Second District Court of Appeal Holds Environmental Review under the California Environmental Quality Act (CEQA) is Required for Discretionary Approvals to Increase State University Enrollment Levels.

Save Berkeley’s Neighborhoods v. The Regents of The University of California, Case No. A157551 (June 25, 2020)

 

In 2005, the Regents for the University of California (Regents) certified a program-level environmental impact report (EIR) and approved the corresponding Berkeley campus development plan for the years 2005 through 2020. The development plan projected enrollment at Berkeley would increase by 1,650 students by 2020.  However, starting at least in 2017, the Regents approved enrollment increases for the Berkeley campus such that Berkeley’s enrollment increased by 8,300 students by 2018. In 2018, Save Berkeley’s Neighborhoods (Save Berkeley) filed a petition for writ of mandate challenging Regents’ decision to increase enrollment without further environmental review under CEQA.

Regents responded by filing a demurrer, arguing: (1) Save Berkeley failed to state a cause of action because the decisions to increase enrollment are not a “project” requiring environmental review under CEQA; and (2) the petition was time barred by the statute of limitations. The trial court sustained the demurrer, concluding the petition was barred by the statute of limitations and that the informal decisions to increase student enrollment did not constitute “project changes” under CEQA. Save Berkeley appealed.

On appeal, the Second District Court of Appeal held Save Berkeley did not fail to state a cause of action because petitioners adequately plead that the decisions to increase enrollment were changes to the original project – the campus development plan – and those decisions caused significant environmental effects that were not analyzed in the development plan’s 2005 EIR.

In response, Regents argued that Public Resources Code section 21080.09 effectively exempts the University from analyzing the decisions to increase enrollment under CEQA. Public Resources Code section 21080.09 requires an EIR be prepared for any long-range development plan made for a university or college. Section 21080.09 further defines a “long range development plan” as a “physical development and land use plan.” Regents argued this definition precludes a finding that decisions to increase enrollment are part of the development plan project because the definition does not include any “enrollment plan.”

The Second District disagreed. The Court found section 21080.09 specifically requires an EIR for a development plan to consider enrollment changes and that including changes in enrollment as part of the project is consistent with CEQA’s broad definition of a project. Thus, the Court held the plain language of section 21080.09 did not exempt Regents from subsequent environmental review when making enrollment decisions. The Court recognized that its holding might require Regents to undergo annual environmental review (i.e. every year when it approved an increase in enrollment on campus) but stated Regents could avoid this by choosing to analyze a range of enrollment increases in the EIR for the original development plan.

Finally, the Court also rejected the statute of limitations argument, because “at the demurrer stage, [the Court] cannot resolve the factual issues underlying respondent’s statute of limitations defense.”

In Responding to Public Records Act Requests, Public Agencies May Not Recover Costs to Redact Electronic Records

GDB Case Alert — National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward (May 28, 2020, No. S252445) __ Cal.5th __ [2020 Cal. LEXUS 3441]

On May 28, 2020, the California Supreme Court issued an opinion concerning what costs public agencies may recover in responding to a document request under the California Public Records Act (PRA; Gov. Code, §6250 et seq.). (National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward (NLG v. City of Hayward) (May 28, 2020, No. S252445) __ Cal.5th __ [2020 Cal. LEXUS 3441]; https://www.courts.ca.gov/opinions/documents/S252445.PDF.) The Court held that public agencies may not charge for the costs to redact electronic public records as a condition of gaining access to the records.

As background, the PRA establishes a right of public access to government records. The PRA was enacted to further “access to information concerning the conduct of the people’s business,” which the Legislature characterized as a “fundamental and necessary right of every person in this state.” (Gov. Code, §6250.) The PRA acknowledges that there are costs associated with providing access to government information, and allocates certain costs to the requester, while others must be borne by the agency responding to the requests. As a general rule, a person who requests a copy of a government record under the PRA must pay only the direct costs of duplicating the record, and not other ancillary costs, such as the costs of redacting material that is statutorily exempt from public disclosure. (Gov. Code, §§6253, subd. (b), 6253.9, subd. (a)(2).) But, a special costs provision specific to electronic records says that, in addition to paying for duplication costs, requesters must pay for the costs of producing copies of electronic records if producing the copies “would require data compilation, extraction, or programming.” (Gov. Code, § 6253.9, subd. (b)(2); NLG v. City of Hayward, supra, 2020 Cal. LEXIS 3441, at *3-4.)

NLG v. City of Hayward involved a PRA request concerning digital police body camera footage. In December 2014, demonstrations erupted in Berkeley protesting grand jury decisions not to indict the police officers involved in the deaths of two unarmed African-American men. NLG submitted a PRA request to the Hayward Police Department seeking records relating to the Department’s actions in policing the demonstrations. The Department’s custodian of records determined that certain videos from body-worn cameras might be responsive to the records request. However, the videos contained exempt material, including personal medical information and law enforcement tactical security measures. (Gov. Code, §6254, subds. (c) and (f).) Thus, the custodian of records spent 35.3 hours editing out the visual and audio segments that were exempt, and the City invoiced NLG $2,938.58 for these costs to prepare the videos for production. NLG paid the invoiced amount under protest and received the videos.

NLG filed a petition seeking a refund of the money it had paid to receive the videos, beyond the direct costs of duplicating the videos. In response, Hayward argued that the invoiced costs were justified under the PRA because the City’s staff had performed “data extraction and compilation,” as allowed under PRA section 6253.9(b)(2). The trial court found that the charges were unjustified and granted the petition. However, the Court of Appeal reversed, agreeing with Hayward that section 6253.9(b)(2) entitled Hayward to recover its costs for redacting the videos as an “extraction” of data necessary to produce the record. The California Supreme Court granted review.

As mentioned, PRA section 6253.9(b)(2) permits charging requesters for the cost of “extract[ing]” data to produce or construct electronic records. The question on review was what the Legislature meant by the term “extraction,” which the PRA does not define. In the context of PRA section 6253.9(b)(2), the Court held that “extraction” does not cover the costs of redacting electronic records. The Court relied on a technical definition of “extraction,” to refer to a process of retrieving required or necessary data for a particular use, rather than omitting or deleting unwanted data. Thus, the Court interpreted section 6253.9(b)(2) to permit the shifting of costs uniquely associated with the production of electronic record copies — including, as relevant here, the need to retrieve responsive data in order to produce a record that can be released to the public — but not the costs of redacting exempt information from the record. This interpretation is consistent with the legislative history of section 6253.9(b)(2), which indicates that the Legislature was primarily concerned with the costs of retrieving requested data that was not easily accessible in order to produce it, as opposed to time spent redacting exempt information.

In short, “extraction” costs recoverable under the PRA include costs to retrieve responsive data from an unproducible government database, but do not cover every process that might be colloquially described as “taking information out,” such as redaction costs. The Court noted that this holding is confirmed by California’s constitutional directive to “broadly construe” a statute “if it furthers the people’s right to access.” (Cal. Const., art. I, § 3, subd. (b)(2).) This Constitution provision favors an interpretation that avoids erecting substantial financial barriers to access, and redaction costs are often nontrivial, as shown in this case, where NLG was charged about $3,000 for responsive video.

To the extent public agencies are concerned about being made to respond to overly burdensome requests without adequate funding, the Court notes that the PRA provides various solutions to ease those burdens, including:

  • Agencies are required to disclose nonexempt portions of records only if they are “reasonably segregable” from portions exempted by law. (Gov. Code, §6253(a).)
  • Agencies are allowed to withhold records if “the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record,” which may encompass requests that place undue burdens on an agency. (Gov. Code, §6255(a).)
  • And, agencies are allowed to suggest ways requesters can reduce practical barriers to agency compliance with any request. (Gov. Code, §6253.1(a)(3).)

The California Supreme Court noted that no similar provisions protect requesters from costs that unduly burden their right of access to government information; thus, this consideration favors a rule that avoids shifting routine redaction costs as a condition of gaining the access the PRA promises.

Finally, although the facts of NLG v. City of Hayward involved requests for body camera footage, which present unique concerns for government agencies with limited resources, the Court noted that section 6253.9(b)(2) of the PRA is not a provision directed to body camera footage alone; it covers every type of electronic record, from garden-variety e-mails to large government databases. As such, the Court’s ruling applies to requests for all types of electronic government records — the PRA does not provide a basis for charging requesters for the costs of redacting such records.

CEQA’s Balancing of Project Approval Finality and Public Comment

Willow Glen Trestle Conservancy v. City of San Jose:

A lead agency’s post-approval actions to implement a project do not necessarily constitute an approval triggering CEQA review, held the Sixth District Court of Appeal in Willow Glen Trestle Conservancy v. City of San Jose, issued May 18, 2020.

In 2014, the City of San Jose (City) adopted a mitigated negative declaration (MND) for and approved the demolition of the Willow Glen Railroad Trestle (Project).  The City’s Project would replace the Trestle with a new steel truss pedestrian bridge to serve the City’s trail system.  The City’s finding in the MND that the Trestle was not an historical resource led to litigation, in which the City ultimately prevailed.  In 2014, the City was also issued a Streambed Alteration Agreement (SAA) by the California Department of Fish & Wildlife (CDFW); however, the SAA expired in 2017.  Therefore, in 2018, the City again notified CDFW of streambed alteration in connection with the Project and was issued a second SAA by CDFW.  The Willow Glen Trestle Conservancy and Friends of the Willow Glen Trestle (Conservancy) sued the City alleging a CEQA violation on the basis that the City’s actions in connection with the SAA – i.e., the City’s seeking and accepting of the SAA – required supplemental environmental review. 

The Court rejected the Conservancy’s argument that the City’s entering into the SAA was the final discretionary approval for the Project, requiring supplemental environmental review.  The Court analyzed CEQA Guidelines section 15162(c), which provides:

“Once a project has been approved, the lead agency’s role in project approval is completed, unless further discretionary approval on that project is required.  Information appearing after an approval does not require reopening of that approval.  If after the project is approved, any of the conditions described in subdivision (a) [(which mirror the circumstances set forth in Public Resources Code section 21166)] occurs, a subsequent EIR or negative declaration shall only be prepared by the public agency which grants the next discretionary approval for the project, if any.  In this situation no other responsible agency shall grant an approval for the project until the subsequent EIR has been certified or subsequent negative declaration adopted.”  (italics in opinion)

To arrive at its holding, the Court balanced CEQA’s purposes and interests in finality and efficiency and the policy of encouraging public comment.  The interests in finality prevailed in this instance.  “If every action had to be considered an ‘approval,’ each and every step that the City took toward implementing an approved project would necessarily constitute another ‘approval on’ the project, thereby endlessly reopening the City’s long-final consideration of the project’s environmental impacts.”  The Court relatedly did not agree with the Conservancy’s argument that the City’s choice not to abandon the Project constituted project approval justifying further CEQA review.  Instead, the City’s 2018 submittal of the streambed alteration notification to CDFW and acceptance of the SAA were actions toward implementation, consistent with the Project’s implementation process described in the MND adopted by the City in 2014.  The only new approval was CDFW’s, but that approval was not challenged by the Conservancy.

This decision highlights the importance of a lead agency’s evaluation of each post-approval action related to an approved project.  If the action is seeking and accepting an approval by another agency, such action likely is not the type of a discretionary action requiring supplemental environmental review under CEQA, but instead is a step toward project implementation that falls within CEQA Guidelines section 15162(c) and Willow Glen Trestle Conservancy v. City of San Jose.