Tag: Public Records Act

Fourth District Holds that Agencies May Not Destroy, But Rather Must Retain All Writings Required by CEQA’s Administrative Record Statute.

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The Fourth District Court of Appeal in Golden Door Properties, LLC v. Superior Court of San Diego County (2020) 53 Cal.App.5th 733 (“Golden Door III”) held that the broad and inclusive language in Public Resources Code section 21167.6 requires lead agencies to retain all project-related writings and e-mails during the CEQA statute of limitations period or any CEQA litigation. The court issued a writ of mandate directing the San Diego County Superior Court to permit petitioners to conduct discovery against San Diego County to recover unlawfully deleted e-mails for the record of proceedings. The court also ruled on matters related to mootness, discovery in CEQA cases, the common interest doctrine, and the Public Records Act.

BACKGROUND

San Diego County’s E-mail Retention and Deletion Policy

In June 2008, the County of San Diego (“County”) adopted an administrative policy that provided for the automatic and permanent deletion of e-mails after 60 days, except for e-mails identified by e-mail users as “official records.” E-mails identified as “official records” must be retained for at least two years, and e-mail users must classify qualifying e-mails as “official records” within 60 days of creating them. E-mails considered “official records” under the policy include those: “made for the purpose of disseminating information to the public”; “made and kept for the purpose of memorializing an official public transaction”; “required by law to be kept”; or, “necessary and convenient to the discharge of a County officer’s official duties and…made or retained for the purpose of preserving its informational content.” The policy also excluded “preliminary drafts, notes, or inter- or intra-agency memoranda not kept in the ordinary course of business and the retention of which is not necessary for the discharge of County’s officer’s official duties,” from the definition of an “official record.”

The Newland Real Estate Project & Procedural Background

In January 2015, Newland Real Estate Group (“Newland”) proposed a mixed-use development project (“Project”) consisting of 2,134 new residential units and 81,000 square feet of commercial development. Petitioner, Golden Door Properties (“Petitioner” or “Golden Door”), owned and operated a 600-acre spa and resort near the proposed project site. In April 2014, Golden Door had warned the County it would oppose Newland’s proposed Project—as it had previously done with a similarly proposed project in 2009—citing environmental concerns and general plan violations.

In December 2016, while the County processed Newland’s Project application, Golden Door sued the Vallecitos Water District (“District”), Newland, and the County. The suit alleged that the District lacked adequate water supplies to support the Newland Project, which would result in adverse groundwater overextraction. To defend against that litigation, the District, the County, and Newland, entered into a “Confidential Joint Defense Agreement.”

In June 2017, the County released a draft environmental impact report (EIR) for the Project. Shortly thereafter in July 2017, Golden Door submitted a Public Records Act (PRA) (Gov. Code, § 6250 et seq.) request seeking the draft EIR’s technical analyses. The County refused production on grounds that only consultants had possessory rights to the documents. Golden Door submitted a second PRA request in October 2017, which sought copies of the County’s consultant contracts and “all documents and communications in the County’s possession” pertaining to the Newland Project. In response, the County produced, among other documents, only 42 emails that spanned the 60-day period between September through October 2017. When questioned about e-mails spanning from the entire three-year environmental review process, the County explained its 60-day automatic e-mail deletion program, and refused to produce copies of deleted e-mails that may still have been in consultants’ possession.

On June 18, 2018, the County released a second draft EIR for the Project. The following day, Petitioner sued the County once again, alleging that it: (1) used unauthorized consultants to prepare the EIR’s technical studies; (2) failed to executed a consultant memorandum of understanding (MOU) in accordance with County CEQA guidelines; (3) improperly destroyed official records; and (4) improperly withheld records under the PRA. In July 2018, the County and Newland entered into another “Confidential Joint Defense Agreement.” That same month, the trial court issued a temporary restraining order directing the County to stop deleting project-related emails.

On September 26, 2018, the County’s Board of Supervisors approved the Newland Project and certified the final EIR. In anticipation of potential CEQA litigation, the County and Newland entered into yet another “Confidential Joint Defense Agreement” to defend against potential claims challenging the County’s Project approvals. In October, two CEQA lawsuits were subsequently filed against the County, including one by Petitioner, Golden Door. The superior court consolidated the two CEQA cases, along with Golden Door’s June 2018 PRA action against the County.

In January 2019 and thereafter, Golden Door conducted civil discovery against the County, Newland, and two of the County’s environmental consultants. The County produced nearly 6,000 documents, but partially refused discovery requests that sought documents pertaining to the County’s compliance with Golden Door’s initial PRA requests. Golden Door also attempted to obtain the County’s deleted e-mails from Newland and subpoenaed the consultants for other Project-related notes, e-mails, studies, and agreements, but both parties opposed the requests.

Golden Door subsequently filed motions to compel discovery and to require the production of privilege logs for the withheld documents. A discovery referee was appointed to resolve the discovery disputes and ultimately issued several rulings in favor of the County, Newland, and the environmental consultants. The superior court adopted the referee’s recommendations and the various plaintiffs filed the first of three petitions for writ of mandate with the Court of Appeal. The appellate court denied the petition and plaintiffs sought Supreme Court review. The Supreme Court directed the Court of Appeal to show cause as to why the first petition should not issue. The appellate court did so and filed an additional order to show cause for the second petition, thereby consolidating the two writ proceedings.

In October 2019, the CEQA plaintiffs filed a motion to augment the record by seeking to add documents the County omitted from the record, and other material plaintiffs had submitted to the County prior to its approval of the Project and certification of the EIR. The superior court “mostly” denied the motion, allowing the addition of only certain documents. Thereafter, Plaintiffs filed their third writ petition in the Court of Appeal.

On March 3, 2020, the County’s voters rejected the Newland Project in a referendum election. The County Board of Supervisors rescinded the Project’s General Plan Amendment, Specific Plan, zoning changes, and other approvals in April 2020. However, the Board did not vacate its certification of the Final EIR or its approval of the Project’s tentative map. Though Newland ultimately withdrew the Project, the Court of Appeal rendered a decision given the likelihood of the reoccurring e-mail retention issue.

COURT OF APPEAL DECISION

Mootness

As a threshold matter, the Fourth District considered whether the writ petitions were moot because the County had rescinded some, but not all of its Project approvals. The appellate court held that the petitions were not moot because the County did not rescind all project approvals and counsel for Newland indicated that the Project will likely return in some form, perhaps in reliance on the certified Final EIR and tentative map. The court also explained that even if these issues were moot, it had discretion to retain the case because it presented an issue of broad public interest that is likely to reoccur, the parties’ controversy may reoccur, and the County’s e-mail deletion policy remained a material issue of statewide significance.

The County’s E-mail Retention Policy

The Fourth District’s analysis began by interpreting the scope of requisite administrative record documents contemplated by Public Resources Code section 21167.6. The section requires that the record include any document that “ever came near a proposed development or to the agency’s compliance with CEQA in responding to that development.” Moreover, section 21167.6, subdivision (e) uses very broad and inclusive language, which provides that records “shall” include “correspondence” submitted to and transferred from the respondent agency regarding the Project or CEQA compliance, as well as all “internal agency communications” relating to the Project or CEQA compliance.

The court further found that section 21167.6’s broad mandate comports with CEQA’s intent of providing information and disclosure. A complete record is essential for courts to fulfill their role in assuring that an agency’s determinations are lawful under CEQA and supported by substantial evidence. Based on the plain language of the statute, the court held “that a lead agency may not destroy, but rather must retain writings section 21167.6 mandates for inclusion in the record of proceedings.” The court also found that the trial court erred in finding that the County’s e-mails were extra-record evidence; rather, the e-mails plaintiffs sought to include were record evidence contemplated by section 21167.6.

The appellate court also rejected the discovery referee’s finding that the County’s e-mail destruction policy was lawful. The court found that the referee had inappropriately equated non-official emails with preliminary drafts in determining that “[n]on-official emails and other preliminary drafts” are not included under section 21167.6. The court noted that e-mails are a method of communication, while preliminary drafts describe content. Section 21167.6, subdivision (e)(10) “expressly requires certain preliminary drafts—namely, ‘any drafts of any environmental document, or portions thereof, that have been released for public review’—to be included in the record of proceedings.” In contrast, administrative drafts of EIRs, draft staff reports, and other similar preliminary documents that preceded those circulated for public review are not to be treated as part of the record of the agency’s proceedings. Similarly, agencies need not include e-mails in the administrative record that are irrelevant to a project or a project’s CEQA compliance (i.e., email equivalents to “sticky notes, calendaring faxes, and social hallway conversations” are not within the scope of section 21167.6, subdivision (e) and do not need to be retained).

While the Fourth District held that under the County’s e-mail retention and deletion policy the requisite document should have been retained for at least two years, the court did not reach the issue of how long other agencies must keep their e-mails before destroying them. The court’s opinion does not hold that e-mails must be kept “in perpetuity”—rather, the CEQA statute of limitations and a final judgment serve as relevant considerations to assessing when e-mails may be destroyed.

Discovery in CEQA Litigation

The Fourth District overturned the discovery referee’s denial of plaintiff’s motions to compel discovery against Newland and the County’s consultants. The court held that plaintiffs were not inappropriately attempting to enlarge the record; they were properly seeking discovery of documents that should have originally been included.

Because section 21167.6 is mandatory and broadly inclusive, the court held that discovery to obtain record components should largely be unnecessary. However, in cases such as these where documents may have been wrongly excluded from the administrative record, discovery is possible in a CEQA proceeding.

The Common Interest Doctrine

The County’s objections to Golden Door’s discovery requests cited the common interest doctrine. Golden Door’s subsequent May 2019 motion to compel asked the County to produce a privilege log. The County’s initial privilege log identified 3,864 withheld documents, and amended privilege log identified 1,952 withheld documents.

Golden Door asserted that the common interest doctrine did not apply to the documents shared between the project applicant and the county prior to October 10, 2018, the date the county board adopted the last project approval. The court disagreed, holding that the referee correctly determined the common interest doctrine applied pre-project approval. The court distinguished Ceres for Citizens v. Super. Ct. (2013) 217 Cal.App.4th 889, by pointing out that Golden Door had already sued the County twice prior to Project approval, each time seeking orders to kill the Project, thereby creating a common interest between the County and the Newland to defend the Project pre-approval.

The court explained that entities with common legal interests may share attorney-client privileged information without waiving that privilege. For these reasons, the Confidential Joint Defense Agreement between the County, the District, and Newland was proper because they were entered into after litigation had commenced.

Public Record Act Exemptions

Lastly, the Fourth District considered whether the County appropriately relied on the “preliminary draft exception” and the “deliberative process privilege” to withhold approximately 1,900 documents from discovery. Under the PRA’s preliminary draft exception, agencies need not disclose preliminary drafts, notes, or inter/intra-agency memoranda that are not retained by the public agency in the ordinary course of business if the public interest in withholding those records outweighs the public’s interest in disclosure.  Similarly, the deliberative process privilege applies to the mental processes by which an agency reached a given decision, which includes the substance of conversations, discussions, debates, deliberations, and materials reflecting advice, opinions, and recommendations by which government policy is processed.

Here, the court overturned the referee’s recommendation by finding that the declaration in support of the County’s privilege log lacked sufficient detail to justify withholding over 1,900 documents. The declaration failed to discuss individual documents and how the exceptions apply—rather, the County only discussed the 1,900 documents as one “enormously large unified group.” Moreover, while the court recognized the difficult balance the County must strike in determining what to release or withhold, the County here only provided “broad conclusory claims” that “merely echo[ed] public policies underlying claims of privilege generally.” The court held that the County had failed to carry its burden of establishing that the public interest in withholding the documents clearly outweighed the public interest in disclosure.

Remedy

The court rejected plaintiff’s contention that the County’s inadequate record requires a judgment on the merits as premature. On remand, the plaintiffs are allowed to complete discovery. The court also granted the consolidation of the writ petitions and overturned many of the discovery referee and superior court’s findings. The court directed the trial court to vacate its order denying Golden Door’s motion to augment the record because the County’s long-standing e-mail retention and deletion policy is unlawful. Finally, once discovery is complete, Petitioner should be afforded a reasonable period of time to augment the record.

MODIFIED DECISION ON DENIAL OF REHEARING

On August 25, 2020, the Fourth District issued an order denying three petitions for rehearing filed by Golden Door, the County, and Newland, and modifying the court’s July 30, 2020 opinion. Notably, the order expanded the original opinion’s analysis of the “common-interest”/“joint defense” doctrine. The court reiterated that the discovery referee properly applied the doctrine to communications between the County and Newland because Golden Door’s Vallecitos and PRA lawsuits sought to “defeat” or “mortally wound” the Project before it had been approved. In a subsequent footnote, the court explained that the common-interest doctrine may keep the attorney-client and work-product privileges in-tact for the purposes of defending against those two lawsuits. However, that common interest does not absolve the County of its duties as a lead agency under CEQA.

– Mina Arasteh, Bridget McDonald

First District Court of Appeal Allows City to Recover Costs of “Extracting” and Producing Video Recordings Requested Under the California Public Records Act

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On September 28, 2018, the First District issued its decision in National Lawyers Guild v. City of Hayward (2018) 27 Cal.App.5th 937.* Concluding that the trial court misinterpreted applicable provisions of the California Public Records Act (CPRA), the appellate court reversed the trial court’s decision to issue a writ directing the City of Hayward to refund the National Lawyers Guild for payments that the Guild made to cover the city’s costs in producing videos responsive to the Guild’s request for public records.

In January 2015, the Guild served the city with requests for public records relating to a demonstration in Berkeley protesting police violence. The city’s police department provided security for the demonstration that was held in December 2014. In response to the Guilds’ CPRA request, the city provided the Guild with over 200 public records, including six hours of police body camera videos from the Berkeley demonstration. In May 2015, the city sent the Guild an invoice for $2,939.58 to cover the costs incurred by city employees in preparing the videos for production, including editing the videos to redact exempt material. The Guild paid this first invoice under protest and submitted another request for a second set of videos. The city informed the Guild that the second set of videos could be produced for a cost of $308.89. The Guild paid the second invoice, but not before it filed a petition for writ of mandate seeking a refund of what it had paid to the city.

The trial court concluded that Government Code sections 6253 and 6253.9 do not permit the city to charge a public records requester for costs incurred in redacting material from a video that is a public record. After the trial court ruled in favor of the Guild, the city appealed.

The appellate court began with an overview of the statutory framework and public policies behind the CPRA. Then the court focused on the plain language in Section 6253 and Section 6253.9, subdivision (b)(2). The main dispute between the city and the Guild centered on the term “extract” in Section 6253.9, subdivision (b), which provides: “the requester shall bear the cost of producing a copy of the record” when compliance with the request for an electronic record “would require data compilation, extraction, or programming to produce the record.” (Gov. Code, § 6253.9, subd. (b).)

The court decided that it must consider legislative history because it was not clear from the statutory text what the Legislature intended. Based on various documents that the court judicially noticed for purposes of the appeal, the court concluded that lawmakers drafted Section 6253.9(b) to “expand the circumstances under which a public agency could be reimbursed by a CPRA requester to include” a scenario where “the agency must incur costs to acquire and utilize special computer programming (e.g., the Windows Movie Maker software) to extract exempt material from otherwise disclosable electronic public records.” The court reversed the trial court’s judgment, allowing the city to recover the costs it incurred in providing the Guild with redacted videos.

*Review granted, December 19, 2018.

California Supreme Court Rules Personal Emails May Be Considered Public Records Subject to Disclosure Under the Public Records Act

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In City of San Jose v. Superior Court of Santa Clara County (2017) 2 Cal.5th 608, the City of San Jose argued that messages communicated through personal accounts of city employees were not public records subject to disclosure under the California Public Records Act (“CPRA”). The Supreme Court disagreed, holding that a city employee’s emails about public business are not excluded from disclosure simply because they have been sent, received, or stored in a personal email account.

The Supreme Court rejected the City’s narrow interpretation that the statutory definition of “local agency” does not specifically include individual government officials or staff members—finding that nothing in the statutory language indicates the Legislature meant to exclude local agency employees from CPRA obligations.

The court similarly rejected the City’s argument that “public records” include only materials in the agency’s possession or directly accessible to the agency. Taking its cue from federal courts interpreting the Freedom of Information Act, it concluded that documents retained in an employee’s personal account are considered “retained by” the agency within the meaning of the CPRA.

The content of the specific records at issue was not a question before the court in this matter. Nevertheless, the Supreme Court did acknowledge that resolving whether a writing relates in a substantive way to the conduct of the public’s business, particularly when writings are kept in personal accounts, may involve examination of several factors, including the content of the writing; the context and purpose for which it was written; the intended audience; and whether the employee was acting within the scope of his or her employment.

Finally, the Supreme Court agreed with petitioner that potential intrusion of personal privacy resulting from a records search in personal accounts can be minimized through procedural safeguards. The court provided guidance for reasonable searches—such as relying on their employees to complete their own searches or adopting policies to reduce the likelihood of public records being held in employees’ private accounts.

Notably, the court did not, however, foreclose the opportunity for an agency to claim that the burden of obtaining records from personal accounts is too onerous.

Fourth District Holds Storm Drainage Repair and Subsequent Revegetation Project Properly Exempted from CEQA

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The City of San Diego appealed a judgment granting CREED-21’s petition for injunctive and other relief for CEQA violations relating to emergency storm drainage repair and revegetation projects in La Jolla. The court held in favor of the City, finding it had used the correct baseline and had properly issued an exemption for the revegetation project. Furthermore, CREED had not been denied its due process right to a fair hearing. The court affirmed the judgment below to the extent it declared the City’s appeal fee assessment invalid and set it aside. The opinion, filed January 29, was certified for publication on February 18. CREED-21 v. City of San Diego (Feb. 18, 2015) ___ Cal.App.4th ___, Case No. D064186.

In 2010, the City issued an emergency permit for storm drainage repair work, and a notice of exemption from CEQA for the work. The emergency permit was conditioned on seeking a permanent permit and implementing a revegetation plan. The City found the revegetation plan to be exempt from CEQA relying on the “common sense” exemption and two categorical exemptions. CREED filed a lawsuit challenging the revegetation plan, and the work performed under the emergency permit. CREED argued that in reviewing the revegetation plan, the City was required to consider the physical setting of the area prior to the emergency storm drainage work, rather than after when the revegetation work commenced. The court refused to set the baseline earlier. The court similarly held that CREED did not have standing to challenge the 2010 emergency exemption, as it had missed the statute of limitations to challenge that project.

CREED argued that the 2010 emergency exemption was merely for temporary work, and that CEQA required the City to conduct at least a preliminary review, if not an initial study and EIR, to determine whether the already completed repair work might have a significant effect on the environment. The court disagreed, noting that any argument about the temporary status of the emergency work performed by the City in 2010 was based solely on the San Diego Municipal Code and not on CEQA or the Guidelines.

The court found that the City properly relied on the common sense exemption to find the revegetation project exempt from CEQA under Guidelines section 15061, subdivision (b)(3). That exemption applies where there is no possibility that the activity in question may have a significant effect on the environment. Because the revegetation plan would indisputably improve the site’s physical conditions—consisting primarily of bare dirt—the plan would not cause an adverse change so as to constitute a significant effect on the environment. The court added that the revegetation plan would also be exempt under the Class 1 exemption for existing facilities, which encompasses repair to existing topographical features. CREED failed to satisfy its burden of showing that the unusual circumstances exception applied to override the exemption.

The court also found CREED was not denied due process of law when the City did not timely disclose a document requested under the California Public Records Act. The City Council heard and denied CREED’s appeal of the City’s exemption determination, but did not provide CREED with a copy of the initial study until after that hearing. This omission did not deny CREED its right to due process and a fair hearing. CREED had received reasonable notice of the hearing and a reasonable opportunity to be heard.

Finally, the Fourth District held that the trial court had not abused its discretion by denying the City’s request for judicial notice of an ordinance and by finding that an appeal fee was unauthorized. There was no evidence in the record authorizing the $100 appeal fee. CREED alleged there was also no provision in the Municipal Code authorizing the City to charge a fee for an administrative appeal. The City argued there was an ordinance authorizing such fees, and requested the court take judicial notice of the ordinance. The court found the City had not given CREED sufficient notice of its request for judicial notice to allow for preparation of an opposition, and the request’s lack of an attachment listing specific fees rendered the document insufficient for the court to take notice.

Third District Court of Appeal Upholds EIR for Sacramento Kings’ Downtown Arena Project

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The Third District Court of Appeal held that the City did not prematurely commit to the arena project by entering into a nonbinding term sheet with the Sacramento Kings or by engaging in land acquisition through eminent domain before the EIR process was complete. The court further determined that the EIR included an appropriate range of alternatives and adequately analyzed traffic and safety impacts. Saltonstall v. City of Sacramento (Feb. 18, 2015) ___ Cal.App.4th ___, Case No. C077772.

The case involves a challenge to the certification of an EIR and approval of a new entertainment and sports arena in downtown Sacramento that will eventually house the Sacramento Kings. To facilitate the timely opening of the new downtown arena, the Legislature modified several deadlines under CEQA by adding section 21168.6.6 to the Public Resources Code.

The City certified the EIR and approved the project in May 2014. Opponents of the project immediately filed a lawsuit against the City and sought a preliminary injunction to stay construction. The trial court denied the preliminary injunction, and the Court of Appeal affirmed that decision. The appellate court ruled that petitioners failed to satisfy the requirements for a preliminary injunction and held that section 21168.6.6 was not unconstitutional. (Saltonstall v. City of Sacramento (2014) 231 Cal.App.4th 837.) The trial court subsequently rejected the lawsuit in its entirety. Petitioners appealed.

In the appeal, petitioners argued (1) the City violated CEQA by committing itself to the downtown arena project before completing the EIR process, (2) the City’s EIR failed to consider remodeling the current Sleep Train Arena as a feasible alternative to building a new downtown arena, (3) the EIR did not properly study the effects of the project on interstate traffic traveling on the nearby section of Interstate Highway 5, and (4) the City did not account for large outdoor crowds expected to congregate outside the downtown arena during events. Petitioners also argued that the trial court erred in denying their motion to augment the record and in denying their Public Records Act request to the City to produce e-mail communications with the NBA. The Court of Appeal rejected all of petitioners’ claims.

The Third District first dismissed the claim that the City prematurely committed itself to approving the project. Petitioners claimed the City violated CEQA by engaging in land acquisition for its preferred site and entering into a preliminary term sheet with Sacramento Basketball Holdings LLC before finishing the EIR. Rejecting this argument, the Court held that the City was allowed to engage in land acquisition for its preferred site before finishing its EIR under CEQA Guidelines section 15004 and Public Resources Code section 21168.6.6. Guidelines section 15004, subdivision (b)(2)(a), expressly provides that “agencies may designate a preferred site for CEQA review and may enter into land acquisition agreements when the agency has conditioned the agency’s future use of the site on CEQA compliance.” Moreover, Public Resources Code section 21168.6.6 expressly allowed the City to exercise its eminent domain power to acquire the 600 block of K Street as the site of the arena before finishing the EIR. Finally, the court held that the preliminary term sheet did not improperly commit the City to approving the arena as proposed. The preliminary nonbinding term sheet constituted an agreement to negotiate regarding the project and did not foreclose environmental review, mitigation, or even rejection of the project.

Turning to petitioners’ claim that the alternatives analysis was inadequate, the court held that the City was not required to study remodeling the current Sleep Train Arena as a project alternative in the EIR. The City studied a “no project” alternative involving continued use of the Sleep Train Arena and an alternative that involved building a new arena next to the current arena in Natomas. Both the no project and new Natomas arena alternatives failed to meet most of the City’s objectives for the project to revitalize its downtown area. The remodel alternative suggested by petitioners would have suffered the same problems of location that caused the City to reject the two Natomas-based alternatives. Noting that “infeasible alternatives that do not meet project objectives need not be studied[,]” the court held the Sleep Train Arena remodel alternative did not need to be analyzed.

The court next addressed petitioners’ claim that the EIR’s traffic analysis was defective for failure to adequately analyze interstate traffic on I–5. The EIR studied and disclosed existing problems with the nearby section of I–5 at peak traffic times as well as how the downtown arena project would worsen traffic congestion. The EIR reached the conclusion that levels of service would—at times—reach the worst rating given by Caltrans for traffic flow. Even with proposed mitigation measures, the City acknowledged the adverse impact of the project on I–5 traffic would be significant and unavoidable. While petitioners acknowledged the City did study local I–5 traffic congestion, they argued the study was inadequate for not considering “mainline” I–5 traffic ranging from Canada to Mexico. Rejecting this argument, the court explained that the City was not required to separately study the effect on interstate motorists who will be impacted in the same way as other, local motorists sharing the same section of I–5. The court also noted the EIR did account for mainline traffic because it used the sampling data of mainline freeway traffic collected by Caltrans.

Petitioners also argued the City’s traffic study was deficient because the EIR understated the number of persons who would surround the downtown arena. The court again was not persuaded. The City’s review of crowd size included a national survey of similar entertainment and sports facilities as well as review of crowd sizes during the Sleep Train Arena’s history. The court held that the City did not err “in declining to speculate that the same games played a few miles away would suddenly and inexplicably draw large crowds of persons who would not watch the game but simply mill about in the winter nighttime.”

Addressing petitioners’ final CEQA claim, the court held that petitioners’ contention regarding failure to study post-event crowd safety and potential for violence did not implicate CEQA because petitioners failed to show any potential for environmental impacts. Petitioners argued the EIR both understated the number of persons who can be expected to congregate around the downtown arena as well as their proclivities toward drunken violence. The court ruled that the argument focused on a social issue for which no environmental effect was described.

Finally, regarding petitioners’ attempt to augment the administrative record, the court held that their challenge to the trial court’s denial of their Public Records Act request seeking over 62,000 emails related to communications between the City and the NBA was not properly before the court. Denial of such a request is reviewed only by petition for writ of mandate, not direct appeal. The court also held that petitioners forfeited their argument regarding the introduction of certain additional materials because they failed to offer any meaningful analysis on the issue.

Supreme Court Holds GIS-Formatted Database is a Public Record that Must be Produced under the California Public Records Act

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In Sierra Club v. Superior Court (2013) __Cal.4th__ (Case No. S194708), the California Supreme Court held that Orange County cannot charge a licensing fee for GIS file format records requested by the public. Under the California Public Records Act, this information must be produced upon request at the actual cost of duplication. A database meets the definition of a public record when it can be disclosed without any accompanying software.

Background and Procedural History

Orange County maintains a large database of information about land parcels in a geographic information system (GIS) file format.  With this database, called the “OC Landbase,” a user with appropriate software can create a layered digital map containing information for over 640,000 specific parcels of land in Orange County, including geographic boundaries, assessor parcel numbers, street addresses, and links to additional information on the parcel owners.  In June 2007, Sierra Club sent a letter to Orange County requesting a copy of the OC Landbase pursuant to the California Public Records Act (PRA).  Sierra Club planned to use the information to determine the status of large areas of open space in Orange County, including whether each area is protected from development by conservation easements or public ownerships or is threatened by a proposed development. Sierra Club’s request began a lengthy exchange between the two parties concerning the public record status of the OC Landbase.

In 2009, the County agreed to produce records containing  the information underlying the OC Landbase, including assessment rolls, parcel maps, tract maps, survey records, lot line adjustments, and transfer deeds, but only in Adobe PDF electronic format or as printed paper copies. The County took the position that the PRA did not require it to disclose the same records in a GIS file format and that it would provide the records in that format only if Sierra Club paid a licensing fee and agreed to the license’s restrictions on disclosure and distribution.  The County claimed that the licensing agreement enabled it to recoup a portion of the substantial costs it incurs to develop and maintain the OC Landbase.

Sierra Club sought a writ of mandate from the superior court to compel the County to provide the OC Landbase in a GIS file format as a public record for a fee covering only the direct cost of duplication, with no requirement that Sierra Club comply with the licensing agreement.  The County claimed that the OC Landbase was excluded from the PRA’s definition of a public record because it fell within the statutory exemption for “computer software,” a term that includes “computer mapping systems” under Government Code section 6254.9. Sierra Club pointed out that 47 of the state’s 58 counties provide access to GIS-formatted parcel base maps as public records, and argued that the request was for electronically-stored data, not software. Sierra Club would have to use its own GIS software to access the data.

The superior court issued an order denying the petition for writ of mandate, holding that the OC Landbase in a GIS file format was part of a “computer mapping system” and thus exempt from the PRA’s general rules of disclosure.   The court of appeal affirmed, finding that while the statutory language ambiguous, the legislative history supported the County’s argument.  The Supreme Court granted review and reversed.

Supreme Court’s Decision

The court began its opinion by emphasizing “the strong public policy of the people’s right to information concerning the people’s business (Gov. Code §6250) and the constitutional mandate to construe statutes limiting the right of access narrowly (Cal. Const. art. I, § 3, subd. (b)(2)).” Because of this, “all public records are subject to disclosure unless the Legislature has expressly provided to the contrary.”

After reviewing the statutory language and legislative history, the court found that it was ambiguous whether the terms “software” and “computer mapping systems” referred to information similar to the OC Landbase in GIS file format. When drafting the bill that created the exemption, the Legislature had amended the bill to specifically remove a reference to “computer readable data bases” in the definition of “software.” But in another statute written 9 months prior to Government Code section 6254.9, the Legislature used the term “computer software” to mean not only a program or sequence of instruction, but also related data. The fact that software has evolved significantly since 1988 when the term was used in the statute created a challenge for the court in determining legislative intent. More recently in 2004, the Legislature defined “computer software” as “a sequence of instructions written in any programming language that is executed on a computer.” The court also noted that the ordinary meaning of “computer mapping system” is the mapping software, not the database.

Moreover, Government Code section 6253.9 subdivision (a)(1) mandates that “the agency shall make the information available in any electronic format in which it holds the information.” The court noted that almost all data that is stored in computers is formatted to be used with application software. The court did not believe that the Legislature, given this mandate to produce information in an electronic format, would have intended to exclude large categories of computer databases merely because the files they are formatted to be read and manipulated by mapping and graphics software.

Because the legislative intent was ambiguous, the court chose to broadly construe the PRA in a way that promotes access to information as required by the California Constitution and Government Code. The court noted that a narrow interpretation of “computer mapping systems” would be consistent with a 2005 opinion letter issued by the Attorney General, which explained that the term in the PRA applied to computer programs but not compiled data. Since the County did not have any additional reasons why the information should be exempt from the PRA, the court held that the County must produce the OC Landbase in response to Sierra Club’s request in any electronic format in which it holds the information at a cost not to exceed the direct cost of duplication.

Fifth District Rules Administrative Record Must Include Audio Tapes of Public Proceeding Where No Transcript Is Available, As Well As Certain Materials Held by Primary Consultants

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Consolidated Irrigation District v. The Superior Court of Fresno County (5th Dist. April 28, 2012) __Cal.App.4th__ (Case No. F063534)

In this case, the court considered numerous issues regarding the proper interpretation of Public Resources Code section 21167.6, subdivision (e). This section of CEQA addresses the materials that should be included in the administrative record. The court also addressed the Public Records Act.

Factual and Procedural Background

In 2009, the City of Selma published a draft EIR for a proposed commercial project. The NOA indicated that project files would be maintained at the community development department. On March 1, 2010, the city council approved the project. On March 30, 2010, Consolidated Irrigation District (CID) filed a lawsuit alleging that the city had violated CEQA when it approved the project. CID elected to prepare the administrative record.

The city resisted requests by CID to obtain documents under the Public Records Act.  After disputes over the procurement of certain documents for the administrative record, both parties stipulated that the record would be prepared jointly. Before certification of the record, CID requested three transcripts and 39 enumerated documents (some of which were available on the internet). Counsel for the project proponent rejected most of the requests for inclusion of additional materials in the administrative record. The city proceeded to certify the record.  CID responded that the city had abandoned its agreement to cooperate in preparation of the administrative record.

CID filed a motion for leave to conduct limited discovery. CID alleged the record prepared and unilaterally lodged by the city contained few internal agency communications, and that the city had refused to produce any original correspondence, as well as other technical data and documents used in preparation of the EIR. CID also filed a motion to augment the administrative record and a petition for writ of mandate under the Public Records Act to access the city’s project files and files held by the city’s consultants. The trial court denied all three motions.

The Public Records Act

The Public Records Act provides persons with the right to inspect public records. For this act, “public records” includes “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency.” Because CID was subsequently provided with documents from the city’s primary consultant, the only documents at issue for the Public Records Act request were documents held by sub-consultants.

The appellate court determined the issue turned on whether the files of the sub-consultants were “in the possession of the agency” for purposes of the act. CID asserted that the city had the right to control these documents based on provisions between the city and the primary consultant. The appellate court disagreed with CID’s interpretation of the contract. CID also argued the city had the potential to control the documents because the sub-consultants might provide the documents to the city upon request. The appellate court determined the mere possibility of control did not establish constructive possession of the files. The appellate court affirmed the trial court’s denial of CID’s petition under the Public Records Act.

Motions for Discovery in CEQA Proceedings

The city argued CID’s motion for discovery was not allowed in a CEQA case. The appellate court cited section 21167.4, subdivision (c), which establishes the briefing schedule and expressly authorizes the trial court to extend the schedule for good cause, including the conduct of discovery. Further, past case law confirmed that courts have allowed discovery in CEQA proceedings.

Transcripts and Recordings of Hearings

While the administrative record certified and lodged by the city included transcripts of some public hearings, it did not include the transcripts for three meetings CID expressly requested. The city instead stated the transcripts did not exist, and CID could purchase a copy of the tape recordings to be transcribed. If CID did prepare transcripts from these tapes, the city informed CID it might object to inclusion of the transcripts in the administrative record as not likely to be an accurate reflection of the oral proceedings.

Section 21167.6, subdivision (e)(4), indicates that the administrative record shall include, but is not limited to, “[a]ny transcript or minutes of the proceedings” where an agency considered an environmental document for a project. The city argued no transcripts of the meetings existed. The project proponent argued that CID failed to take the reasonable step of purchasing tape recordings of the meetings and having them transcribed. Both city and the project proponent believed that section 21167.6, subdivision (e)(4) required either a transcript or minutes of the proceeding.

The appellate court determined that, by the strict definition of “transcript,” no transcripts of the three proceedings at issue existed. Therefore, the provision of subdivision (e)(4) or section 21167.6 did not directly require an order of augmentation in this case. The appellate court then considered whether the audio recordings of the meetings constituted “other written materials” for the purpose of the same section.

The appellate court determined the term “written,” as used in the section, was ambiguous and that ambiguity had to be resolved in a way that “best effectuates the purpose of the law.” Because this issue arose under CEQA, the court chose the interpretation that “best promotes accountability, informed self-government, and environmental protection.” This required a broad interpretation of “written materials” to include audio recordings of public proceedings for which there is no transcript. Minutes of proceedings would be insufficient due to the risk of errors of exclusion. Based on this interpretation, the appellate court concluded CID’s motion to augment the administrative record should have been granted for the tapes of the three meetings.

Documents Referenced in a Comment Letter

CID argued that the administrative record should have included certain studies and reports referred to in comment letters sent to the city. The appellate court analyzed CID’s argument based on four separate categories of documents.

Documents in the first category had previously been provided to the city by CID.

Documents in the second category were named in comment letters along with a general web site where the document could be located. The comment letter included a specific request that these documents be included in the record of proceedings. The court noted that some effort could be required to navigate from the general web site to more specific pages and to identify the specific document referenced in the comments.

The third category included documents with a URL citation but without a request that the documents be included in the record of proceedings. The court noted these “specific webpages” would produce the document in question when visited with a “minimal” burden on lead agency personnel.

The fourth category of documents named in comment letters simply identified the organization that created the referenced study or report. No further information was provided for locating these documents on the internet, and no offer was made to provide a hard copy of these documents.

The appellate court again cited CEQA section 21167.6, subdivision (e), to resolve the question of whether these different documents should have been included in the administrative record. Subdivision (e)(6) requires the inclusion of all written comments on environmental documents prepared for the project. Subdivision (e)(7) requires the inclusion of all written evidence or correspondence submitted to the public agency with respect to compliance with CEQA or with respect to the project.

The appellate court determined the term “written comment” as used by subdivision (e)(6) most certainly included the letters submitted by CID; however, this term did not include documents cited to support the assertions and contentions made in the comment letters. Therefore, documents cited in a comment letter could not be “bootstrapped” into the record of proceedings using subdivision (e)(6).

To determine whether subdivision (e)(7) required inclusion of the various categories of documents submitted by CID, the appellate court analyzed both the meaning of “written evidence” and “submitted to.” The appellate court adopted a broad interpretation of “written evidence.” Evidence is something that tends to prove or disprove an alleged fact. The court looked at multiple definitions of “written” and found that each supported the conclusion that documents that can be accessed on the internet are “written.”  The court held the term “submitted to”, which generally means “presented or made available for use or study,” is concerned with the effort that must be expended by the lead agency in using or studying the written evidence presented to it. The court employed this pragmatic approach to avoid placing an unacceptable burden on lead agency personnel and their limited resources.

The court held documents in the first category were clearly submitted to the agency. CID delivered hard copies to the city in connection with a different project and offered to provide additional copies upon request. CID’s letter also specifically requested that these documents be included in the record of proceedings. The court determined it was not an unreasonable burden for the city to obtain the documents from their files for the other project, or in the alternate, to request additional hard copies from CID. As a result, the appellate court determined these documents were part of the administrative record.

In contrast, the court determined it was an unreasonable burden to expect city staff to acquire the second category of documents. These documents were named in CID’s comment letter, which provided only a general web site.  Additional searching was required to find the specific web page where the document was located. While some documents might be easily located from a general webpage, others might prove difficult to find. The court noted it would take little effort on the part of the commenter to provide the URL linking directly to the document. Therefore, these documents were not properly submitted to the city and were not part of the administrative record.

Documents in the third category were identified by a citation to the specific webpage containing the document. This information made the documents readily available to city personnel and therefore they should have been included in the record.

Documents comprising the fourth category were merely named in comment letters without citation to a general or specific webpage. For these documents, the effort put forth by the commenter was minimal, and the time and effort of the lead agency personal to locate and acquire the document could be substantial. These documents, the appellate court held, were clearly not submitted to the lead agency.

Documents Referenced and Relied Upon in an EIR

CID argued the administrative record was incomplete because it omitted documents referenced and relied upon in the EIR. Subdivision (e)(10) of section 21167.6 indicates the record of proceedings shall include copies of documents relied upon in any EIR and either made available to the public during the public review period or included in the public agency’s files on the project. CID relied on the second clause to argue that documents used to prepare the EIR and held in files of sub-consultants should have been part of the administrative record.

The appellate court determined that the term “public agency’s files” means files owned by the agency or in its custody or control. The court noted that the agreement between the city and primary consultant stated that the City owns the contents of the files held by the primary consultant used in connection with the project. As a result of this ownership interest, the appellate court determined the primary consultant’s files were part of the public agency’s files on the project for the purposes of section 21167.6, subdivision (e)(10).

The appellate court determined that CID could not establish that the city owned or exercised custody or control over the files held by sub-consultants. As a result, these files were not part of the public agency’s files on the project.

Certification of the Administrative Record.

The appellate court addressed whether error in the certification of the administrative record constituted prejudicial error in this case. The court determined it did not because the certification was no longer the operative document that defined the contents of the record. Instead, the trial court’s order specifying the scope of the record superseded the city’s certification. The appellate court noted trial courts have the authority to resolve disputes over the scope of the administrative records.  Appellate courts then review the trial court’s determination in these cases and not the determination of the public agency that certified the record.

The appellate court pointed out that, in this case, the matter would be sent back to the trial court, which would comply with the appellate court’s directions and issue a new order that would define the scope of the administrative record.

Conclusion

This is a significant case addressing the scope of documents that must be included in administrative records prepared for CEQA proceedings. Lead agencies compiling an administrative record in response to litigation should include materials in the primary consultants’ project files to the extent the lead agency owns or exercises control or custody over those files. Additionally, agencies should include audio tapes where no transcripts are available, or where the minutes of a meeting may not fully convey the context and content of testimony and discussions at the meeting. Lastly, the decision provides some helpful clarification regarding sources of information referenced in written comments and indicates that the specificity and manner in which they are presented dictates whether they should be included in the record. Overall, the decision confirms that the scope of the record of proceedings in a CEQA case is quite broad, as the language of the statute indicates.