In Golden Door Properties, LLC v Superior Court, the Fourth District Court of Appeal held that e-mails within the scope of Public Resources Code section 21167.6 are required by law to be kept and should not have been automatically destroyed after 60 days, as provided for in San Diego County’s records retention schedule. They further held that merely citing the policy behind Public Records Act exemptions is insufficient to justify withholding records in the context of discovery.
Background
Golden Door owns a spa and resort in San Diego County. In January 2015, Newland Real Estate Group, LLC (Newland) proposed 2,135 new residential units and 81,000 square feet of commercial development (the Project) in close proximity to Golden Door’s property. Golden Door’s opposition to the Project began in 2014 with a letter to the County stating that the Project violated the general plan. There was a 2016 lawsuit related to the Project, but not on California Environmental Quality Act (CEQA) grounds. Golden Door then filed a Public Records Act (PRA) request for Project related materials in June 2017. When responsive documents to the PRA request were less than expected, Golden Door discovered that the County had a “60-day auto-deletion program for e-mails that do not meet the criteria for an official record.”
Following several efforts by Golden Door to get at the documentation related to the CEQA determination, Golden Door filed motions to compel discovery. A referee was appointed by the court for the various motions on that topic. The referee then made decisions regarding the missing emails and lack of evidence in the record, which the superior court adopted.
Golden Door next petitioned to augment the record with documents the County had omitted. The superior court, relying on the referee’s determination, mostly denied the motion to augment the record, only allowing for minor augmentation at the consent of the County.
Newland ultimately withdrew the Project when in March 2020 San Diego voters disapproved of the general plan amendment for the Project. However, because of the likelihood of a recurrence of the issue regarding retention of e-mails on a CEQA project, the Court of Appeals rendered a decision.
Court of Appeals Holding
The Court of Appeal held that the County’s e-mail destruction policy cannot lawfully allow the automatic destruction of records that comprise the administrative record in a CEQA matter, citing to Public Resources code section 21167.6. That code section is broad and expansive and means that the administrative record consists of “pretty much everything that ever came near a proposed development or to the agency’s compliance with CEQA in responding to that development.” The trial court has no discretion to exclude matters a statute makes a mandatory part of the record.
In reaching that determination, the court held that section 21167.6 is mandatory in two respects: first, the Legislature’s use of the phrase “notwithstanding any other provision of law” demonstrated legislative intent to supersede any other law relating to document retention; and second, the term “shall” before the list of documents to be included in the CEQA administrative record shows that the list is mandatory.
The mandatory retention of documents under this section is consistent with CEQA policies, allowing not just project opponents access to information, but the public generally to know the basis on which a CEQA determination is arrived at by officials. Further, a complete record allows the court to be able to determine if the agency’s determinations are lawful and supported by substantial evidence. Failure of the County to create an accurate administrative record by deleting emails after 60 days had wide rippling effects.
The court also held that it was not incumbent upon project opponents to notify a public agency to comply with its obligation under section 21167.6. These records must be clear, complete, and accurate not because someone has challenged them to be so, but because the law requires it.
The court allowed that not all email need be kept, but those that relate to the CEQA action must be kept in accordance with section 21167.6. The court acknowledges this may still be massive amounts of data, but concluded that the time period for CEQA challenges is short, and therefore retaining e-mails for the duration of a project (through resolution of any CEQA action) is not overly-burdensome. The court noted that the expiration of the time limits for a CEQA challenge is relevant in considering when the emails can be purged. The County’s complaint concerning the expense of storing e-mail messages was not compelling to the court.
The County also claimed 1,900 documents were privileged and thus exempt from disclosure under a PRA request in the context of discovery review. The referee, without analyzing or reviewing any of the documents or even generic categories of documents, upheld the privilege or exemption of all 1,900 documents. The court held that the referee’s ruling was incorrect and that the County made an insufficient showing to support its claim that those documents are privileged or exempt. The County must describe the justification for nondisclosure with reasonably specific detail and demonstrate that the information withheld is within the claimed privilege or exemption to enable the court to make a determination on those grounds. This is balanced against the fact that the agency is not required to disclose the information it seeks to protect. Merely restating the principle of law that allowed the documents to be withheld is insufficient as well. The Court did not offer further guidance on how, precisely, that should be done, only stating that the County should file supplemental declarations with additional information so that a court could make a determination on the applicability of the claimed privilege or exemption to documents or groups of documents.
The Court of Appeals vacated several decisions of the superior court, while keeping some, and remanded the case for further proceedings in conformity with their opinion.
Key Take Away
Public agencies should ensure that all relevant documentation related to a project, including e-mails, are kept for the duration of that project (at least through the period to challenge the project) in order to comply with Public Resources Code section 21167.6. Additionally, in the context of discovery, the public agency should provide a more specific explanation of what the documents are in order for the court to determine if the documents qualify as privileged or exempt.
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
Lisa Tennenbaum
ltennenbaum@kmtg.com | 916.321.4345