Wednesday, November 14, 2018

Court Rules Agencies May Charge for the Costs of Extracting and Redacting BWC Video in Case with Significant Post S.B. 1421 and A.B. 748 Implications

On September 28, 2018, a California Court of Appeal found that the costs associated with extracting and redacting exempt material from body worn camera ("BWC") videos requested under the California Public Records Act  may be charged to the requester.  S.B. 1421 and A.B. 748 mandate that starting in January and July of 2019, respectively, law enforcement agencies must release previously exempt BWC footage of certain critical incidents.  In light of the anticipated flood of requests for BWC videos resulting from the enactment of these statutes, this ruling provides clarity regarding the ability to recovery the significant costs, including the personnel time, associated with extracting and redacting BWC video footage.

In NationalLawyers Guild, San Francisco Bay Area Chapter v. City of Hayward, the non-profit group National Lawyers Guild requested public records from the City of Hayward relating to a demonstration held in Berkeley in December 2014. The demonstration was to protest recent allegations of police violence. The request included numerous documents and police body camera videos. The City had to review the videos and redact all exempt material, which required using a third-party software with audio/video editing capabilities.  The City sent the Guild an invoice for $2,939.58 seeking reimbursement for the time spent by the employee in editing and redacting the videos and for employing the software. The City also offered for the Guild to view the videos free of charge.

The Guild paid the invoice and brought an action seeking relief in the form of a refund and to release a second set of videos they had requested. The trial court concluded that section 6253 and 6253.9 do not permit the City to charge the Guild for costs incurred in making a redacted version of a public record.

The Court of Appeal reversed, and analyzed the statutory language and legislative history of section 6253.9(b) to determine what “extraction” meant. Section 6253.9(b) requires the requester of the information to bear the cost of production for certain records. Section 6253.9(b)(2) includes the “data compilation, extraction, or programming to produce the record.” The Court had to determine whether extraction meant taking “exempt material out of a digital file in order to allow a record to be produced” versus when the “request would require data compilation, extraction, or programming to produce the record.” That is, making a redacted version of an existing record would not amount to “extraction,” only the creation of a new record.  

The Court concluded that based on the legislative history, lawmakers were aware of the costs of redacting exempt information. Thus, they drafted 6253.9(b) to expand the circumstances when an agency may be reimbursed when it must incur costs to extract exempt material from public records. Therefore, 6253.9(b) includes the cost of extracting exempt material from video recordings with the aid of special computer programming and the Guild was required to bear the cost.

Monday, November 12, 2018

Appellate Court Holds San Francisco Police Department Does Not Have to Meet and Confer Over Restrictive Force Policy

The First District Court of Appeal denied the San Francisco Police Officers' Association's petition to compel arbitration of the POA's grievance challenging the City’s refusal to further meet and confer before adopting and implementing a revised use of force policy.  The appellate court held such policies to be a fundamental managerial and policy decision and held the even the implementation of the policy is not subject to negotiation.  The court did note that no pre-implementation effects bargaining issues existed because the parties had already negotiated over and resolved issues pertaining to training and discipline. 

The San Francisco dispute arose in 2015 when the city tried to change its policies on arrests and shootings.  Although the city agreed to meet with the union, the union objected to several proposed changes.  Specifically the union disagreed with the city’s decision to outlaw “carotid holds” (neck holds) and shooting at moving cars.

The California Meyers-Milias-Brown Act (MMBA) requires public employers to negotiate before making changes that impact wages, hours, and working conditions of employees.  The MMBA seeks to promote problem-solving between employees and employers.  When the City decided to unilaterally implement its revised force policy, the POA filed a grievance to enforce its bargaining rights.  The grievance raise 3 issues: (1) did the City have a contractual obligation to negotiate any aspect of the use of force policy; (2) if so, did that obligation extend to negotiating about the elimination of the carotid restraint and prohibition on shooting at a moving vehicle; and (3) if so, did the City fail to negotiate in good faith by its refusal to reduce to writing agreements it made during negotiations regarding these two issues.

Relying on the 40 year old San Jose decision, the court held use of force policies are a management right, thus the city was not required to negotiate with the union before changing the policies.  Quoting San Jose, the court held the dispute was not subject to arbitration: “The power of a city to enact and enforce regulations relating to the use of firearms by police officers is in the exercise of the police power granted by article XI, section 7 of the California Constitution, which a governmental agency may not suspend, bargain or contract away....”