CEQA Administrative Records: Challenges and Considerations When Asserting Claims of Privilege

November 15, 2024

The administrative record supplies the evidentiary foundation for legal disputes over government agency decisions. Generally, agencies must base their decisions on evidence, and courts use the administrative record to review whether agencies have adequately supported their decisions.

In California Environmental Quality Act (CEQA) cases, Public Resources Code section 21167.6(e) strictly governs the contents of the administrative record. The statute identifies 11 categories of items that agencies must include in a CEQA record. These include, for example, project application materials, staff reports, public comments, notices, documentation of the final agency decision, the environmental analysis required by CEQA, and “other written materials relevant to the… agency’s compliance” with CEQA.

Prior to 2023, section 21167.6 also required the inclusion of “all internal agency communications, including staff notes and memoranda related to the project or to compliance with [CEQA].” The statute was silent, however, on whether agencies needed to disclose privileged material or documents that were otherwise exempt from disclosure under the California Public Records Act (PRA). In 2023, the Legislature cleared up this confusion and amended section 21167.6 to expressly exclude material “subject to privileges contained in the Evidence Code, or exemptions contained in the California Public Records Act.” Despite this change, however, agencies still must carefully consider whether and when to assert claims of privilege.

The Attorney-Client Privilege and Deliberative Process Exemption

The two privileges or exemptions that most frequently arise during preparation of the administrative record are the attorney-client privilege and the deliberative process privilege or exemption. The attorney-client privilege is the easier of the two to evaluate. Clients have an absolute privilege to prevent disclosure of confidential communications between themselves and their attorneys. The attorney-client privilege bars discovery of privileged communication irrespective of whether the communication also includes unprivileged material. It also bars disclosure of staff communications discussing legal advice, even when an attorney is not present. The California Supreme Court has noted that “[a]lthough exercise of the privilege may occasionally result in the suppression of relevant evidence, the Legislature of this state has determined that these concerns are outweighed by the importance of preserving confidentiality in the attorney-client relationship.” Costco Wholesale Corp v. Superior Court (2009) 47 Cal.4th 725, 732.

In contrast, the deliberative process privilege, which courts have recognized under the “catch-all” or “public interest” exemption to the Public Records Act, requires a more nuanced approach. Under the deliberative process privilege, senior officials enjoy a qualified, limited privilege to prevent disclosure of their mental processes as well as the substance of conversations, discussions, debates, deliberations and like materials reflecting advice opinions, and recommendations by which government policy is processed and formulated. The privilege also protects certain records generated by agency staff participating in policy making.

To withhold a record under the deliberative process privilege, the government agency bears the burden of establishing, through competent evidence, that (1) there is a public interest in nondisclosure of the record, and (2) after balancing the public interest in disclosure against nondisclosure, the public interest clearly favors nondisclosure. “The key question in every case is whether the disclosure of materials would expose an agency’s decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.” Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1342.

Defending Challenges to an Agency’s Privilege Determinations

The Public Records Act favors disclosure. Accordingly, agency attorneys must carefully weigh whether records warrant non-disclosure under the deliberative process privilege. Agencies must also consider that the cost and burden of litigating a dispute over the deliberative process privilege can be quite high.

Challenges to an agency’s decision to withhold deliberative materials from the record can arise in informal disputes during record preparation, requests under the PRA or Civil Discovery Act, or motions to augment the record. A court’s decision to reject or uphold an agency’s determination turns on the public interest balancing test. Thus, if an agency’s non-disclosure is challenged in court, the agency must marshal concrete, specific evidence establishing, for each document or redaction, that the public interest clearly favors non-disclosure.

A declaration from a senior staff person can provide the evidence necessary to support the agency’s privilege determinations. This person should be familiar with the agency’s decision-making processes and capable of explaining how disclosure of the privileged material, with reference to specific documents, would harm the agency and the public. Courts routinely reject assertions of the deliberative process privilege when supported only by boilerplate declarations. One of the few published cases to uphold assertions of the privilege in an analogous context to preparation of CEQA documents is Humane Society of U.S. v. Superior Court (2013) 214 Cal.App.4th 1233, where the agency submitted a detailed declaration documenting how the public interest clearly favored non-disclosure for the specific documents withheld in that case.

If only a few privilege determinations are challenged, marshaling this evidence may prove relatively straightforward. But providing justifications for hundreds (or more) such determinations can quickly become costly. In such cases, agencies can consider grouping privileged documents into categories, organized by the interests at stake. For example, the agency could establish a category for

• internal agency discussions regarding how the agency should respond to public comments;
• internal deliberative communications amongst the agency’s decision-makers or between decision-makers and staff regarding policy issues; and
• internal staff communications that inform the agency’s policy deliberations.

Each of these categories implicates a variety of interests—for example,

• protecting internal creative debate to improve decisional quality;
• protecting the public from the confusion that would result from releasing non-final deliberations; and
• ensuring decision-makers are judged for what they decided, not what they considered.

Outside of preparing the necessary declarations, the agency will need to lodge any disputed deliberative documents under seal with the Court for in camera review. (The California Rules of Court provisions for filing documents under seal do not govern here.) Agencies need not lodge documents subject to the attorney-client privilege under seal, however, because Evidence Code section 915(a) expressly prohibits in camera review of such documents. A privilege log or other similar document, along with a supporting declaration, should provide information sufficient for the court to evaluate claims of the attorney-client privilege.

As the preceding discussion illustrates, litigating a dispute over an agency’s privilege claims, and particularly claims of the deliberative process privilege, can easily become an expensive endeavor. Given the expense and risks involved, agency counsel in many cases may decide that asserting the deliberative process privilege is not worthwhile as a practical matter. However, the privilege remains alive and well, and in an appropriate case, should be asserted. In such cases, however, attorneys should also temper their client agencies’ expectations, cautioning them that the deliberative process privilege involves a subjective balancing test that will seldom result in a wholesale win for agencies opposing disclosure.

For more information on how your agency can review and evaluate potentially privileged information in CEQA and other administrative law cases, contact Matthew McKerley. Matthew thanks law clerk Luis Martinez for his research assistance and help drafting this article.