Administrative Record

Preparing an administrative record is one of the first actions taken in CEQA litigation. (Pub. Resources Code, § 21167.6.) The administrative record provides the reviewing court and parties with the information necessary to evaluate and argue whether the agency committed a prejudicial abuse of discretion or if there is substantial evidence supporting the agency’s decision. (See Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 117.)

At the outset of litigation, the petitioner must decide whether it will elect to prepare the administrative record or request the agency do so. (Pub. Resources Code, § 21167.6(a), (b)(2).) Alternatively, the parties may agree to an alternative method of preparing the record. (Pub. Resources Code, § 21167.6(b)(2).) When the petitioner opts for the agency to prepare the record, it must serve the request on the agency within 10 business days of filing suit. (Pub. Resources Code, § 21167.6(a).) The public agency must complete the record no later than 60 days from the date that the request was served, though the parties may stipulate to extensions when litigation necessitates the inclusion of voluminous materials. (Pub. Resources Code, § 21167.6(b)-(c).) If the petitioner elects to prepare the record but fails to timely produced a complete record, the agency may be within its rights to prepare the record to ensure completeness and avoid unnecessary delay. (See LandWatch San Luis Obispo County v. Cambria Community Services Dist. (2018) 25 Cal.App.5th 638, 644-645 (LandWatch).) Regardless of which party or combinations of parties prepare the record, the respondent agency will certify the record, lodge a copy of the record with the court, and serve a notice to that effect to all involved parties. (Code of Civ. Proc., § 1094.6(c); Pub. Resources Code, § 21167.6 (b)(1).)

Record Costs

The initial cost of record preparation is placed on the parties, not the agency. (Coalition for Adequate Review v. City and County of San Francisco (2014) 229 Cal.App.4th 1043, 1052 (Coalition for Adequate Review); Pub. Resources Code §§ 21167.6(b), (f).) This shields taxpayers from bearing the cost of record preparation for a lawsuit brought by a private individual and contains costs while expediting litigation. (See Coalition for Adequate Review, supra, 229 Cal.App.4th at p. 1052; California Oak Foundation v. Regents of University of California (2010) 188 Cal.App.4th 227, 292-293 (California Oak).) “Accordingly, a petitioner can be ordered to pay for a requested record during the early stages of the litigation, before the merits of the case are ever heard.” (Coalition for Adequate Review, supra, 229 Cal.App.4th at p. 1053.)

The party which pays for record preparation at the outset is not necessarily the party which ultimately foots the bill at the conclusion of litigation. If the prevailing party prepared or paid for the record, it may recover the reasonable costs it incurred in doing so. (See Cal. Code Civ. Proc. §§1094.5(a), 1095, 1032(b) and California Oak, supra, 188 Cal.App.4th at p. 295 [awarding over $51,000 in record preparation fees to the prevailing party]; LandWatch, supra, 25 Cal.App.5th at pp. 643-645; Otay Ranch, L.P. v. County of San Diego (2014) 230 Cal.App.4th 60, 70.) However, if the lead agency delegates record preparation to a real party in interest without the petitioner’s consent, the real party generally cannot recover costs from the petitioner. (See Hayward Area Planning Assn. v. City of Hayward (2005) 128 Cal.App.4th 176, 182-185.) Rather, real parties may be entitled to costs when the agency prepares the record and the real party reimburses the agency for that record preparation cost. (See Citizens for Ceres v. City of Ceres (2016) 3 Cal.App.5th 237, 244-246.) To minimize potential costs, petitioners often elect to prepare the record. Even where a petitioner elects to prepare the administrative record, if a petitioner makes excessive demands on the agency for documents and does not prevail, the agency may be entitled to recover costs related to the petitioner’s flagrant demands. (See St. Vincent’s School for Boys, v. City of San Rafael (2008) 161 Cal.App.4th 989, 1014, 1018-1019.) Further, if a petitioner elects to prepare the record but produces an incomplete record, the agency may recoup costs of preparing a complete record. (See LandWatch, supra, 25 Cal.App.5th at pp. 644-645; Coalition for Adequate Review, supra, 229 Cal.App.4th at pp. 1055-1056.) However, this does not mean an agency can overcharge a party or demand payment for unnecessary record preparation activities. (See Wagner Farms, Inc. v. Modesto Irrig. Dist. (2006) 145 Cal.App.4th 765, 767-768.)

Record Contents

According to one court, administrative records “include pretty much everything that ever came near a proposed development or to the agency’s compliance with CEQA in responding to that development.” (Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, 64.) Administrative records contain an agency’s “files on the project”, including project applications, staff reports, contracts, site plans, notices, public comment letters, proposed decisions, findings, public drafts, staff emails, meeting transcripts, CEQA documents (i.e., EIRs, Negative Declarations, and Notices of Exemption), and final decisions. (Pub. Resources Code, § 21167.6(e).) Records are commonly thousands – or tens of thousands – of pages in length. For courts and litigators to effectively navigate the resultant tome, records must be organized and accompanied by an index in accordance with local rules. (See Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 365, 372-373.)

Disputes over the record itself typically center on whether to include or exclude particular materials. (San Francisco Tomorrow v. City and County of San Francisco (2014) 229 Cal.App.4th 498, 529-535 (SF Tomorrow); County of Orange v. Superior Court (2003) 113 Cal.App.4th 1, 1 (County of Orange).) Agencies must retain – and cannot automatically destroy – all documents that section 21167.6(e) mandates for inclusion in the administrative record. (Golden Door Properties, LLC v. Superior Court (2020) 53 Cal.App.5th 733, 761-773 (Golden Door).) Some relevant information is excluded from administrative records, such as attorney-client privileged information, attorney work product, and deliberative process materials. (See Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 305-306, 311.) Paralleling the obligations of the Public Records Act, an agency may withhold a document from the record if it can demonstrate that the public interest in confidentiality clearly outweighs the public interest in disclosure. (Id. at 307.) But, when in doubt, it is better to err on the side of preparing an overinclusive record (unless there is a specific provision or privilege to be relied upon) to avoid the inevitable debate over why a document was withheld. (County of Orange, supra, 113 Cal.App.4th at p. 1.)

While expansive in scope, the requirements of Public Resources Code section 21167.6 subdivision (e) do not extend to files which the agency does not possess the requisite rights to. (Consolidated Irrigation Dist. v. Superior Court (2012) 205 Cal.App.4th 697, 727-728.) Section 21167.6(e) calls for the inclusion of the “public agency’s files”, which has been interpreted by a court to refer to files the public agency has a possessory interest in. (See id. at p. 727.) Possession in this context denotes custody, control, or dominion and includes both actual and constructive possession. (Ibid.) The need for this distinction arises when considering an agency’s obligation to include consultant and subconsultant files in the record. (Ibid.; see Golden Door, supra, 53 Cal.App.5th at pp. 779-781.) To determine whether an agency’s rights to consultant and subconsultant materials rise to the level of possession, courts have examined the nature of the relationship (for example, the contract) between the agency and the consultant to determine if substantial evidence supports a finding that the agency had explicit rights to the documents in question or exerted sufficient control over the consultant. (See Consolidated Irrigation, supra, 205 Cal.App.4th 697 at pp. 710-711, 727-728.)

Disputes may also arise over whether particular evidence is “record” or “extra-record” evidence, as the distinction is critical. Evidence that falls within the scope of section 21167.6(e) must be included in the record, even if it was not before the decisionmaker at the time it made CEQA determinations. (Golden Door, supra, 53 Cal.App.5th at pp. 765-768; SF Tomorrow, supra, 229 Cal.App.4th at p. 532.) On the other hand, courts generally do not consider extra-record evidence in their review. (Porterville Citizens for Responsible Hillside Dev. v. City of Porterville (2007) 157 Cal.App.4th 885, 896.) Extra-record evidence may be considered in administrative mandamus proceedings only if it meets the requirements set forth by the court in Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559 – the evidence has to have existed before the agency made its decision, and it was not possible in the exercise of reasonable diligence to present the evidence to the agency before the decision was made so that it could be considered and included in the administrative record. (Id. at p. 578.)

On March 9, 2012, the Fifth Appellate District ordered a portion of its decision in Consol. Irrigation Dist. v. City of Selma (2012) __ Cal.App.4th __ (2012 Cal. App. LEXIS 277) published. Specifically, the Court ordered all but Sections I.A.,...

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2012

Thomas Law Group

Court Awards Agency’s Costs of Preparing Administrative Record Despite Petitioner Electing to Prepare the Record

In an unpublished decision, Landwatch San Luis Obispo v. Cambria Community Serv. Dist., 2d Civil No. B229545 (2012), the Court upheld a trial court's cost award of $14,615.41 to the Cambria Community Service District for time spent preparing the administrative...

Administrative Record