In Getz v. County of El Dorado, the Third District Court of Appeal has overturned a trial court decision in favor of the County of El Dorado, finding that the County is required to disclose over 40,000 records in response to a request made under the California Public Records Act (“CPRA”). The lower court had ruled that the County was correct in refusing to provide tens of thousands of emails to the requester because his request required the overly burdensome task of reviewing the records for responsiveness and potentially applicable exemptions that allow records to be withheld from disclosure under the CPRA. The Court of Appeal explained that establishing that a request is overly burdensome requires more than the vague prospect of having to review a large volume of records.
Background
Dean Getz is a member of the Serrano El Dorado Owners Association, the HOA at a community developed and managed by the Parker Development Company (“Parker”). Getz suspected that Parker had mismanaged the development and was concerned about communications between Parker and the County. To that end, Getz initially requested “all development plans, proposals, reports and applicable correspondence including electronic (e.g., email) ‘records’ by and between El Dorado County (EDC) and any other party pertaining to [a planned development].” The County spent approximately 80 hours identifying and reviewing records responsive to Getz’s request. Upon reviewing the records produced by the County, Getz believed not all records were provided and expanded the scope of the request to include all emails sent from January 2013 and August 1, 2018, between any email address from four domains associated with Parker and any County employee, regardless of their content.
In response to this request, the County prepared an index of approximately 47,000 potentially responsive emails for Getz. The County estimated it would take 40 to 50 business days to review all of the emails, and requested that Getz identify a narrower set of records in which he was interested. After some further discussion, Getz refused to narrow the request and the County did not provide the records.
Getz filed suit against the County and the County prevailed at the trial court level, the lower court concluding that Getz’s request was overbroad and unduly burdensome on the County.
Court of Appeal Ruling
Getz appealed the trial court decision, seeking disclosure of the 47,000 records collected by the County. On appeal, the County argued that some of the emails it had gathered were likely not “public records” related to Getz’s request, that it would take an inordinate amount of time to review the records for potentially applicable exemptions under the CPRA, including emails exempt because of a common interest between the County and Parker in litigation that was unrelated to the Serrano El Dorado Owners Association.
The Court of Appeal was unpersuaded by any of the arguments put forth by the County. The Court of Appeal interpreted the definition of public records broadly, as the CPRA requires, to include all emails sent or received by County employees using their County email addresses. The Court of Appeal dismissed the County’s claim that it would need to review the emails for such “primarily personal” emails because of the absence of any evidence from the County that any of the emails fell in this category.
Perhaps more shockingly to public agencies facing CPRA requests, the Court of Appeal dismissed the County’s “passing reference to various statutory exemptions from disclosure in the [CPRA]” finding the County failed to provide sufficient evidence that the County would need to review all the records for the applicability of such exemptions. For example, the Court found that the County had failed to prove a sufficient basis for the County’s claim that it would need to review all 47,000 records to determine if any were draft documents or contained exempt attorney-client communications.
In the absence of a more substantive showing of evidence from the County that it needed to closely review each of the 47,000 emails it found, the Court of Appeals found that the amount of work that would be necessary to review these records for potential exemptions did not constitute an undue burden on the County. Instead, the court framed the “overly burdensome” inquiry solely in the context of the effort required to identify responsive records. The Court stated, “An agency cannot resist disclosure based on the burden stemming from actions needed to assuage an abstract fear of improvident disclosure, a fear that could be avoided by simply setting privileged documents apart.” Here, the fact that the County was able to relatively quickly gather the 47,000 emails weighed strongly in Getz’s favor.
Key Takeaways for Public Agencies
- Public agencies may still ask a requester to narrow the request. However, where a CPRA request is not narrowed down by the requester, public agencies are nevertheless obligated to either provide the records or demonstrate with substantial evidence that the gathering of the records would be overly burdensome.
- Public agencies should think very carefully before withholding records on the grounds that a request is overly burdensome. Refusing to disclose all records on this basis should be reserved for requests that necessitate “needle in a haystack” searches, or requests that seek an extraordinarily large volume of records.
- Public agencies that nevertheless wish to assert that a CPRA request is overly burdensome because of the need for a careful review of potentially responsive records for applicable exemptions, must demonstrate specific reasons why a particular exemption might apply to the records. While not required by the CPRA, an agency might consider creating a “privilege log” as evidence if a decision is challenged in court. Or a letter denying disclosure based on any particular exemption should also explain why (e.g. “some records have been withheld from disclosure pursuant to Government Code section 6254(k), attorney-client privilege. Those records are communications between the agency’s counsel and staff.”)
- Whether or not a formal log is created, agencies are always well advised to keep a record of the basis for holding particular records. If challenged, that record will allow the agency to explain its rationale for withholding the specific record.
- To simplify the review of records in response to a CPRA request, the Court of Appeals recommends public agencies segregate exempt records from disclosable records when they are created. Staff and officials might consider “dragging and dropping” emails, for example, into specific folders when they are sent or received to accomplish this purpose.
Questions
If you have any questions regarding this Legal Alert, please contact the following attorneys from our office or the attorney with whom you typically consult.
Jeffrey Mitchell
jmitchell@kmtg.com | 916.321.4591
Mona Ebrahimi
mebrahimi@kmtg.com | 916.321.4597
Andreas Booher
abooher@kmtg.com | 916.321.4372
Olivia Clark
oclark@kmtg.com | 916.321.4290
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