On February 10, CSDA submitted a letter to the California Supreme Court requesting depublication of the Third District Court of Appeal opinion in Getz v. Superior Court of El Dorado County (C091337). In Getz, the Third District ruled in favor of a public records requester seeking records from the County of El Dorado involving a real estate developer, homeowner’s association, and law firm.
Although the records request produced approximately 47,000 potentially responsive records, the appellate court held that the request was not “overbroad or unduly burdensome” because the County did not provide substantial evidence that the records needed to be reviewed first to see if exemptions apply, which the appellate court held it must do before a request could be considered overbroad or unduly burdensome. If left published, this opinion will result in administrative challenges for special districts managing voluminous public records act requests and will make it more difficult to reject or negotiate overbroad or burdensome requests.
Getz submitted a request under the California Public Records Act (PRA) to the County to produce, “including drafts—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…” In response, the County produced an index of responsive documents, including emails, on a CD with hyperlinks to the text of the e-mails or documents. After reviewing the e-mails produced, Getz believed that not all responsive records were produced. Getz submitted another request: “I am seeking electronic copies of any/all emails by or between ANYONE (i.e., any department) within the County of El Dorado and anyone at the email domains of ‘serranohoa.org’, ‘@parkerdevco.com’, @hsmlaw.com’ and/or ‘@mcnallytemple.com’ from January 1, 2013 to date in the County’s possession…”
The County notified Getz that approximately 47,000 e-mails were potentially responsive to the request, of which 42,582 e-mails were newly identified, and asked Getz to “further refine your request in order to allow for a more focused search and to reduce the County’s burden in reviewing the responsive records prior to production.” Getz responded that he did not believe he was required to narrow the focus of the request, but that the County was required to produce all requested documents. Upon request, the County produced an index of 42,582 e-mails and asked Getz to narrow his focus to describe identifiable public records relevant to his inquiry. The index identified the sender, recipient, subject, date and whether the e-mail had an attachment. Getz refused to further narrow the request, and demanded the County produce the 42,582 emails.
Appellate Court Decision
After the trial court ruled in favor of the County, the Third District Court of Appeal reversed, ruling that the trial court’s finding that the request was “overbroad and unduly burdensome” is not supported by substantial evidence because the County had already located and indexed the responsive documents using the criteria in Getz’s request before he filed a petition for writ of mandate seeking the records. The appeals court also held that a public agency must make some showing that exempt or privileged information exists in the records requested.
In a dissent from the majority, Justice Krause argued that Getz’s request is overbroad and unduly burdensome and that the substantiated burdens on the County—expense, time, and inconvenience—to review the initial batch of potentially responsive e-mails clearly outweigh the speculative benefit underlying Getz’s unfocused records request.
CSDA Letter to Supreme Court
The CSDA letter to the Supreme Court was drafted by Kane Thuyen from law firm Burke, Williams, and Sorensen, LLP and member of the CSDA Legal Advisory Working Group. Joined by the California State Association of Counties (CSAC) and League of California Cities (Cal Cities), the CSDA letter to the California Supreme Court urges the Court to depublish the Getz opinion because it is wrong on several points of law and establishes a precedent that is overbroad and may be misused. The CSDA letter argues that the opinion: 1) mistakes the duty to provide a further response with the improper withholding of disclosable records, 2) improperly concludes that a failure to provide further response results in the disclosure of records that have not been reviewed for exemptions, 3) adds requirements for indexes beyond what is required in the law, and 4) improperly concludes that an agency cannot use administrative burdens to argue a request is unduly burdensome.
To read the CSDA letter, visit the Legal Advocacy webpage. CSDA will continue to monitor this case and inform our members if it is depublished. For questions about this case and how it may impact your district, contact CSDA Deputy General Counsel Mustafa Hessabi at firstname.lastname@example.org.