legal Aid Organizations Filed An Amicus Brief With The California Supreme Court Asking That They Review The Abominable Court Of Appeals Opinion In National Lawyers Guild V. City Of Hayward — Which Held That Agencies Can Charge For Time Spent Redacting Electronic Records — Now Being Used By The LAPD To Functionally Deny Everyone Access To Emails — This Was In November 2018 But I Just Recently Got A Copy — The Supremes Did Agree To Hear It — And I Also Have A Copy Of The Stunning Opening Brief →