The California Supreme Court recently issued an opinion that analyzes the public disclosure of police body camera footage and demonstrates the overlap between e-Discovery processes and other records production schemes.
The opinion, National Lawyers Guild v. City of Hayward [https://www.courts.ca.gov/opinions/documents/S252445.PDF], interprets a California law regulating government transparency, but the Court’s technological discussion may also interest ACEDS professionals and like-minded e-Discovery practitioners.
The Court analyzes a California Public Records Act (PRA) provision that permits governments to charge a fee for “data compilation, extraction, or programming” when producing electronic records in response to a records request.
In National Lawyers Guild, the City of Hayward redacted police body camera footage taken during a protest over grand jury decisions to not indict the police officers involved in the deaths of Eric Garner and Michael Brown, both unarmed African American men. The City claimed that redaction qualified as data “extraction” because the police needed to take out sensitive medical and police tactic information. The National Lawyers Guild, which requested the footage, disagreed, and argued that “extraction” only applied when the government agency was creating new content from existing records. The Court sides with the Guild.
The Court held that data “extraction,” as used in the PRA at California Government Code section 6253.9, does not apply to records redaction, but, instead, relates to record identification. Applying the Court’s holding to the Electronic Discovery Reference Model (EDRM), data “extraction” takes place during records Collection, instead of records Review.
The PRA and the e-Discovery processes are parallel practices. According to the Court in National Lawyers Guild, “[b]efore providing access to requested records [under the PRA], public agencies need to locate and collect records, determine which records are responsive, determine whether any portions of responsive records are exempt from disclosure, convert the records into a reviewable format, and, if requested, create a copy of the record.” Translating this into EDRM terminology, public agencies must perform Identification, Collection, Processing, Review, Analysis, and Production, and most of this process must be performed as a cost of doing business.
The Court states that their opinion was promoted by the unique issues associated with producing electronic records. California Government Code section 6253.9 recognizes that the production of electronic records should be easier than paper records, but acknowledges the “difficulties associated with retrieving responsive data from massive, potentially intractable databases,” according to the Court. E-Discovery professionals face similar hurdles.
Practitioners in both areas of the law are tasked with complex productions, prompting technological solutions. Justice Cuellar devotes his concurrence to these automated antidotes.
He writes, “Imagine a not-so-distant future when government entities deploy more thoroughly automated, artificially intelligent systems for responding to [public records] records.” He predicts that, “[s]uch technology could readily help agencies be more accurate, efficient, and thorough.”
Some local agencies are turning to technology to assist with records collection and production. Companies like GovQA and JustFOIA help with this type of processing. But what Justice Cuellar may be hinting at is records review on a whole other level, such as Technology Assisted Review or TAR.
Justice Cuellar optimistically suggests that these types of advanced tools may qualify for the fee provision in California Government Code section 6253.9, permitting governments to recoup some of the costs, although this issue was not before the Court in National Lawyers Guild. If so, local agencies could be incentivized to invest in some of the same platforms that E-Discovery professionals are using, such as TAR. This would be a welcome development.
Government agencies increasingly use technology to provide services and expand communications to their constituents, creating electronic records that are publicly disclosable, such as body cameras, databases, and social media, to name a few. At the same time, records requests have become ubiquitous and incredibly complex. As shown in National Lawyers Guild, e-discovery practices could help government agencies to response more efficiently to PRA requests.
