The Fourth District Court of Appeal Rejects Narrow Interpretation of Public Resources Code Section 21167.6 and Requires Agencies to Retain Project-Related E-mails

August 27th, 2020

By: Thomas Law Group

In Golden Door Properties, LLC v. Superior Court of San Diego County, the Fourth District Court of Appeal overturned a San Diego Superior Court ruling denying Plaintiffs’ motions to compel discovery. The appellate court ruled Public Resources Code section 21167.6 requires the retention of all e-mails submitted to or transferred from a public agency with respect to a project. The case may have a significant impact on agencies’ electronic document and e-mail retention policies. Agencies would be wise to retain all documents described in section 21167.6(e).

The dispute arose following preparation of an EIR for the proposed Newland development near Golden Door’s property in San Diego County (the Project). The County rejected a similar development on the site in 2009. In July 2017, Golden Door submitted a Public Records Act request for all documents and communications in the County’s possession pertaining to the Project. The Project’s environmental review had been ongoing for nearly three years; however, in response to the Public Records Act requests, the County produced only 42 e-mails covering the 60-day period from September through October 2017. In response to Golden Door’s inquiry as to how the Project could have generated only 42 e-mails, County counsel explained the County had a 60-day auto-deletion program for e-mails failing to meet the criteria for an official record. The program requires a user to flag an email as an “official record,” in which case it is preserved for two years. Plaintiffs’ attorneys received no response to the follow-up question regarding where were the correspondence from early 2015 to September 2017 and filed another Public Records Act request for such correspondence. In May 2018, County counsel responded that non-official e-mails were automatically deleted and explained there was no record of the number of deleted e-mails. However, the County’s attorney agreed to obtain and produce copies of deleted e-mails that the County had a contractual right of possession to, pursuant to outside consultant contracts and agreements. The County later changed its position and refused to produce the consultants’ copies.

On June 18, 2018, the County released the Project DEIR. The next day, Golden Door filed a non-CEQA writ of mandate and complaint for declaratory and injunctive relief (the Records Action). The Records Action alleged, among other arguments, that the County improperly destroyed official records and improperly withheld records under the Public Records Act. Golden Door sought an order directing the County to take immediate steps to identify deleted and destroyed electronic official records regarding the Project and recover as many deleted and destroyed records as reasonably possible.

In July 2018, the superior court entered a temporary restraining order to halt the e-mail deletion policy. In September 2018, the Project was approved and the EIR for the project certified by the County Board of Supervisors. In October 2018, a variety of environmental groups sued, alleging that the County violated CEQA by certifying the EIR and by automatically deleting public records. In January 2019, Golden Door served a request for discovery under the Civil Discovery Act, seeking the same documents sought under their previous Public Records Act requests. Golden Door also served two of the County’s environmental consultants with subpoenas seeking Project-related documents. The consultants refused to turn over the requested documents on the ground that the CEQA case should be decided on the agency’s administrative record before the Board of Supervisors at the time of Project approval. Golden Door filed a motion to compel, which the court’s referee denied on a number of grounds, including that section 21167.6 “is not a document retention statute” but describes documents to be included in CEQA proceedings, and that the County and Project developers’ documents are protected by the common interest doctrine.

While Plaintiffs filed additional actions at the superior court level against the project on CEQA grounds, the Records Action underwent a series of procedural volleys between the superior court, the Court of Appeal, and the California Supreme Court. In the interim, County voters disapproved the General Plan amendment for the Project by referendum, which caused the County to rescind and vacate the EIR, General Plan Amendment, and most other Project entitlements. Finally, all the petitions were consolidated. During discovery, the superior court adopted the referee’s previous recommendations to deny Golden Door’s motion to compel discovery of the missing electronic documents.

The Referendum Did Not Moot the Writ Petitions
The Court of Appeal first addressed whether the referendum disapproving the General Plan Amendment mooted the petitions. The Court of Appeal held that the issues related to document disclosure were not moot because the County had not rescinded “all Project approvals” and the developer had asserted that it planned to revise and revisit the Project at a later date. The Court of Appeal additionally stated that, even if moot, the petitions presented an issue of important statewide significance and that the controversy had the potential to recur.
Section 21167.6 Requires Retention of Record Documents, Including E-mails
The Court found the County’s e-mail destruction policy unlawful because section 21167.6 is mandatory and broadly inclusive; it applies “[n]otwithstanding any other law” and states the record “shall include . . . all of the following [enumerated] items . . . .” Because that section applies notwithstanding any other law, to the extent County administrative policies provide for the destruction of e-mails that section 21167.6 mandates be retained, section 21167.6 controls.

The Court noted that the purpose of section 21167.6 is to both provide public information on decision making and prescribe the documents that “shall” be in the record in a CEQA challenge. This includes all written evidence or correspondence submitted to, or transferred from the public agency with respect to the project pursuant to subdivision (e)(7). Under subdivision (e)(10), the record “shall” also contain all internal agency communications, including staff notes and memoranda related to the project. Interpreting 21167.6 in this manner is consistent with core CEQA policies of public information, informed-self-government, environmental protection, and political accountability.

The County contended that section 21167.6 “does not mandate document retention” but instead “lists documents to be included in a CEQA record.” The Court disagreed, and noted it would be pointless for the Legislature to have enumerated the mandatory contents of the record of proceedings if, at the same time, an agency could delete documents unfavorable to the legal sufficiency of their decision making, then claim they are not in the record because they no longer exist.

The County also argued that CEQA Guidelines clarify that certain types of documents must be retained for specific periods of time, such as when considering the retention of comments on a draft EIR, and must retain the final EIR for a reasonable period of time. However, the Court pointed out that CEQA Guidelines are not enacted by the Legislature and are rather “an indirect manifestation of legislative intent.” The Court additionally explained that the CEQA Guidelines provisions cited serve different purposes, such as addressing the statute of limitations for CEQA actions, rather than addressing the record of proceedings. The Court found the unambiguous mandatory and inclusive language in section 21167.6 itself the most reliable indicator of legislative intent.

The County further asserted that the court’s interpretation would be unduly burdensome from a practical and economic standpoint, based on the cost to store emails, $76,000 per month, and feared the Court’s interpretation would overburden and delay the County’s responses to Public Records Act requests. The Court noted that CEQA does not require the retention of “every email and preliminary draft.” Rather, agencies are directed to retain evidence or correspondence submitted to, or transferred from the County “with respect to” CEQA compliance or “with respect to the project.” The Court stressed that its holding does not mandate the retention of the e-mail equivalent of sticky notes, calendaring faxes, or “social hallway conversations.” Rather, the goal is to retain emails that provide insight into the project and the agency’s CEQA compliance with respect to the project. Additionally, the Court noted that these documents do not need to be retained into perpetuity. While it declined to opine on the length of time documents must be retained, it indicated documents should be retained at least until the statute of limitations passes without litigation commencing or until a final judgment is entered in litigation.

The Court Reiterated the Distinction Between Record Evidence and Extra-Record Evidence
The Court of Appeal also addressed the referee’s conflation of record evidence and extra-record evidence. The referee concluded discovery was precluded because Plaintiffs did not satisfy the exemption to allow admission of extra-record evidence under Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559 (WSPA). The Court of Appeal clarified WSPA was inapplicable because Plaintiffs sought admission of record evidence, not extra-record evidence. Citing Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, the Court explained that the first inquiry is to determine whether evidence is part of the record of proceedings under section 21167.6(e). The referee went off track by jumping directly to consideration of whether the evidence was admissible as extra-record evidence under WSPA, instead of recognizing it was properly included in the record under section 21167.6(e). The Court clarified that record documents do not become extra-record documents simply because they were not in front of the decision makers.

County and Developer Properly Invoked the Common Interest Doctrine
The Court of Appeal then analyzed the referee’s reliance on the common interest doctrine to deny Plaintiffs’ motion to compel. The Court identified a circuit split between Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889 (Ceres) and California Oak Foundation v. County of Tehama (2009) 174 Cal.App.4th 1217 (California Oak) regarding the common interest doctrine when considering communications prior to EIR approval. Ceres held that the common interest doctrine does not protect communications shared in the preapproval stage of project development because, at that point, the lead agency is neutral and objective, while applicant’s primary interest is in producing a favorable EIR. California Oak found that documents shared between an agency and developer remained privileged under the common interest doctrine because the agency attorney’s communication was intended to produce an EIR that would be CEQA-compliant. In this respect, the agency’s and applicant’s interests were aligned.

Ultimately, the Court did not weigh in on the apparent split of authority, finding Ceres distinguishable. Unlike Ceres, before Project approval in this case, Golden Door had already sued the lead agency and developer’s previous attempts for approval in 2009. Golden Door’s litigation strategy created a common interest between the Project developer and the County in defending against those cases, necessitating a joint defense. While allowing the common interest in order to defend the two preapproval lawsuits, the Court cautioned that the “common interest does not otherwise alter the County’s duties as lead agency under CEQA.”

Agencies Asserting the Preliminary Draft Exemption or Deliberative Process Privilege Must Justify Their Claims with Specificity
The Court of Appeal ruled that the County’s reliance on the preliminary draft exemption and deliberative process privilege were not supported. The Court found the record did not support a finding that approximately 1,900 documents were privileged or exempt. The County merely recited the public policies supporting the exemption and privilege but failed to specify why disclosure would be harmful as applied to each of the contested documents. The Court ruled the County should have the opportunity to file supplemental declarations in the superior court to support its exemption and privilege claims.

Key Point:
Because Public Resources Code section 21167.6 is both mandatory and inclusive, lead agencies must retain writings and e-mails described in section 21167.6 at least until the statute of limitations period has expired.

In order to successfully claim the preliminary draft exemption or deliberative process privilege to withhold documents from the record, the agency must support its claim with “reasonably specific detail” demonstrating that the information withheld is within the claimed privilege or exemption. While the court acknowledged that the agency has a “difficult task of justifying its withholding the documents without compromising that vey act by revealing too much information,” it provided little guidance on exactly what an agency would need to say to support a claim of privilege that would not be the equivalent of revealing the content of the documents.