Lead Agencies Must Take Special Care to Retain All Internal Agency Communications
By Gregory M. Bergman and Brian J. Bergman, Bergman Dacey Goldsmith
On November 10, 2020, the California Supreme Court—in a loss for public agencies throughout the state—denied review and requests for depublication of Golden Door Properties, LLC v/ Superior Court of San Diego, Lead Case No. D 076605, a combative case spanning years of litigation. In effect, this means that the Fourth District Court of Appeal’s strict reading of Public Resources Code section 21167.6 is now the law of the land. Public agencies everywhere must now train their employees and adjust their document retention policies to comply with the Fourth District’s reading of Public Resources Code section 21167.6.
Golden Door Properties, LLC v. Superior Court of San Diego derives from several CEQA writ petitions related to San Diego County’s (“County”) approval of the Newland Sierra Project. The main issue on appeal was the impact of the County’s document retention policy, which directed the County’s computers to automatically delete emails not marked or saved by County staff as “official records” after 60 days. The effect of this policy meant that, with respect to the Newland Sierra Project, the County had destroyed approximately 2.5 years of emails before a PRA request was sent. Because of this destruction, the County argued that these emails could not be produced in response to the petitioners’ PRA requests and written discovery. A trial court discovery referee ruled in favor of the County, holding that there was no duty to retain emails under CEQA, and therefore denied efforts by petitioners to compel the agency to produce the records.
A unanimous three judge panel from the Fourth District Court of Appeal Court disagreed, ruling that the County’s 60-day email destruction policy is unlawful as it applied to documents that would constitute the administrative record under CEQA.
The Court concluded that Section 21167.6(e) is both mandatory and inclusive—the administrative record must include the itemized categories of records found within Section 21167.6(e), and those listed categories should be interpreted broadly. Specifically, the Court determined that the use of “any” and “all” in Section 21167.6(e) and its subdivisions “cannot reasonably be interpreted to mean all written materials, internal agency communications, and staff notes except those emails the lead agency has already destroyed.” In other words, the County could not circumvent its responsibilities under Section 21167.6(e) by pointing to its local 60-day document retention policy. The Court came to this conclusion, in part, because it is consistent with CEQA’s stated purposes of governmental transparency and informed decision-making.
What types of internal agency communications must be included? In order to comply with CEQA, the administrative record must include “all internal agency communications, including staff notes and memoranda related to the project or to compliance with” CEQA. However, this definition is not limitless—CEQA does not require a public agency to retain “every email and preliminary draft.” The Court limited the retention requirement by explaining that the email equivalent of “sticky notes, calendar faxes, and social hallway conversations” (i.e., “emails that do not provide insight into the project or the agency’s CEQA compliance with respect to the project”) are not within the scope of Section 21167.6 and are not required to be saved.
What about the deliberative process privilege? The Court rejected the County’s evidence supporting its invocation of the deliberative process privilege to more than 1,000 documents that were withheld during discovery. Despite producing a privilege log, as well as a declaration describing the basis for the County’s assertion of the privilege, the Court held that the County’s evidence amounted to nothing more than a recitation of the public policy behind the deliberative process privilege. The Court held that if a party withholds administrative record documents on the basis of the preliminary draft exemption or the deliberative process privilege, the party “must describe the justification for nondisclosure with reasonable specific detail and demonstrate that the information withheld is within the claimed privilege or exemption.”
How long do these documents need to be saved? The Court pointed to CEQA’s short statute of limitations period and reasoned that the “lapse of applicable limitations period is a relevant consideration” in determining how long a public agency should hold on to the administrative record emails.
In light of the California Supreme Court’s rejection to review the Fourth Circuit’s decision in Golden Door, we recommend the following:
- For any staff member working on a project undergoing CEQA review, those staff members must be trained to specifically save all internal agency email communications that provide any insight into the project or to the agency’s CEQA compliance.
- Reviews your document retention policies, and ensure that there is a specific exception for compliance with Public Resources Code section21167.6 and Golden Door.
- Because the Golden Door case makes it more difficult to invoke the preliminary draft exemption or deliberative process privilege, an agency must be prepared to support its assertion with “reasonably specific detail” to enable the requesting party and the court to evaluate the applicability of the preliminary draft exemption or deliberative process privilege. Simply reciting the policy goals of the preliminary draft exemption or deliberative process privilege is not enough.
Should your entity require further information regarding this case, a public entity’s duties to preserve records, or if you would like to discuss a similar legal matter, please contact Brian J. Bergman at (310) 470-6110 or bbergman@bdgfirm.com.
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