New Interpretation of Broad and Unduly Burdensome
Takeaways From Unprecedented Public Records Ruling in Getz v. County of El Dorado
The Third District Court of Appeal recently ruled in favor of a requester who was seeking public records from the County of El Dorado, California. The records involved a homeowner’s association, local real estate developer, law firm and the County. Municipalities should take note of the court’s strong emphasis on public interest in the ruling, and also the noted new interpretation of “broad and unduly burdensome.”
The requester specifically sought all records between the County and four email domains over a five-year period. Using these parameters, the County’s search resulted in 42,582 potentially responsive records.
The County asked the requester to provide more specific search terms “to reduce the County’s burden in reviewing the responsive records prior to production.” The requester refused. In response, the County provided an index of the records and asked the requester to identify which specific records were relevant. The requester refused and again asked for all responsive records to be produced. When the County failed to provide the requested records, the requester filed a writ seeking the production of the 42,582 records. The County made several arguments in support of its position that the requester needed to narrow the request—all of which the court rejected.
First, the County argued the request was overbroad and unduly burdensome, and that the requester had failed to present a “specific and focused request,” but the court found that the County had already located and identified the records, as evidenced by the index. “Public records must be described clearly enough to permit the agency to determine whether writings of the type described in the request are under its control.” (California First Amendment Coalition v. Superior Court (1998) 67 Cal.App.4th 159, 165.) In essence, recovering emails that fit the criteria of the request was not unduly burdensome, even if the search resulted in more than 40,000 records.
Second, the County argued that a search based on such broad parameters would garner records that did not substantively relate to the conduct of the public’s business. The court found this argument speculative, especially since all of the domains were work-related accounts. The court further reasoned that correspondence between these types of businesses and the County would “naturally deal with work-related matters, e.g., the developer’s business with the County in which the developer builds and manages developments.”
Third, the County and the lower court focused on the burden of reviewing the collected records for various exemptions and privileges. This was of particular concern for the County’s because the law firm that was the subject of the request was also a firm that had worked closely with the County on a matter of common interest—thereby spiking concerns that there may be attorney-client communications or work product within the collected records. Further, the County even estimated that the review could take 40-50 business days based on the “cumbersome and lengthy” process to “sort and review the records.” The court seemed to summarily reject these arguments, finding that the County had not presented enough evidence to show that a review of the 42,852 emails was necessary to determine if the privileges and exemptions applied.
Finally, the dissenting opinion asserted that the relevant inquiry was not whether the County could show the request called for exempt or privileged material, but how burdensome it would have been for the County to make that determination. The court disagreed, stating that the County “cannot simply declare that it must always review every responsive email to determine if any, or part of any, contain exempt or privileged information. Since the volume of email correspondence in the modern era will always be an order of magnitude greater than [those records] formerly sought in a request under the Act, the argument that the County must review every email furnishes a ready-made ‘overly burdensome” response justifying a public agency’s refusal to respond to a request under the Act for emails.” The court then suggested that the Legislature might fix this issue by considering the burden imposed when email records are requested in volume because the existing statutes “do not make such a burden a basis for refusing disclosure.”
Ruling Based on Public Interest
At the conclusion of its opinion, the court gave great weight to the importance of public interest in the requester’s aim: to uncover improper cooperation between the County and a local, prominent real estate developer. According to the court, “Land use decisions by county government are of great, not hypothetical, interest to the relevant public, county residents.”
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