In Golden Door Properties, LLC v. Superior Court, the Fourth Appellate District addressed several key issues involving the scope of a CEQA record of proceedings, including the question of what is the obligation of a lead agency to retain emails, and possibly even internal notes and other non-electronic documentation, which are otherwise routinely deleted or discarded pursuant to agency policy or common practice.
The litigation backdrop to this decision is equivalent to the United States involvement in Afghanistan: It is a conflict with no apparent ending in sight. The petitioner (“Golden Door”) is a resort property located in San Diego County that vigorously opposed the potential development of nearby property. This conflict generated Golden Door litigation against the water district, a Public Records Act (“PRA”) lawsuit against the County, and a separate CEQA lawsuit against the County following project approval. The combined litigation involved extensive discovery disputes in the trial court, multiple writs filed with the Court of Appeal and one to the California Supreme Court. The general plan amendment, which was part of the project approval, was the subject of a referendum and was defeated by the voters.
The heart of this most recent decision involved the consequences of the County’s policy of routinely deleting emails after 60 days. This issue presented itself in both the PRA litigation and the CEQA challenge to the project approval. Petitioner elected to prepare the record of proceedings in the CEQA challenge but was provided only a limited number of emails. The County advised the petitioners of its policy providing for automatic deletion of emails after 60 days, a practice then challenged by the petitioners. The appellate decision is lengthy at 50-plus pages and provides an extensive discussion of the various discovery disputes (involving not only the County, but the EIR consultants as well) and the litigation. The key holdings¹ can be distilled down to the following:
1. The County’s policy of routinely deleting emails conflicted with CEQA’s definition of the record of proceedings (Public Resources Code §21167.6). Although CEQA contains no express requirement that emails be retained, the Court relied on Section 21167.6, subdivision (e)(7) (“All written evidence or correspondence submitted to, or transferred from, the respondent public agency with respect to compliance with this division or with respect to the project”), to conclude that the lead agency was obligated to retain emails as official records.
2. The trial court utilized a discovery referee who ultimately sided with the County on many of the discovery disputes. The referee erroneously considered the petitioners’ demands for documents as requests for extra record evidence and this formed a basis for the referee ruling for the County. In fact, the petitioners’ discovery efforts concerning emails and other materials was a dispute over obtaining a complete record of proceedings and should not have been viewed as extra record evidence as was considered in Western States Petroleum Association v. Superior Court (1995) 9 Cal.4th 559.
3. The County violated its own policy on record retention. In interpreting the County code, the appellate court concluded that because CEQA considers emails as documents to be retained, these emails became records required by law to be kept under the County’s own record retention rules.
4. The Civil Discovery Act applies in CEQA cases. [Note: This opens the door for petitioners to subpoena relevant documents from the lead agency, other agencies, and agency consultants. To the extent that the applicant has communicated with agencies, those communications may be relevant to the CEQA litigation and may be subject to subpoena.]
5. The cost of email retention is immaterial. The County argued that it would cost $76,000 per month to store the emails. While the appellate court noted the cost, it did not alter the court’s position as to the obligation of the agency to preserve emails. The court noted that emails not relevant to the project or with the agency’s compliance with CEQA could be deleted. [Note: This puts the lead agency in the unenviable and unworkable position of screening the content of every email before deleting, risking an accidental deletion. In these authors’ assessment, the agency would be better off to save all emails than to spend the time, money, and risk of parsing out some emails.]
6. In its efforts to create the record of proceedings, the petitioners could subpoena the business records of the consultants hired by the County in an effort to recreate the emails and documents deleted by the County.
7. Because of the ongoing multiple cases filed against the project, the developer and County could enter into an agreement permitting confidential document exchange through respective legal counsel. Absent that fact pattern, the appellate court concurred in the decision of Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889, holding that there is no legal basis during application processing for a common interest exemption from disclosure.
8. The referee improperly upheld the non-disclosure of 1,900 documents based upon the preliminary draft exemption and the deliberative process exemption. While that might have been an appropriate basis to not disclose, the record before the referee was insufficient. The privilege log must contain “reasonably specific detail.” The County’s supporting declaration lacked sufficient information and was too broadly framed to support the non-disclosure. [Note: The court did not directly address other non-email documents such as staff notes, sticky notes, or even fax confirmations, some of which may benefit from these exemptions. It did, however, affirm a broad principle that only documents “that do not provide insight into the project or the agency’s CEQA compliance with respect to the project” can be discarded. This raises the prospect that these other types of written documents could also come under the same scrutiny and suggests it could be prudent to hold on to these documents as well, at least until the record has been agreed to by the parties and certified.]
Commentary: The practical effect of this decision is to make CEQA processing and litigation more difficult and expensive for all concerned. For major projects we can look forward to the time and expense of locating, vetting, and indexing even more documents never to be cited in any brief or legal argument, hardly a value-added exercise. Unfortunately, as the court notes in its holding, the consequences for failing to secure these records can be substantial, as the court has the power to rule in favor of petitioners and vacate project approvals for that reason alone. It is worth noting that this is not a problem caused by the courts, but the failure of the Legislature to provide meaningful bookends to CEQA litigation.
¹The appellate opinion includes a number of other email/CEQA/PRA rulings. This blog highlights the rulings that have the broadest potential application.
William Abbott is Of Counsel and Daniel Cucchi is Senior Associate at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.