Tape recordings of public agency hearings must be included in the administrative record for a California Environmental Quality Act (“CEQA”) proceeding but a public agency does not have to provide a transcript where the recordings have not been transcribed. Documents referred to in a comment letter that can be found at a specific Web page have to be delivered upon request but documents that refer to a general Web site do not. Also, delivery of files maintained by a subcontractor is not required where the public agency has no rights in the subcontractor’s files. (Consolidated Irrigation District v. The Superior Court of Fresno County (— Cal.Rptr.3d —-, Cal.App. 5 Dist., April 26, 2012).
Facts
The City of Selma (“City”) approved a proposed commercial development, Rockwell Pond Commercial Project (“Project”), and certified a final environmental impact report (“EIR”). The Consolidated Irrigation District (“CID”) made a Public Records Act request for certain public records in City’s possession regarding the CEQA proceedings. CID later filed a lawsuit alleging City violated CEQA by approving the Project and certifying the final EIR.
The parties ultimately agreed the administrative record would be prepared jointly. The developer sent a DVD that contained scanned images of the proposed record. CID claimed the record was incomplete and demanded that the record include three transcripts and documents referenced in comment letters, some of which were available on the internet. The developer rejected most of CID’s requests for additional documents.
CID asked to conduct limited discovery because City refused to produce original correspondence, technical data, and documents used in preparing the EIR. CID asked to augment the administrative record and also filed a petition for writ of mandate under the Public Records Act seeking an order that requires City to provide CID with access to City’s project files, including files held by consultants. The trial court denied the motion for leave to conduct discovery, the petition for writ of mandate, and the motion to augment the record, except in regard to the documents the parties already agreed should be included in the augmented record.
Decision
The Public Records Act is designed to increase freedom of information by giving the public access to information that is in the possession of public agencies. CID sought access to subconsultant files. To be successful in its Public Records Act claim, CID must show that the subconsultant files it seeks qualify as public records that were in City’s possession.
There were two levels of consultants for the Project. The primary consultant, Land Use Associates, retained other consultants to address particular environmental topics. In order to be subject to the Public Records Act, the requested document must be in the possession of the agency from which they are sought. The court interpreted this requirement “to mean both actual and constructive possession.” “[A]n agency has constructive possession of records if it has the right to control the records, either directly or through another person.”
The contract at issue defines Land Use Associates as “Contractor” and provides that “City owns ‘all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, computer discs, and reports prepared by the Contractor.’” The court concluded that, because the contract “unambiguously refers to documents, data, and reports prepared by Land Use Associates,” it could not “extend that provision to include materials prepared by subconsultants without rewriting the contract of the parties.” The court concluded that the substantial evidence supports the finding that City did not control or have ownership rights in the subconsultants’ files.
CID sought from City transcripts prepared by a certified shorthand reporter of public hearings before the city council. City claimed the transcripts do not exist but that CID could purchase a copy of the tape recordings from the hearings and have them transcribed. City included the minutes of the meetings in the record submitted to CID. CEQA, at Public Resources Code 21167.6, subdivision (e)(4), provides that the record of proceedings shall include the transcript or minutes of the proceedings before a decisionmaking or advisory body. A transcript is “a verbatim account of what was said at a proceeding in which the words are recorded in a visual, not auditory, format.” Under this definition no transcripts of the hearings exist. However, the court concluded that the tape recordings of the hearings qualify as “other written materials” for the purposes of Public Resources Code section 21167.6, subdivision (e)(10) and, therefore, copies of the tape or audio recordings should have been included in the administrative record where no transcripts were prepared.
CID also asserted the record of the proceedings should have included studies and reports that were referred to in comment letters. In the first category were documents previously provided by CID to City. The second category includes documents named in comment letters that indicated they could be located through a general Web site, a term used by the court to refer to an organization’s home page. When a Web site is accessed, further searching must be conducted to find the documents that were referenced in the letter. The third category consists of documents that were named in the comment letters and referred to a specific Web site page containing the document. The term “specific Web page” was defined by the court as “the location on the World Wide Web that (1) is identified by a unique address known as a Uniform Resource Locator (URL) and (2) contains the document referenced in the comment letter.”
Section 21167.6 contains a list of materials that are required to be included in the record of proceedings. These materials include “[a]ll written comments received in response to, or in connection with, environmental documents prepared for the project, including responses to the notice of preparation” and “[a]ll written evidence or correspondence submitted to, or transferred from, the respondent public agency with respect to compliance with [CEQA] or with respect to the project.”
The court found that the letters sent by CID and other agencies to City are not “written comments received” because it interpreted the term “comment” as not including “documents cited to support the assertions and contentions made in the comment letter.” Instead, documents cited in comment letters are potential “evidence,” which means “something that tends to prove or disprove an alleged fact.” The court found that the phrase “written evidence . . . submitted to” could include documents on the World Wide Web.
The term “submitted to” within the meaning of section 21167.6 “is concerned with the effort that must be expended by the lead agency in using or studying the ‘written evidence’ presented.’” “Written evidence” has been submitted to a public agency within the meaning of section 21167.6 “when the commenter has made the documents readily available for use or study by lead agency personnel.” Hard copies of documents CID delivered to City in connection with other projects were “documents readily available for use by City personnel and, therefore, the documents are part of the proceedings under section 21167.6.”
Documents named in CID’s comment letters that referenced a general Web site and contain a specific request that they be included in the record were not “submitted to” City. Lead agency personnel should not be required to spend time searching for documents that a commenter has stated can be found on a general Web site. It would take little effort for the commenter to include a specific URL of the Web page where the agency could locate the document. The court concluded that the documents referenced with a citation of a general Web page were not made readily available to City and are not part of the record within the meaning of section 21167.6. However, documents named in the comment letters that contain citation to a specific Web page were readily available to City and are a part of the record. Documents named in comment letters that lack a cite to any Web page or site are not readily available to lead agency personnel and therefore have not been “submitted to” the agency for purposes of section 21167.6.
Questions
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