Posted by: Patricia Salkin | July 21, 2009

Court Holds That Documents Disclosed by County to Developer Remained

Note: The following is from the Bingham McCutchen Land Use Development Alert (July 16, 2009).

Developers and their opponents have argued for years over the scope of disclosure required by CEQA (California Environmental Quality Act) for agency staff materials that have been shared with a developer. A court recently resolved part of the debate by holding that documents shared between county counsel and counsel for the developer remain protected by the attorney-client privilege and work product doctrine, and were properly excluded from the administrative record.

At issue in California Oak Foundation were four documents from the county of Tehama’s outside CEQA counsel to the county counsel’s office. County counsel shared these documents with the developer’s attorney. In its action challenging the EIR, California Oak Foundation argued that these documents must be included in the administrative record. The county contended they were protected from disclosure by the attorney-client privilege and work product doctrine. In response, the foundation noted that CEQA requires that the record include all evidence or correspondence submitted to the agency regarding compliance with CEQA or the project, documents included in the public agency’s files on the project, and all internal agency communications. It argued that these CEQA provisions overrode any privilege claims, and that, in any event, the county waived any privilege when it showed the documents to the developer’s attorney. 

The court rejected the foundation’s arguments. It reasoned that CEQA “is not an abrogation of the attorney-client privilege or work product privilege,” since there was no compelling showing of an unavoidable conflict between CEQA and the Evidence Code provisions that protect attorney-client communications and work product. It held that CEQA did not eliminate the principle that documents may be disclosed to others without waiving privileges when disclosure is reasonably necessary to accomplish the purpose of the legal representation. The court held that the disclosure by the county to the developer was reasonably necessary to help the county “produce an EIR process and product that will withstand a legal challenge for noncompliance.” Accordingly, the documents retained their privileged and protected status.  

California Oak Foundation v. County of Tehama, 174 Cal.App.4th 1217, 94 Cal.Rptr.3d 902 (Ca. App.  3 Dist. 6/11/09,rehearing denied 7/1/09).

 The opinion can be accessed at: http://www.courtinfo.ca.gov/opinions/documents/C057578.PDF


Responses

  1. In Steamboat Springs CO the city attorney, Anthony Lettunich, who has been city attorney for more than 25 years, has a private practice and a private office available for consultation. The last time I checked there were no restrictions on his private practice and no reporting about his clients and possible overlap with parties doing business with the city. In fact, the city bought a golf course the city attorney’s law firm had represented when it was formed and high priced building lots sold around it. The golf course apparently wasn’t breaking even on its own.

    The City Attorney advised the city council members to use private emails instead of the city email system when communicating with him so that the communications would not be subject to the Open Records Act. The City Council also holds informal meetings in a restaurant bar. Previously the city council used to hold informal meetings at the residence of the city council president next door to our former home. These frequent meetings would last for hours and have many cars and official vehicles but the public was excluded. The city employees and city council would just walk by or thru the buildings that were excluded from the property tax rolls for Routt County 701 Princeton Ave Kevin Bennett. The city also raised the prices on open records act requests, removed the development and zoning codes from the city web site, and removed the names and titles and a description of planning services staffing from their website. You used to be able to email to the city planners and code enforcement from your own email so that you had proof of what you emailed but now you can only use the city contact form so you can’t prove what you sent or that it was sent.


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