Preparation of the administrative record for CEQA litigation is governed by Public Resources Code section 21167.6, subdivision (e). In Consolidated Irrigation District v. The Superior Court of Fresno County, (2012) ___ Cal.App.4th_____, the court provided important guidance regarding the proper contents of the record and sets some limitations on an agency’s responsibility to respond to Public Records Act requests.
The court first considered whether the files of subconsultants retained to prepare an EIR for a lead agency are (1) “public records” that the lead agency must provide in response to a Public Records Act request and/or (2) part of the administrative record for purposes of CEQA litigation. In both instances, the court looked to the contract between the lead agency and the primary EIR consultant and determined that the City’s “control” over the consultant was contractually limited and did not extend to the services performed by subconsultants. Thus, for purposes of the Public Record Act, the subconsultant’s files were not “in the possession of the agency” and therefore did not need to be included in the City’s response to petitioner’s Public Records Act request. For purposes of CEQA, the contract established that the subconsultant’s files were not owned, controlled or in the possession of the City. The court held such files were not considered part of the record under Public Resources Code section 21167.6, subdivision (e)(10) which requires inclusion of documents “included in the …public agency’s files on the project….”
Importantly, however, the court did not establish a bright line rule that subconsultant files never qualify for inclusion in the record; if a subconsultant’s documents were made available consistent with CEQA’s requirements, such documents would properly be in the record (e.g., documents cited or referenced in the EIR and made available for public review). In this case, where the subconsultant’s documents were not made available to the City, the court found that it was improper to compel production of such documents for inclusion in the record.
The court next considered whether the City was required to include transcripts of hearings and/or audio files of public hearings in the record. Although transcripts are clearly “written” materials and should generally be included in the record, in this case the City had not prepared written transcripts of several hearings and therefore could not produce such documents. The court held that Public Resources Code section 21167.6, subdivision (e)(4)’s requirement that the administrative record include “[a]ny transcript or minutes” does not compel a lead agency to prepare transcripts that do not otherwise exist. However, the court held that audio recordings of the hearings constitute “other written materials” under subdivision (e)(4) and therefore must be included in the administrative record if transcripts are not available. The court explained that this broad interpretation of the words “written materials” best promotes CEQA’s purposes of accountability and informed self-government.
Finally, the court considered whether certain documents cited within a comment letter constitute “written comments received” by the agency and/or “written evidence submitted” to the agency and thus warrant inclusion in the record under section 21167.6, subdivisions (e)(6) and (e)(7). As to the first issue, the court concluded that the term “comment” does not include documents cited to support the assertions made in the letter. While these documents are considered evidence supporting the contentions in the letter, they “cannot be bootstrapped into the record of proceedings using the language in section 21167.6, subdivision (e)(6) that covers ‘written comments received.’”
As to the next issue, the court determined that “written evidence” has been “submitted to” a lead agency for purposes of section 21167.6, subdivision (e)(7) when the commenter has made the document readily available for use or study by lead agency personnel. The court applied this test to four categories of “evidence”:
(1) documents named in a comment letter and previously delivered to the City in connection with another project were made “readily available” for City personnel and therefore were part of the record under subdivision (e)(7);
(2) documents named in the comment letter along with a reference to a general Web site through which the document could be located were too general in nature and would subject lead agency personnel to potentially time-consuming efforts to locate the specific Web page where the document is located; therefore, citations to general Web pages and home pages are not considered “readily available” to the City and are not part of the record under subdivision (e)(7);
(3) documents named in a comment letter along with a citation to the specific Web page or URL containing the document were made “readily available to the City personnel” and therefore are part of the record under subdivision (e)(7);
(4) documents named in comment letters without a citation to a Web site or Web page are too difficult to identify or obtain and therefore have not been “submitted to” the lead agency for purposes of subdivision (e)(7) and need not be included in the record.
This case confirms that, with limited exception, the scope of the administrative record in a CEQA case is very broad and agencies should be careful to include: (1) the materials in the EIR consultant’s project files, and subconsultant’s files to the extent the agency owns or exercises control over those files, (2) audio tapes of public hearings where no transcripts are available, and (3) all documents received by or submitted to the agency, including documents “submitted” as URL citations in comment letters.
Written By: Tina Thomas and Ashle Crocker
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The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.
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