Newsletter

Classroom Training Update

The California JPIA is excited to announce that we are resuming the scheduling of in-person classroom training courses effective immediately. This includes many of our Cal/OSHA regulatory compliance trainings that were previously made available as virtual Zoom-based trainings during 2021.

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Many more in-person trainings are also available. If you would like to schedule any of our in-person or virtual trainings, which are live trainings with an instructor held online over Zoom, please contact our training staff at training@cjpia.org.

Is Requesting 47,000 Pages Unduly Burdensome? Not According to this Court

Originally published on January 11, 2022. Reprinted with permission from Burke, Williams & Sorensen, LLP.

Generally, cities may object to Public Records Act requests if they are overbroad and thus “unduly burdensome.” (See Cal. First Amend. Coalition v. Superior Court (1998) 67 Cal.App.4th 159, 166.) However, a recent case (Getz v. County of El Dorado – Case No. C091337) cautions against using this type of “unduly burdensome” objection to justify denial or a refusal to disclose records and is a good reminder to carefully consider how an agency responds to a request for a voluminous amount of documents.

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The case involved a request seeking approximately 47,000 of pages of responsive documents. The requester wanted records between the El Dorado County (“County”) and a developer that built and managed the homes that was part of his homeowners’ association. The requester initially requested “all development plans, proposals, reports and applicable correspondence” which included emails between the County and the developer. Although the County produced a number of records, the requester believed there were more documents that were not produced. As a result, the requester made a further request for records that included all emails sent from January 2013 and August 1, 2018, between any email address from four domain names associated with the developer and any County employee, regardless of their content.

The County made an “unduly burdensome” objection and worked with the requester to prepare an index of electronic records from which the requester could select which documents he sought through the request. Instead of selecting specific records to be produced from that index after the initial review, the requester simply asked for all records identified in the index to be produced, claiming that there was no undue burden because the County had already located (but had not yet reviewed) the potentially responsive records. The County did not respond to this further request, presumably because the requester did not further narrow down the response as requested by the County.

The requester sued. The trial court ruled in favor of the County finding that the request was overly broad and unduly burdensome and that the County had indeed fulfilled its obligations under the Public Records Act.

On appeal, the County made several arguments, which were all rejected by the appellate court.

The first County argument, that the request was not focused or specific, failed because the request “did not require interpretation to determine responsiveness,” and noting that the request identified emails from specific email addresses.

The second County argument, that the request was “overbroad and unduly burdensome,” failed for several reasons. The County argued that it would take an extraordinary amount of time to review the records for potentially applicable exemptions under the CPRA, including emails exempt because of a common interest between the County and the developer in separate litigation. However, the Court noted that the County already located and indexed approximately 47,000 emails based upon the requester’s identification of the dates and domain names associated with the records. Further, the County did not provide sufficient evidence that reviewing the 47,000 emails for potential draft or evidentiary privilege exemptions was unduly burdensome and the Court found that the County did not sufficiently support why it needed to review the emails to determine if exemptions applied. Although the County had asserted the exemption for draft documents under Government Code 6254(a), the Court found that the County did not submit sufficient evidence that draft emails were actually retained or why the public interest requires such draft emails be withheld, in accordance with Government Code section 6254(a). The County also asserted the exemption for privileges under Government Code 6254(k). The Court also rejected the application of this exemption finding that the County failed to support why the County needed to review the emails for the attorney-client privilege, since all four types of email domain names were to third parties (thus waiving any attorney-client privilege). The County also did not support why it needed to review the emails for the potentially applicable common-interest privilege, because only one of the four types of email domain names may be subject to that exemption and the County could have easily segregated those emails for review. As a result, the public interest in avoiding this type of burden to the County did not supersede the public interest in potential improper cooperation between the County and the developer.

Lastly, the third County argument, that the request sought items that were not public records based upon the domain names of non-county entities, failed because the County was the recipient of such emails and as such the Court determined that the emails likely involved public business.

Key Takeaways:

1. It continues to be difficult to use “undue burden” to justify denial or a refusal to disclose records and courts will scrutinize refusals to disclose records based upon a claim of “undue burden” and weigh it carefully against the public interest in transparency.
2. Courts will require substantial evidence of what the undue burden is and may not accept the time and expense to review potentially responsive records, alone, to justify non-disclosure. In other words, 47,000 potentially responsive emails might not be enough, especially when such potentially responsive emails may be segregated and reviewed for different exemptions.
3. Courts will scrutinize public agency efforts to narrow down a request to determine if such efforts indirectly impose additional criterion to the request.
4. Creating an index of electronic documents may undercut an argument that locating such records are unduly burdensome.
5. Public agencies may want to consider ways in which the agency maintains its records to determine if there are methods that could be utilized to simplify the review of records in response to a public record request. The Court of Appeals recommended segregating exempt records from non-exempt records (e.g., all attorney-client privileged communication is kept in a separate folder), which may help to streamline the review and production of documents responsive to public record requests.

California JPIA Renews Civic Partnerships

Exercising its core value of teamwork, the California JPIA remains committed to upholding relationships with its members and similarly minded organizations that support municipal agencies in California. The Authority leverages these connections to forge partnerships, address priority issues, and discuss risk management best practices with Authority members, prospective members, and business partners that share the Authority’s passion for local government.

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“The California JPIA is composed of not only informed risk management professionals, but also local government advocates with an authentic interest in collaborating with public agencies,” said Chief Executive Officer Jon Shull. “The Authority’s commitment to supporting local government throughout California sets us apart from other risk management resources.”

Sponsorships also provide an opportunity for the California JPIA to support the professional development of, and learn alongside, member agency staff.

Organizations for which the Authority has renewed its sponsorship this year include the California Contract Cities Association, which advances the benefits of the contracting model and strengthens local control and governance, and the League of California Cities, which collaborates with city officials to enhance knowledge and combine resources to influence policy decisions, as well as the Municipal Management Association of Southern California and the Municipal Management Association of Northern California, both of which support professional development for local government leaders.

A new partner for the 2021-22 fiscal year is the University of Southern California Sol Price School of Public Policy’s Executive Education Forum for Local Elected Leaders (EXED Forum). As a sponsor of the EXED Forum, the Authority has gained access to a network of program participants, faculty, and other policy experts and thought leaders, as well as timely and relevant educational opportunities and outreach programming. The Authority also will educate local elected leaders through articles in the Leaders Forum newsletter.

“The California JPIA is a critical organization for the local elected community that we serve here at USC Price,” said Rolling Hills Estates Mayor Frank V. Zerunyan, J.D. LL.D., professor of the practice of governance and director of executive education. “We are honored to count the Authority among our sponsors and look forward to our collaboration.”

“The California JPIA is proud to provide learning opportunities for municipal managers and elected officials at all levels,” said Shull. “By supporting advocacy and professional organizations, the Authority is investing in the education and enrichment of decision-makers and helping develop well-informed leaders who support a healthy risk management culture in their organization.”

California JPIA Food Drive Supports Local Youth

Helping others during the holiday season can provide hope for both those in need and those who share their time and treasure. In December 2021, the California JPIA staff again invoked a seasonal spirit of giving with a food drive for the Orangewood Foundation, an organization supporting youth in Orange County.

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“Service and civic responsibility are a key part of the Authority staff’s culture,” said Management Analyst Courtney Morrison, who led the winter service project along with Administrative Assistant Lyndsie Buskirk and Maintenance Worker Chris Yanonis. “Supporting community organizations such as the Orangewood Foundation is a tradition that reinforces our team’s collaborative relationships.”

The Orangewood Foundation annually helps almost 2,000 foster and community youth prepare for independent adulthood by providing groceries and hot meals, transitional housing, life skills workshops, and employment leads.

Although historically the California JPIA’s staff service projects have involved in-person interaction to communicate news and coordinate logistics, this year, most outreach and organization took place online in deference to COVID-19 safety protocols.

Morrison and Buskirk rallied their colleagues to collect donations that would stock the Orangewood Foundation’s pantry shelves. Executive Committee members and other guests also contributed to the group effort while on campus for the December Executive Committee meeting.

At the culmination of the project, Morrison and Buskirk delivered personal care items and non-perishable food such as canned goods, peanut butter, cereal, and instant soup to the Orangewood Foundation. The California JPIA’s donation will be distributed throughout the year at the Foundation’s on-site resource center and Samueli Academy charter high school.

“I am proud that the Authority’s staff supported an organization that helps prepare community youth to be self-sufficient and to achieve their greatest potential,” said Chief Executive Officer Jon Shull.

Visit the Orangewood Foundation website to learn more about the services they provide.