A Tale of Two Cases: Cost Recovery for Public Records Act Responses and the Use of AEDs

The appellate courts in California were busy last week as they issued a number of opinions. Below are brief summaries of two such cases that impact public entities.

National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward, 2018 Cal.App. LEXIS 878

The Guild served a public records request on the City of San Francisco seeking documents in 11 different categories relating to a demonstration held in Berkeley in December 2014 to protest recent incidents of police violence toward private citizens. In response, two City employees spent over 170 hours compiling, reviewing, and redacting information from documents and police body camera videos. Thereafter, the City sent the Guild an invoice for $2,939.58 seeking reimbursement for certain costs incurred by its employees in copying and redacting the videos for production. The Guild paid the invoice under protest and, after reviewing the videos, submitted another request for more body camera videos. The City complied with this request offering and offered to produce the videos for a charge of $308.89 to cover certain production costs. The Guild decided not to pay this amount and instead filed a lawsuit requesting reimbursement of the prior payment and an order that the second set of videos be produced for no more than the direct costs of production. The trial court ruled in favor of the Guild and this appeal ensued.

The Appellate Court noted that the California Constitution provides California citizens with a protected right of access to information concerning the conduct of the state’s business. However, the California Public Records Act provides some exemptions to protect privacy interests. California Government Code section 6253(a) requires an agency to produce records if only part of a record is exempt and if the private information can be segregated from the information to be produced. Government Code section 6253(b) requires a public agency to make non-exempt records available “upon payment of fees covering direct costs of duplication….” Government Code section 6253.9(b) provides that when electronic records are requested, an agency can recover specified ancillary costs in either of two cases including when compliance would require “data compilation, extraction, or programming to produce the record.” Under such circumstances, the 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.

After analyzing the word “extract” and examining the legislative history of section 6253.9(b), the Court held that taking exempt material out of a digital video recording in order to allow for production is a form of data extraction that is reimbursable.

Takeaway: If someone submits a public records request that will require the production of electronic records such as body camera or dashboard camera recordings, then the entity can invoice the requestor for time expended by entity personnel extracting exempt materials from the video recordings as well as costs incurred to acquire computer software necessary to complete the task.

 

Jabo v. YMCA of San Diego County, 2018 Cal.App. LEXIS 880

Automatic external defibrillators (AEDs) are routinely a subject of discussion in the California legislature. During each of the past two legislative sessions, bills were introduced regarding AEDs. This case addresses the question of whether an entity’s possession of an AED creates additional statutory or common law duties on that entity to ensure that its trained staff members use the AED when a person on-site appears to be having a cardiac incident.

Here, the decedent, 43- year-old Adeal Jabo, died of sudden cardiac arrest after playing soccer in a recreational league whose games were held at Defendant’s field. The Jabo family brought a wrongful death suit arguing that the YMCA’s scorekeeper was away from the field when Adeal collapsed and had also failed to bring one of the facility’s five AED devices to the field that evening. The YMCA’s policy was to have staff members check out and bring an AED to the field for the YMCA’s scheduled games. The same process should have occurred for the private rental that occurred when Adeal collapsed, but the game did not make it onto the AED checkout list due to staff error. The trial court granted summary judgment for the YMCA and Plaintiffs appealed.

In evaluating the duty of care owed by the YMCA as an operator of a sports facility, the Appellate Court found that the YMCA has a limited duty to use due care “not to increase the risks to a participant over and above those inherent in the sport.” While California Health and Safety Code section 1797.196 was enacted to encourage businesses to provide AEDs for emergencies, it does not require their purchase. In evaluating this case where an AED was available at the YMCA, just not at the field, the Court states that where a sports facility operator “…supplies AEDs on its premises, it does not become a comprehensive provider of emergency medical care.” Moreover, the Court noted that 1797.196 does not require acquirers of AEDs to provide AED training to all employees, nor does it require a mandatory supply of an AED at each location and event held on the acquirer’s facility.

Moving to another theory of liability, the Appellate Court found that Plaintiffs could not prevail on a negligent undertaking claim in this case. Plaintiffs argued that since the YMCA had AEDs and trained staff on their use, the YMCA made a false representation that it was providing a safe facility for sporting events such as the one Adeal participated in. The Court rejected this argument finding that the YMCA’s enactment and implementation of AED rules and policies did not create a duty on its part to ensure the safety of all adults who used of the soccer field. Moreover, the Court rejected the argument that the employee’s failure to use an AED on Adeal increased the risk of his death. Further, Plaintiffs failed to show that Adeal or other persons who used the premises relied, to their detriment, on the facility having a certain number of AEDs or on the facility having trained employees on the use of AEDs.

Plaintiffs also argued for the imposition of a general duty of care to a facility to use an AED if it has one available on its premises. The Appellate Court found that simply because it is foreseeable that a participant in a sport might be vulnerable to sudden cardiac arrest does not result in a sports facility operator having an additional duty to compel its employees to use AEDs provided on the premises. Last, the Court found that public policy did not require a different result.

Takeaway: If your public entity owns or operates a sports facility that has an AED, it is important to know the nuances of California Health and Safety Code section 1797.196 to ensure that your entity is protected from liability should a person suffer cardiac arrest onsite.