In a ruling that should send shivers up the spine of any public agency in California needing to comply with the California Environmental Quality Act (“CEQA”), the Fourth District Court of Appeal on July 30 held that any email correspondence related to a project and its compliance with CEQA must be retained as part of the agency’s record of administrative proceedings, even if the agency’s document retention policy states otherwise. This marks the first ruling (or statute or regulation) to impose such a duty.
Golden Door Properties, LLC v. Superior Court of San Diego, Lead Case No. D076605, stems from numerous CEQA writ petitions related to San Diego County’s (“County”) approval of the Newland Sierra Project. The specific issue in the opinion is the impact of the County’s document retention policy, which directed City staff to automatically delete emails not marked or saved as “official records” after 60 days. In some tension with that retention policy, Public Resources Code sub-sections 21167.6(e)(7) and (e)(10) require agencies to include external and non-privileged internal emails and other written communications related to a CEQA project in the administrative record of proceedings when litigation is filed challenging the project under CEQA. In this instance, the County argued that some emails related to the project and its compliance with CEQA had been deleted pursuant to the County’s document retention policy and thus could not be produced in response to discovery or for the administrative record. A battle over discovery of the records ensued. Ultimately, a trial court discovery referee ruled that there was no duty to retain emails under CEQA, and therefore denied efforts by petitioners to compel the agency to produce the records.
The Appeals Court disagreed. The Court determined that Section 21167.6(e) is both mandatory and inclusive—the administrative record must include the enumerated categories of records, 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 e-mails the lead agency has already destroyed.” The Court considered it “pointless” for CEQA to set forth categories of documents that must be included in the administrative record, only to interpret the statute such that it does not require retention of such documents during the administrative proceedings.
The Court also reasoned that an interpretation requiring retention of records fitting the descriptions in Section 21167.6(e) is consistent with CEQA’s purposes of governmental transparency and informed decision-making. The Court determined that this interpretation also ensures meaningful judicial review of CEQA decisions. On these bases, the Court held that “a lead agency may not destroy, but rather must retain writings section 21167.6 mandates for inclusion in the record of proceedings.”
Of important note, the Court did not grant the remedy sought by petitioners—that the court enter judgment in their favor and force the agency to set aside all project approvals. Instead, the Court simply ordered the parties to meet and confer and for the lower court to reconsider its discovery rulings in light of the incomplete record. Distinguishing an earlier case that invalidated certain project approvals due to a “grossly deficient” record, the Court made clear that, because the record had yet to be completed, such remedy was “premature.” In this case on remand, as well as in other cases to follow, it will remain petitioners’ burden to show that any gap in the record is prejudicial. (See Pub. Resources Code, § 21005(b); Neighbors for Smart Rail v. Exposition Metro Line Const. Authority (2013) 57 Cal.4th 439, 463-465 (no prejudice where correction of error would not have produced any “substantially different information”); San Francisco Baykeeper, Inc. v. State Lands Com. (2015) 242 Cal.App.4th 202, 228-232 (petitioner failed to show how CEQA procedural violations resulted in “omission of pertinent information from the environmental review process”).) This evidentiary burden is ever the more challenging when the records that do exist demonstrate that the EIR and CEQA findings of the agency were supported by the evidence.
Before this ruling, neither CEQA nor any court had ever imposed such an explicit duty on public agencies to retain emails. Indeed, born out of necessity to manage the ever burgeoning amounts of data preserved on servers and other databases, many agencies have had document retention policies that explicitly encourage the deletion of older emails. This ruling will no doubt force public agencies to rethink email retention policies and document storage techniques related to CEQA projects.
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