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Court of Appeal:
County Must Turn Over 42,852 Emails Sought Under PRA
Majority Rejects Contention That Each Document Must Be Screened for Nondisclosable Content Before
Disclosure Is Made Which, County Argues, Is Unduly Burdensome; Dissenter Says Exemption Applies
By a MetNews Staff Writer
A Public Records Act request seeking a voluminous number of documents was improperly snubbed by a county on the ground that some of the documents might be subject to disclosure and it would be too time consuming to review each one, the Third District Court of Appeal declared yesterday in a 2-1 decision.
Presiding Justice Vance W. Raye, joined by Justice Coleman Blease, concluded that El Dorado Superior Court Judge Michael McLaughlin erred in ruling that the county could withhold 42,852 emails that were responsive to a request on the ground that the request was “overbroad and unduly burdensome,” necessitating a review of each communication to determine if it was exempt from disclosure. Justice Peter A. Krause agreed with McLaughlin.
The emails were sought by Dean Getz, a member of a homeowner’s association. He had concerns about the management of the association and its contacts with a developer.
In response to an initial request under the Public Records Act, El Dorado County provided an index of emails and links to them.
Additional Records Sought
Dissatisfied with what he received, Getz made a broader request—on Aug. 1, 2018—seeking “electronic copies of any/all emails by or between ANYONE (i.e. any department) within the County of El Dorado and anyone at the email domains of ‘serranohoa.org’, ‘@parkerdevco.com’, @hsmlaw.com’ and/or ‘@mcnallytemple.com’ from January 1, 2013 to date in the County’s possession.”
The domains were those of Serrano El Dorado Owner’s Association, of which Getz was a member; Parker Development Company which managed the association; Hefner Law which represented Parker Development; and McNally Temple Associates, Inc., a public relations firm used by Parker Development. The county identified 47,000 responsive emails, 42,852 of which had not already been disclosed.
It provided an index, but without links. Under yesterday’s decision, it must provide access to all the emails, with attachments.
Absence of Evidence
“There was no evidence before the trial court that the County’s e-mail exchanges with e-mail addresses in domains owned by a real estate developer, its legal counsel, and public relations consultants would contain anything but information regarding the County’s business with these entities,” Raye wrote, adding:
“The four e-mail domains specified in Getz’s request are manifestly work- related accounts. The County’s email correspondence with e-mail addresses in these domains would naturally deal with work-related matters, e.g., the developer’s business with the County in which the developer builds and manages developments.”
He noted that the county had provided no evidence that any of the emails was personal in nature.
Raye declared:
“The County must make some showing that exempt or privileged information exists in the records requested, especially, where, as here, that seems unlikely. The County cannot simply declare that it must always review every responsive e-mail to determine if any, or part of any, contain exempt or privileged information. Since the volume of e-mail correspondence in the modern era will always be an order of magnitude greater than notes, memoranda and correspondence by letter formerly sought in a request under the Act, the argument that the County must review every e-mail furnishes a ready-made ‘overly burdensome’ response justifying a public agency’s refusal to respond to a request under the Act for e-mails.”
The county asserted that some emails might be subject to Public Records Act (“PRA”) exemptions or the attorney-client privilege in light of cooperative efforts in legal matters of Hefner Law and the county. Rate responded that “more than vague suggestions and statutory references are needed to invoke a privilege.”
Refining PRA
The presiding justice continued:
“Perhaps the Legislature should consider the ease with which electronic records such as e-mails can be identified and the burden imposed when such records are requested in volume, but existing statutes do not make such burden a basis for refusing disclosure. Absent statutory changes, public agencies can reduce the potential burden by identifying and segregating potentially exempt records when they are created.”
Raye began his opinion by observing:
“California has declared, in terms as clear as the English language permits, that government business is the people’s business whether conducted in proceedings by deliberative bodies…or discussed in records of any form, and must be accessible to the public, though access can be regulated to reduce the administrative burden imposed on government agencies and in rare instances can be denied altogether to prevent the disclosure of records exempt from disclosure. Computers have led to an enormous increase in the volume of information collected and retained by government and made identification and access to such information easier. But the rules providing for public access have not changed.”
Krause Disagrees
Krause pointed Government Code §6255, a part of the PRA, which provides a catchall exemption where “the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure.” He maintained that “when properly balanced, the burden on the County clearly outweighs the public interest underlying this request.”
The jurist argued:
“The majority faults the County for failing to provide sufficient evidence that specific exemptions will apply, but the evidence shows that the exempt and privileged e-mails have not yet been identified and segregated. Thus, the relevant inquiry at this stage is not whether the County can show particular exemptions or privileges necessarily will apply, but how burdensome it will be, on balance, for the County to determine whether all 42,582 e-mails are in fact “public records,” and whether specific exemptions or privileges may be asserted. In short, my colleagues fail to measure the weight of the public interest or to balance it against the burden of review.
“Even assuming for the sake of argument that all of the e-mails at issue relate to County business, a fact which is not at all clear, substantial evidence supports the need for predisclosure review of all the e-mails and their attachments to ensure that any records produced are responsive,4 nonexempt, and nonprivileged public records—a function that our Supreme Court has said may be placed on the scale under section 6255.”
Investigation Records Sought
Getz also sought records relating to a District Attorney’s Office investigation relating to an allegation that he had filed a false police report. Raye said §6254(f) exempts records of “investigations conducted by...any state or local police agency” or “any investigatory or security files compiled by any state or local police agency, or investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes,” and rejected Getz’s view that the sections are inapplicable to closed investigations.
Krause concurred in that portion of Raye’s opinion.
The case is Getz v. Superior Court of El Dorado County, C091337.
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