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.