Scope of Materials, Including E-mails, in Administrative Records for Ceqa Cases

• Publication year: 2014
• Author: By Holly O. Whatley*

Scope of Materials, Including E-mails, in Administrative Records for CEQA Cases

By Holly O. Whatley*

Given the detailed statutory provisions regarding the record set forth in the California Environmental Quality Act ("CEQA"), Pub. Res. Code, §§ 21000 et seq., and the countless published opinions interpreting them, one would expect that the question of what material should be included in the record on a CEQA challenge would be long settled. Alas, such is not the case. The diversity of projects subject to CEQA and the various relationships that an agency may have with a project applicant in both the pre- and post-decisional stages ensure that it is more common than not that a question will surface regarding the scope of the administrative record for which no case is directly on point.

Against this backdrop, this article first reviews the basic principles governing the scope of administrative records; next, it provides a basis to determine whether to include historical material previously considered by the agency; third, it highlights guidance the courts have provided on specific types of material to include; fourth, it examines the impact of Citizens for Ceres v. Superior Court, 217 Cal. App. 4th 889 (2013), on inclusion in the record of communications between the agency's and applicant's respective attorneys; and, finally, it explores the analysis applicable to e-mails.

WHY WE PREPARE ADMINISTRATIVE RECORDS

To better understand what materials should be included in an administrative record, we first need to understand why we prepare such records in the first place. And though, to many public agency lawyers, this purpose is well understood, it is nevertheless helpful to review it briefly here.

Often, when a writ petition is filed to challenge an agency's or other decision maker's action, the record generated during the underlying proceeding is the sole material the superior court will review to decide the merits of the petition.¹ Though the trial court's standard of review of the agency's action will vary depending on the circumstances and the type of writ sought, a complete record generally benefits the agency rather than the petitioner.

For example, in an administrative writ proceeding not involving a fundamental right, the trial court typically applies the substantial evidence standard. Substantial evidence exists if the administrative record provides any reasonable factual basis for the findings.² The standard is not whether evidence in the record exists that might have supported a different decision.³ Examples of substantial evidence include staff reports, opinions and legislator's comments.⁴ Even a neighbor's statements, if based on relevant personal observations or that involve nontechnical issues, can constitute substantial evidence.⁵

Thus, it is critical that the record be complete and include all the material before the legislative body (or other decision maker) whose action or decision is challenged.⁶ Public comments that may have seemed irrelevant during a hearing could prove invaluable later when the trial court scrutinizes the record for any reasonable factual basis to support the underlying decision. Even in proceedings where evidence beyond the administrative record, or extra-record evidence, is admissible or where other standards of review apply, it remains important to accurately compile and lodge all evidence that was presented to the legislative body or decision maker.

WHAT GOES IN THE RECORD

The type of writ sought and the nature of the challenged action will inform what types of material to include in the record and the applicable deadline to lodge the material.

A. Administrative Mandate (Cal. Civ. Proc. Code, § 1094.5)

Administrative mandate cases typically present the "easiest" record to prepare in that the material is usually well-defined by the proceedings before the administrative body or local agency. In such proceedings, the record includes "the transcript of the proceedings, all pleadings, all notices and orders, any proposed decision by a hearing officer, the final decision, all admitted exhibits, all rejected exhibits in the possession of the local agency or its commission, board, officer, or agent, all written evidence, and any other papers in the case."⁷

If the petitioner requests the agency to prepare the record, the agency has 190 days from that request to do so.⁸ Extra-record evidence is admissible only when the court determines that relevant evidence exists that "in the exercise of reasonable diligence, could not have been produced or that was improperly excluded at the hearing. . . ."⁹

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B. Traditional Mandate (Cal. Civ. Proc. Code, § 1085)

No general statutory rule exists regarding preparation of the administrative record for traditional mandate actions.¹⁰ Indeed, in certain ordinary writ cases, there is no traditional administrative record, such as a challenge to ministerial or informal administrative actions. For example, in a suit to compel a county auditor-controller to comply with his or her statutory duty under the Revenue and Taxation Code, no traditional administrative record is implicated. Likewise, in an ordinary writ to compel the Department of Finance to comply with redevelopment agency dissolution laws, no formal administrative record exists. In those cases, evidence at trial may be introduced in a variety of ways. First, of course, is to offer documents and live witness testimony at trial as one would in a non-writ proceeding. Other options include agreeing on a set of stipulated facts and documents in advance of trial, proceeding solely via declarations and documents submitted by each side at the time they file their respective briefs, or some combination thereof. Often, the trial court's preference, the nature of the evidence, and opposing counsel's willingness to cooperate will dictate whether these latter options are viable and, if so, which one is best suited to the case.

By contrast, in ordinary mandate actions to challenge quasi-legislative decisions (e.g., a Local Agency Formation Commission (LAFCo) decision to approve or deny an annexation application), the trial court is confined to the administrative record developed during the quasi-legislative process.¹¹ Extra-record evidence is generally excluded.¹²

In dealing with the administrative record in an ordinary writ case, assuming one exists, and in counties that have judges who specialize in writ proceedings (such as Los Angeles County), the standard practice of those judges will control. For example, it is common for a judge to use the initial status conference to set a deadline to lodge the record with a briefing schedule to follow. In the absence of such standard practice, attorneys should be more proactive with opposing counsel and the judge to suggest deadlines.

Also, as noted above, in certain traditional mandate actions, evidence beyond the material before the agency may be relevant and indeed necessary. If the parties do not dispute those facts, they may agree to a set of stipulated facts that can be filed with the court in addition to what is considered the more traditional administrative record. Filing stipulated facts does not mean that either party concedes such facts are relevant or the legal effect of such facts. Unless the parties explicitly agree otherwise, arguments as to relevancy and the legal implications of the undisputed facts may still be raised in the briefs on the merits and at trial. Each party may also submit evidence on matters that are disputed, or otherwise not addressed in a stipulation, via live testimony or declarations. The court must resolve any disputed facts at trial.

C. CEQA (Pub. Res. Code, §§ 21000 et seq.)

CEQA challenges can be either administrative or traditional mandate depending on the nature of the CEQA claim. In either instance, CEQA itself provides specific direction as to when the record must be prepared and certified, and what to include in the record.¹³ The categories of documents tend to be broader than those...