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San Diego County takes fight over deleted emails to state Supreme Court

The San Diego County administration building.
After a state appeals court ruled that the San Diego County email policy was improper, a majority of county supervisors voted to seek state Supreme Court review.
(John R. McCutchen / San Diego Union-Tribune/Zuma Pre)

Opponents of Newland Sierra project had sought records before voters rejected the master-planned community

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San Diego County has long defended its policy of destroying most emails within 60 days. Now, after a state appellate judge said the practice violates state law, the Board of Supervisors is taking its case to the California Supreme Court.

The board voted 3-2 to fight a ruling from the 4th District Court of Appeal that found the county wrongly deleted emails related to a controversial housing development called Newland Sierra, which was approved in 2018 but overturned by voters earlier this year.

Supervisors Greg Cox, Jim Desmond and Kristin Gaspar voted to take the case to the state’s highest court, defending the county‘s policy of deleting emails not deemed to be “official records” after two months.

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Supervisors Dianne Jacob and Nathan Fletcher voted against the motion.

Their vote follows a decision published July 30 by Justice Judith McConnell of the 4th District Court of Appeal that said emails related to Newland Sierra should not have been deleted by the county.

“A thorough record is fundamental to meaningful judicial review,” McConnell wrote. “They are ‘official records’ under the county’s email retention policies. Thus, the county should not have destroyed such emails, even under its own policies.”

The Newland Sierra project would have permitted thousands of homes on rural open space north of Escondido. But opponents of the development, notably owners of the Golden Door resort just across Deer Springs Road from the master-planned community, forced the issue onto the March ballot, and the measure was rejected by 58 percent of voters.

Even before the project was approved in 2018, or the referendum qualified for the March 2020 ballot, Golden Door sued the county and others over the Newland Sierra development.

But the majority will of the electorate did not make the litigation moot.

Instead, as the McConnell ruling notes, Newland Sierra officials want to preserve the 22,000-page environmental impact report so they will not have to perform another review — which took years and cost millions of dollars — if or when they propose a new development on the property.

“We could use that EIR, if judicially validated, for the other project approvals,” the ruling quotes a Newland Sierra lawyer.

Supervisors Cox and Desmond both declined to comment on their votes to take the case to the state Supreme Court, citing the ongoing litigation. Supervisors Jacob and Fletcher both issued statements saying they voted according to their values.

Supervisor Gaspar did not respond to a request for comment.

The state Supreme Court typically decides to hear a small fraction of cases seeking its review. It may take months to decide if it will take the county’s case.

County spokesman Michael Workman said the 2018 board approval included an indemnification agreement that protects the county from litigation costs and damages — and it remains in effect.

“Newland is responsible for the legal costs, not the taxpayers,” he said.

Lawyers for Golden Door in 2017 began filing Public Records Act requests for documents related to the Newland Sierra project. Among other things, they wanted technical reports and communications between the developers and county planners considering the proposed amendment to the general plan for the area.

In response, the county turned over a few dozen emails, all written in September and October 2017.

“Golden Door’s attorneys asked the county to explain how the project could have generated only 42 e-mails,” the July ruling said. “County counsel explained the county had a ‘60-day auto-deletion program for emails that do not meet the criteria for an official record’.”

Last year, as the lawsuit was going through the discovery process, the county provided almost 6,000 documents and 170,000 pages of records — many of which the plaintiffs said should have been released as part of the earlier Public Records Act requests.

The plaintiffs challenged the county’s policy of deleting emails but lost that argument in Superior Court. They won their appeal to the 4th District, and the case is now headed to the state Supreme Court.

One of the arguments put forward by county lawyers was that it costs too much to store so many emails.

“The county asserts that it costs $76,000 per month for email storage, and ‘retaining every e-mail and preliminary draft ... would overburden and delay the county in responding to PRA requests’,” McConnell noted.

But the judge ruled that only emails sent or received by the county “with respect to the project” or state environmental laws need to be preserved.

The resort owners are not alone in questioning the county’s email retention policy.

Three dozen advocacy groups and private citizens joined the petition filed by Golden Door lawyers or submitted friend-of-the-court briefs in support of reversing the ruling by Superior Court Judge Gregory W. Pollack that favored the county.

Most of them expressed concern that a growing number of local government agencies like the County of San Diego have adopted document retention policies allowing for the wholesale — and selective — destruction of emails sent or received by public employees.

“If allowed to stand, these policies would undermine the public’s interest in, need for and ultimate right to full government transparency and accountability to review and evaluate government actions,” wrote lawyers for the First Amendment Project, one of the advocacy groups that joined the case.

Meanwhile, 13 consultants and government trade groups joined the litigation in support of San Diego County and Newland Sierra. They said no public agency can reasonably be expected to preserve every email generated by employees.

The California State Association of Counties, for example, filed a brief on behalf of San Diego County arguing that it would be “absurd to claim that a lead agency violated the law” by not archiving every electronic communication.

“Everyone in an office setting knows that much of the conversation that would happen in hallways or over the telephone in the past are now accomplished by email,” lawyers for the association wrote.

Judge McConnell agreed email has supplanted many traditional forms of communication, but she also noted that nothing in the law — or her ruling — requires government agencies to save emails not relevant to the Newland Sierra project or the California Environmental Quality Act.

“The email equivalent to sticky notes, calendaring faxes and social hallway conversations — that is, emails that do not provide insight into the project or the agency’s CEQA compliance … need not be retained,” she ruled.

The appellate ruling included an order that the plaintiffs recover court costs — less than $1,000 in filing fees and other expenses. Once the case concludes, a decision will be made about who will be responsible for millions of dollars in expected attorneys’ fees.

Updates

11:09 a.m. Aug. 29, 2020: The story was updated to reflect Justice Judith McConnell’s title.

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