5 Considerations for Preparation of Administrative Records
The administrative record is the heart of any administrative mandamus proceeding, including under the California Environmental Quality Act (CEQA). Because the administrative record generally comprises the entire universe of evidence, the contents of the record are critical. Accordingly, the California Court of Appeal, Fourth District’s recent decision in Golden Door Properties, LLC v. Superior Court underscores the importance of proactive record-keeping for public agencies. Public agencies should consider the following practical tips to ensure their record retention polices comply with the requirement to preserve documents for administrative records in CEQA cases.
1) Keep all relevant documentation related to a project, including e-mails, for the duration of that project.
The contents of a CEQA administrative record are governed by Public Resources Code section 21167.6. Courts have consistently held that, although not an exhaustive list, all items described in section 21167.6 must be included in the administrative record. How agencies should preserve “other written material” has been the subject of recent cases:
Under Golden Door, agencies cannot destroy e-mails related to a project or the project’s CEQA compliance. During the course of a records request, the County of San Diego revealed it had destroyed more than 2 years of emails related to a project pursuant to its 60-day email retention policy. The court held that it would defeat the purpose of section 21167.6 to allow agencies to delete unfavorable documents under a blanket policy and then claim those documents should not be in the record because they no longer exist.
This guidance does not mean that agencies must retain even the most casual email exchanges. Golden Door concedes that CEQA does not require a public agency to keep “the e-mail equivalent of sticky notes, calendaring faxes, and social hallway conversations.” If an email does not provide insight into the project or its CEQA compliance, it would be fine to delete it.
Agencies also do not need to retain emails forever. If CEQA’s short applicable limitations period lapses with no action having been commenced, public agencies may consider that fact as relevant in determining whether specific emails must be retained.
Audio and video recordings
Agencies must disclose audio or video recordings of project-related public agency meetings, both in addition to and in the absence of written transcripts. This requirement holds even if the committee or board meeting transcript or recording was never reviewed by the lead agency’s decision making body. See, e.g., San Francisco Tomorrow v. City and County of San Francisco.
Agencies should also establish clear procedures for turning over consultant reports at the end of consultation. Contracts with consultants should explicitly grant agencies ownership rights of all consultant and sub-consultant technical reports prepared during the environmental review process. Sub-consultants are not directly under agency control. Courts have held that sub-consultant reports will not constitute a public record if the agency does not provide for ownership rights of the sub-consultant’s work product under the agency’s contract with its primary consultant. See Consolidated Irrigation Dist. v. Superior Court.
Any publicly disclosed draft version of project documents must be included in the administrative record. Courts have grappled with whether administrative records must also include drafts not released to the public. While there is no seminal case on this issue, Golden Door’s broad interpretation of section 21167.6 suggests an inclusive understanding of “draft documents,” which would encompass even non-public drafts. In light of Golden Door, agencies should be thoughtful about the way they are drafting or commenting on draft documents and should assume that all administrative drafts might end up in the administrative record.
2) Resist the urge to be over-inclusive.
While it is important to have a complete administrative record, including documents that are only tangentially related to the agency’s action can be counterproductive. Courts generally look unfavorably at efforts to bulk up the record. Additionally, such efforts not only add to the cost of preparing the record in the first instance, but also raise the risk of clouding the court proceedings with record disputes.
3) Prepare a privilege log at the outset of the project process.
Privilege logs are not required under the Public Records Act, however agencies asserting any privilege have the burden of at least establishing preliminary facts necessary to support the exercise of the privilege. For example, emails between a public agency and its attorney could be subject to the attorney-client privilege and therefore excluded from an administrative record. Public agencies asserting the attorney-client privilege have the burden of identifying their attorney and demonstrating the privileged nature of the communication. A detailed log of privileged documents and emails prepared in advance of litigation can streamline these determinations.
Privilege logs also provide a helpful non-judicial avenue for resolving disputes between parties regarding the applicability of a privilege. Upon inspection of the log, parties might be able to agree that some documents are not subject to a privilege.
4) Provide specific evidence to support assertions of the deliberative process privilege.
Public agencies seeking to invoke the deliberative process privilege must provide sufficient evidence and an explanation that does more than just recite the policy language of the deliberative process privilege. Under Golden Door, a claim of privilege must be supported with evidence specific enough to give the requester a meaningful opportunity to contest it, to give the court an opportunity to determine whether an exemption applies, and to show the consequences of disclosing the information. See also Citizens for Open Government v. City of Lodi.
5) Assume that communications with the applicant prior to project approval will not be considered privileged under the common interest doctrine.
In general, the common interest doctrine allows parties who have common legal interests to share privileged attorney-client communications and attorney work product without waiving the privilege. Appellate courts are divided as to whether and when the common interest doctrine protects communications between project applicants and permitting agencies before approval of a project and completion of its environmental review.
Under Citizens for Ceres v. Superior Court, pre-approval communications are generally not privileged under the common interest doctrine because the agency and applicant have diverging interests. The court in that case held that the law presumes the agency’s interest is to neutrally and objectively make an unbiased evaluation of the project’s impacts, while the applicant’s interest is to have the agency produce a favorable environmental review document in compliance with CEQA. Conversely, California Oak Foundation v. County of Tehama recognizes the agency’s and applicant’s common interest in preparing a CEQA-compliant review document.
Golden Door avoids weighing in on the different conclusions reached by the Court of Appeal, Fifth District in Ceres and the Court of Appeal, Third District in California Oak Foundation. Instead, Golden Door held that because the project opponent sued the lead agency and applicant, this litigation strategy created a common interest between the County and the applicant. Communications between the County and applicant involving their joint defenses were protected. In light of Golden Door’s silence on the split of authority between the Ceres and California Oak Foundation courts, agencies should take a conservative approach by assuming the common interest doctrine does not protect pre-approval communications.