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County Ordered To Produce 42,582 Emails Spanning Six Years
Dean Getz is a member of the Serrano El Dorado Owners Association (Serrano). The place where he lives was developed and managed by Parker Development Company (Parker). On March 29, 2018, Getz submitted a request to the County of El Dorado under California Public Records Act (CPRA) Getz wanted records regarding the County’s contacts with Serrano and Parker. Getz initially requested all “development plans, proposals, reports and applicable correspondence including electronic (e.g. email) records” between the County and any other party pertaining to the planned development.
In response, the County used software and search terms to locate potential records. A County employee reviewed each document to determine the responsiveness to the request. The employee also worked with county counsel to review the responsive records for records that could be withheld due to attorney-client privilege or work product. The County then produced an index of responsive documents, including emails, on a CD with hyperlinks to the texts of the emails or documents.
After reviewing the CD, Getz believed that the County did not produce all responsive records. On August 1, 2018, Getz submitted another CPRA request seeking all emails between the County and anyone with email domains from Serrano, Parker, and two other businesses – a law firm and a political consulting firm – dating back to January 1, 2013. On August 28, 2018, the County notified Getz that approximately 47,000 emails were potentially responsive to the request, of which 42,582 were newly identified. The County estimated it would take 40 to 50 business days to review and sort responsive records. As a result, the County asked Getz to “further refine” his request to allow for a more focused search and to reduce the County’s burden in reviewing the responsive records. Getz responded that he did not believe he was required to narrow the focus of the request and that the County was required to produce all requested documents.
On March 25, 2019, the County produced an index of the 42,582 emails and asked Getz to narrow his focus to describe identifiable public records relevant to his inquiry. The index identified the sender, recipient, subject, date, and whether the email had an attachment. Unlike the prior index, the emails were not readable; the index contained no hyperlinked text. Getz responded that having reviewed the index, he could not find a way to reduce his request because the information he sought seemed to be prevalent throughout the index. He also reiterated his request that the 42,582 emails be produced without further delay. The County did not respond.
On April 2, 2019, Getz submitted another CPRA request to the County for all records from April 2, 2018, to April 2, 2019, pertaining to the district attorney’s efforts to review a misdemeanor Getz allegedly committed but for which he was never charged. The County acknowledged receipt of the request and noted: “to the extent, there are records responsive to this request with the District Attorney’s Office, they are not provided because they are records in investigatory files and those records are completely exempt from disclosure under California Government Code 6245(f).” Getz replied that since the statute of limitations had run on the charge, the exemption did not apply because there was no prospect of law enforcement. The County did not respond further.
Getz then filed a petition for writ of mandate directing the County to produce the records he requested on both August 28, 2019, and April 2, 2019. The trial court denied Getz’s petition on the grounds that his request for emails was overbroad, and the district attorney had met its burden of demonstrating that the documents related to the misdemeanor investigation were exempt. Getz appealed.
The California Court of Appeal disagreed with the trial court’s finding that the request for emails was “overbroad and unduly burdensome”. Records requests always impose some burden on government agencies, but an agency is obligated to comply so long as the records can be located with reasonable effort. The court concluded that because the County had already located and indexed the 42,582 emails without objection, the County had demonstrated that the records could be located with reasonable effort and the volume of material was not unmanageable.
Further, the court found that the County failed to provide sufficient evidence that it would be required to review all 42,852 emails to determine which of those emails were responsive. Getz’s request was simply for all emails between the County and the several domain names he provided, and the County’s search identified 42,852 emails that met those criteria. There was no evidence that those emails contained anything but County business with those entities, as opposed to primarily personal matters between employees of those entities.
The County also argued that some of the requested documents were drafts that need not be disclosed under Government Code Section 6254(a). The court disagreed. In order for a document to be withheld as a draft, the County had to prove: 1) the record sought is a preliminary draft, note, or memorandum; (2) the record is not retained by the public agency in the ordinary course of business; and (3) the public interest in withholding the draft must clearly outweigh the public interest in disclosure. The court found that the County did not provide evidence those criteria were met.
The court also disagreed with the County’s contention that all of the emails with the law firm domain name had to be reviewed for attorney-client privilege. The court found that the County’s privilege argument: only extended to a discrete subset of the e-mails requested; failed to identify any specific privileged e-mails or documents; and was equivocal regarding whether any privileged e-mails or documents even existed. The court noted that only emails with the law firm or specifically referencing County legal matters would need to be reviewed for attorney-client privilege.
The Court of Appeal agreed that the County did not need to provide records related to Getz’s alleged involvement in filing a false police report. Government Code Section 6254(f) allows public agencies to withhold 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… for correctional, law enforcement, or licensing purposes.” Because Getz was investigated for allegedly filing a false police report, the trial court properly denied Getz’s request for documents related to the district attorney’s review of the investigation.
The Court of Appeal thus directed the County to produce the text of emails and any attachments on the County’s index of 42,852 emails and pay Getz’s costs and reasonable attorneys’ fees.
Getz v. Superior Ct. of El Dorado Cty., 2021 WL 5879194 (Cal. Ct. App. Nov. 17, 2021).
The Court of Appeal acknowledged that digital communications produce an enormous volume of public records, but also noted that computer software makes those records easier to produce. The County’s ability to provide an index of the 42,582 emails indicated that Getz’s request was not “overbroad and unduly burdensome”, because the County had already located and indexed the responsive documents using the criteria in Getz’s request.