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On July 20, 2020, California’s Fourth District Court of Appeal published an opinion that may have far-reaching consequences for public agencies conducting environmental analysis under the California Environmental Quality Act (CEQA). In Golden Door Properties, LLC v. Superior Court of San Diego County, the court held that the lead agency for a CEQA project must retain internal email correspondence for inclusion in the administrative record.
The Golden Door Properties litigation concerns the Newland Sierra Project, a residential and commercial development for which San Diego County is the lead agency. In the July 2020 opinion, the court addressed the County’s record retention policy, which provided that all emails not designated as “official records” were to be deleted by the County’s computer system after 60 days. This policy resulted in the deletion of internal agency communications related to the Newland Sierra Project.
Golden Door Properties learned of the County’s policy through a 2016 Public Records Act request for records concerning the Project. Following repeated Public Records Act requests, Golden Door Properties filed an action asserting the County’s policy resulted in the destruction of records that qualified for inclusion in the administrative record. After the records action was consolidated with CEQA challenges to the Newland Sierra Project in 2019, a discovery referee was appointed by the superior court. The referee found that under Western States Petroleum Association v. Superior Court, the County’s policy did not violate Public Resources Code section 21167.6; rather, the contested emails qualified as “extra-record” evidence, which is generally inadmissible when considering petitions for writ of administrative mandate.
In considering the issue, the Fourth District Court of Appeal determined the emails deleted by the County were not “extra-record.” In making this decision, the court noted that Public Resources Code section 21167.6(e) is mandatory and broadly inclusive; thus, it requires the inclusion of virtually all records that concern a proposed development in the administrative record for a CEQA action. This includes “any” and “all” written materials, staff notes, internal agency communications, and correspondence submitted to, or transferred from, the public agency. The court held that the emails at issue in this case clearly and unambiguously fall within this definition. While the statute does not expressly mandate document retention, the court held that lead agencies must nonetheless retain all responsive records in order to permit meaningful judicial review.
This case has serious implications for California’s public agencies, many of which have adopted similar records retention policies. For more information, please contact Ellen Simmons at firstname.lastname@example.org.
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