Thursday, May 28, 2020

California Supreme Court Clarifies That Local Governments Are Responsible for Redaction Cost of Electronic Records Requested Under the California Public Records Act.

Today, in a critical decision, the California Supreme Court ruled that the government entities are responsible for redaction cost when producing electronic records under the California Public Records Act.

Redacted: What is redaction and why are some documents censored ...
In National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward, et al. (2020) 2020 WL 2761057, the State’s highest court examined the costs provisions of the California Public Records Act (CPRA).  Under the CPRA, a person who requests a copy of a government record must pay only the costs of duplicating the record, and no other additional costs, such as the costs of redacting material that is statutorily exempt from public disclosure. However, there is a special cost provision that is specific to electronic records. That provision, (Government Code Section 6253.9(b)(2)) says that in addition to paying for duplication costs, requesters must pay for the costs of producing copies of electronic records if producing the copies “would require data compilation, extraction, or programming.”
Using that provision, the City of Hayward sought to charge the National Lawyers Guild of San Francisco for approximately 40 hours its employees spent editing out exempt material from digital police body camera footage requested by the Guild. The City claimed that these costs were chargeable as costs of data “extraction” under Government Code Section 6253.9(b)(2)).

However, the Supreme Court made it clear that “extraction” was not synonymous with “redaction.” After a lengthy historical discussion of the term “extraction,” the Supreme Court held that “as a practical matter, reading section 6253.9(b)(2) to cover the costs of redacting electronic records would create peculiar distinctions between paper records and electronic ones. It would mean, for example, that an agency could charge for the time spent redacting an electronic version of a document even though it could not charge for time spent redacting a hard copy of the very same document. Given that section 6253.9 was enacted in large part to provide a less expensive alternative to paper production, an interpretation that would allow agencies routinely to charge requesters more for the electronic version seems unlikely.”

Here it is important to note that the City of Hayward argued that requests for body camera footage present unique concerns for government agencies with limited resources. Although the Court admitted that redacting exempt footage can be time-consuming and costly, it concluded the “unique burdens associated with producing body camera footage warrant special funding mechanisms is a question only the Legislature can decide.” However, the Court did leave open the possibility that agencies with limited resources could recover their costs when a third-party is charged with the task of data compilation. These third-party costs could be considerable for requestors such as the National Lawyers Guild

Tuesday, May 19, 2020

Watch David E. Mastagni Argue Over Vested Pension Rights Before The California Supreme Court


On May 5, 2020, the California Supreme Court heard oral arguments via video-conference in the much anticipated appeal over whether promised pension benefits are vested rights protected by the U.S. and California Contracts Clauses.  (Alameda County Deputy Sheriffs' Association et al. v.Alameda County Employees' Retirement Association et al., S247095

Arguing on behalf of the Alameda County Deputy Sheriffs’ Association, David E. Mastagni explained how the County of Alameda recruited deputies by promising that if the deputies devoted 30 years of service in law enforcement, the County would provide them substantial deferred compensation in the form of a pension calculated as a percentage of their "compensation earnable."  The County promised to apply the definition of "compensation earnable" that was established by a court approved settlement order in 1999.  In 2012, Governor Brown signed into law PEPRA, which reduced this promised pension formula by over 15%.

David detailed how the Contracts Clause was enacted after the Revolutionary War to protect Americans from legislatures changing the rules after the fact and to promote stability of contracts.  He argued the federal and California Contracts Clauses are as relevant now as they were in the eighteenth and nineteenth centuries, as shifting political opinions and policy goals can make it seem attractive to raid pre-existing, long-term financial obligations whenever the state wants to spend money on priorities. 


Wednesday, May 13, 2020

Listen: Radio Host John McGinness Interviews David E. Mastagni Regarding His Arguments in the Supreme Court Over Public Pensions

On May 12, 2020, retired Sheriff John McGinness interviewed David E. Mastagni on his KFBK radio show regarding David's arguments before the California Supreme Court on May 5, 2020, over the fate of the "California Rule."  David explains why the Contracts Clause of the United States and California Constitutions protects property rights by preventing local and state governments from passing legislation to impair financial terms of contracts they enter, including pensions.  The interview also explains the deferred compensation (in the form of a pension) promised to the Alameda Deputy Sheriffs in exchange for their years of service to the public, as well as the State's efforts to break those promises after the fact.

Tuesday, May 12, 2020

Mastagni Holstedt Presents 10 Hour Training: New Use of Force & SB 1421 Standards

 This free webinar is open for peace officersOnline registration is required.  Mastagni Holstedt, APC was privileged to work with PORAC to advocate for law enforcement during the passage of recent legislation affecting peace officers across the state.  Don’t miss this exciting opportunity to learn about important new laws, gain in-depth analysis of what changed and what did not, and how to protect your legal rights in this rapidly changing political environment.  This training also includes an overview of S.B. 1421 / A.B. 748, legal developments over the last year and practical advice on how to protect your privacy rights.  This training provides vital information association leaders need when negotiating departmental use of force policies and critical incident protocols.

The Alameda County Deputy Sheriffs’ Assn. and Mastagni Holstedt, APC, are proud to present a free 10-hour, POST accredited webinar training for peace officers on June 2nd and again on June 4th, 2020, covering:

  • Use of Force After A.B. 392 & S.B. 230: New Standards & Policies (7:30-11:30 am)
  • Fitness, Health and Wellness of the Tactical Athlete (12:30-2:30 pm)
  • The Continuing Battle Over Disclosure of Police Records After S.B. 1421 (2:30-4:30 pm)
  • Update on Peace Officer Discovery Under Pitchess (4:45-6:45 pm)

Registration closes: May 28, 2020

Registrants MUST INCLUDE your name, email, cell phone number, job title, employing agency, POST ID number (to receive POST Credit), and the dates you wish to attend.

Click Here to Register

Please note:
This is a remote course hosted through Zoom. Individual access to a computer with internet is required to attend. Registrants will be sent an email with a link to course materials and meeting invite prior to the course.

System Requirements:
Use to test your internet.
PING should be less than 100ms
Download and upload 2MBps or higher
Audio required for breakout groups 

Wednesday, May 6, 2020

Governor Newsom Signs Executive Order Clarifying COVID-19 Is A Presumptive Injury

Today, Governor Newsom signed Executive Order N-62-20. This critical order creates a rebuttable presumption that California’s essential employees who contract COVID-19 did so in the course and scope of their employment if certain requirements are satisfied and thus are eligible for workers' compensation benefits.

Coronavirus - HSA - Stanislaus CountyThe presumption, which is disputable by the employer, pertains to employees that have tested positive or been diagnosed by a licensed physician with COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment, or at the employer’s direction – but not at the employee’s home or residence. In addition to first responders and health care workers, the new executive order also covers other employees who are working during the COVID-19 pandemic.

Under the Order, the presumption will be in place for the next 60 days and covers claims dating back to March 19, 2020.  Once a COVID-19 claim has been filed, the employer will have 30 days to determine whether to accept or deny the claim. The presumption should eliminate most of the causation fighting that is currently happening between the workers’ compensation insurance carriers, third party administrators and those seeking benefits under the California Workers’ Compensation system. However, it is unclear at this time whether employers will make an effort to challenge this order.

Workers’ Compensation benefits may include medical treatment; temporary disability (or salary continuation under Labor Code section 4850 for public safety) so long as the employee is certified for temporary disability by the treating physician; permanent disability; and/or dependency death benefits. If you are someone you know has tested positive or was diagnosed with COVID-19 within 14 days of performing labor or services at the employee’s place of employment please contact the law office of Mastagni Holstedt for assistance in pursuing workers’ compensation benefits

Tuesday, May 5, 2020

California Supreme Court Hears Oral Arguments In Seminal PEPRA Case

Today, attorney David E. Mastagni appearing for Alameda County DSA, argued in favor of protecting public employees’ pensions from significant reductions following the State’s enactment of PEPRA.  PEPRA sought to dramatically reduce and redefine what items of compensation could be included in an employees’ final pension calculation.  The case came to a head today after nearly seven years of litigation in the superior courts and court of appeal. 

The court focused largely on the issue of the contract’s clause, which provides protections to parties to a contract under the California Constitution.  As Chief Justice Cantil-Sakauye commented, Mr. Mastagni “ably” argued that public employees have a vested contractual right to their pension benefits.  “Financial savings are never a sufficient excuse to impair employment contracts because the government can always find new ways to spend money,” said David. 

The State argued, “The law was clear that pension spiking was illegal prior to PEPRA.”  David E. Mastagni quickly identified that “pension spiking” is a highly political term and that employees accepted jobs based on promised benefits that were later unilaterally taken away by the legislature.   

The court took the matter under submission.  Their decision will have major impacts on public employment pension benefits for employees across the state.  Video of today’s oral argument will become available on the Supreme Court’s website here -

David's oral arguments were widely covered by the L.A. Times, Cal Matters, Courthouse NewsBond Buyer, and SacBee