Judge Robert C. Longstreth, Case 37-2022-00015872-CU-WM-CTL 2023-12-15 Tentative Ruling

Judge: Robert C. Longstreth, Case: 37-2022-00015872-CU-WM-CTL, Date: 2023-12-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 14, 2023

12/15/2023 03:30:00 PM C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited Writ of Mandate Hearing on Petition 37-2022-00015872-CU-WM-CTL SAVE FAMOSA CANYON VS SAN DIEGO HOUSING COMMISSION [IMAGED] CAUSAL DOCUMENT/DATE FILED: Petition for Writ of Mandate, 04/28/2022

Petitioner Save Famosa Canyon's Verified Petition for Writ of Mandate to Compel Compliance with Public Records Act (ROA 1, 47) is GRANTED.

Petitioner made a request for disclosure of public records to Respondent San Diego Housing Commission pursuant to the California Public Records Act ('CPRA') via a letter dated February 3, 2022.

The letter identified six requests and stated the requests included 'correspondence, notes, memos, and emails' and 'all draft and final versions of records,' and was limited in scope to 'records from on or after December 11, 2020.' (Pet. at Exh. 1.) The Commission responded via letter dated February 14, 2022, providing links to several records available online, asserting it had no records responding to some of Petitioner's requests, and otherwise objecting to the requests. (Id. at Exh. 2.) The parties continued to confer over the requests for several months. This writ petition was ultimately filed on April 28, 2022.

The Commission asserts Petitioner failed to exhaust its administrative remedies before initiating this petition. The Commission cites its administrative policy, which provides '[a]ny person may appeal a decision to deny access to a public record by filing, within ten working days of the denial, a written request for review of the denial with the Executive Director.' (AR000002, ¶ 3.5.) In its opposition, the Commission does not appear able to decide whether its own appeal process was triggered. The Commission asserts the decision of its Vice President 'wasn't final' (Opp. at 8:7). It is difficult to imagine how Petitioner could be expected to initiate an administrative appeal of a decision the Commission itself believes was not final. The Commission also asserts it has not denied Petitioner access to any public records, but instead has merely asked the Petitioner to provide a narrowing of its request. However, the court notes Petitioner's initial request was limited in time and scope, and that Petitioner did provide clarification of its request in a March 28, 2022 letter. The Commission also circuitously asserts 'there was no appeal filed because there was nothing to appeal.' It is undisputed, however, that the Commission has not provided all documents sought by Petitioner. The court also notes that the Commission has never identified any document in which it informed Petitioner that the appeal process had been triggered, and it does not identify even now when the appeal process should have been invoked. Accordingly, it may not rely a failure to trigger any such process as a reason for further delay in the resolution of this matter. Implementing such a delay would be contrary to the intent of the CPRA.

In addition, to the extent that an appeal process is adopted by an agency, it must be consistent with both the procedures and intent of the CPRA, which includes the intent to enable speedy public access to records. (Rittiman v. Public Utilities Commission (2022) 80 Cal.App.5th 1018, 1038.) Here, the Calendar No.: Event ID: TENTATIVE RULINGS

3065478 51 CASE NUMBER: CASE TITLE: SAVE FAMOSA CANYON VS SAN DIEGO HOUSING COMMISSION 37-2022-00015872-CU-WM-CTL Commission has not sufficiently demonstrated that its appeal process complies with the intent of the CPRA. '[I]t is well-established that the exhaustion of administrative remedies is excused where, as here, the administrative procedure is too slow to be effective [citations].' (Ibid.) The Commission points to no provision in its procedures that ensure that any appeal will be timely considered, instead relying on a self-serving declaration that any such appeal would have been considered promptly had it been filed.

This claim is unsupported by any evidence; for example, the Commission points to no specific instance in which an appeal was filed and promptly addressed.

Accordingly, the Commission's exhaustion argument fails.

As to Request Nos. 1 and 3-6, the Commission initially responded it had no responsive documents because 'there is no 'project' at this time for the property that the Housing Authority of the City of San Diego (Housing Authority) owns at the southeast corner of Famosa and Nimitz Boulevards.' (Petition at Exh. 2.) In its subsequent April 4, 2022 response, the Commission asserts the project referenced in the Exclusive Negotiating Agreement between the Housing Authority and the developer 'is not a 'project' for the purposes of the California Environmental Quality Act [citation].' (Petition at Exh. 5.) In its opposition, the Commission asserts it 'simply was attempting to inform Petitioner about the legal definition of a 'project' as it may relate to the possibility of development at the Property.' (Opp. at 6:3-5.) This assertion cannot be squared with the Commission's responses to the requests, where it bases its claims that it has no responsive documents on its purported definition of the term 'project' as apparently excluding any potential 'project.' (Pet. at Exhs. 2 and 5.) Whether the 'project' referenced in Petitioner's request was or was not subject to CEQA at the time the request was made is irrelevant to the Commission's obligations to produce any disclosable records under the CPRA. The Commission has not cited any legal authority to suggest that it may refuse to disclose records on these grounds, or that the records are somehow exempt from disclosure on these grounds. A public record is a public record whether it relates to a CEQA project or not.

The Commission continues to stand on its objection, first raised in its February 14, 2022 response, to Petitioner's request for all correspondence, notes, memos, and emails on the grounds the request is 'overly broad, burdensome, and oppressive.' (Pet. at Exh. 2.) This argument is unavailing as well. As one appellate court recently observed: 'In the days before computer technology, identification and transmittal of paper documents meeting the description in the request might have imposed an enormous burden, but technology has greatly simplified identification and transmittal of electronic documents.

Employing computer technology, the County was able to quickly locate e-mails potentially responsive to this request.' (Getz v. Superior Court (2021) 72 Cal.App.5th 637, 642.) Here, the Commission was obviously able to quickly identify emails potentially responsive to Petitioner's request, because its February 14, 2022 letter indicates its initial search revealed at least 6,150 electronic communications. (Pet. at Exh. 2.) Like the agency in Getz, the Commission claims it will be required to individually sift through each of these communications to determine whether they are truly responsive and whether there is any applicable privilege that may justify withholding them. The court in Getz makes clear that this is not a basis for refusing to disclose public records. (Getz at p. 658.) As Petitioner notes, Getz involved a claim that a review of over 40,000 records would be required, yet the trial court's decision to relieve the agency of providing records on the ground of burdensomeness was still rejected.

Finally, the Commission attempts to assert all records responsive to Petitioner's request Nos. 1 and 3-6 have already necessarily been produced, based on its production in response to request No. 2. In a similar vein, the Commission points out it has produced additional records while this litigation is pending.

However, the court is not persuaded the Commission has produced all responsive records. First, because the Commission has yet to produce emails and other correspondence, it has not produced all records responsive to any of the requests. Second, even assuming the Commission's response to request No. 2 is otherwise sufficient, the Commission's only response to Petitioner's request Nos. 1 and 3-6 was a statement that it had no responsive records, which is clearly incorrect given the Commission's Calendar No.: Event ID: TENTATIVE RULINGS

3065478 51 CASE NUMBER: CASE TITLE: SAVE FAMOSA CANYON VS SAN DIEGO HOUSING COMMISSION 37-2022-00015872-CU-WM-CTL new assertion that all of the records responsive to request No. 2 are also responsive to request Nos. 1 and 3. Third, the Commission does not explain how it can continue to raise a burdensomeness objection to producing all requested records while simultaneously claiming that it has produced all requested records.

The Commission is ordered to disclose all records responsive to the February 4, 2022 requests, including all correspondence, notes, memos, and emails, to the Petitioner.

Petitioner is to submit a proposed Judgment within five (5) days.

Calendar No.: Event ID: TENTATIVE RULINGS

3065478 51