Fifth District Court of Appeal Holds That Privileged Documents Shared Between Applicants and Agencies During The CEQA Administrative Process Are Not Protected From Disclosure and Inclusion In The Administrative Record

In an opinion with potentially significant consequences for the preparation of EIRs and other environmental review documents under CEQA, the Fifth District Court of Appeal (Fresno) has ruled in Citizens for Ceres v. City of Ceres that any attorney-client privilege or work product protection which initially attaches to a document is waived if that document is shared, prior to project approval, between a project applicant and the agency conducting CEQA review.  This would mean that otherwise privileged documents that concern the project at issue or compliance with CEQA generally, if shared among applicant and agency prior to project approval, are subject to disclosure and must be included in the administrative record which the court reviews in CEQA litigation.     

CEQA generally requires that any document in the lead agency’s files that is relevant to the proposed project or compliance with CEQA must be included in the administrative record.  In the past, however, some agencies had relied on the so-called “common interest” doctrine of non-waiver of privilege to exclude from the record otherwise relevant documents prepared by or for attorneys for either the applicant or the agency, even if those documents had been communicated between the applicant and the agency considering the project. 

Citizens for Ceres rejects a blanket holding that CEQA requires inclusion in the record of all privileged documents (such as documents created by a city attorney and communicated solely within a city).  The case also does not disturb application of the common interest doctrine to shield privileged documents that are shared between applicant and agency after the agency has approved a project.  After project approval, the court recognized, an applicant and an agency have a common interest in defending an approval against legal challenge, which may allow them to share privileged documents without waiver of privilege. 

However, Citizens for Ceres also rejects the idea that an applicant and an agency can ever have a common interest in preparing a legally defensible CEQA document prior to project approval.  The court reasoned that the applicant’s and the agency’s interests, and their respective ideas of what constitutes a “legally defensible” CEQA document, are “fundamentally at odds” during the pre-approval stage.  On this basis, the court rejected application of the common interest document to exclude from the administrative record initially privileged documents which had been shared among the applicant and the agency prior to project approval.

Citizens for Ceres creates a split in authority to the extent it conflicts with California Oak Foundation v. County of Tehama (2009) 174 Cal.App.4th 1217.  In that case, the Third District (Sacramento) held that an applicant and an agency had a common interest in producing an EIR that would be defensible in “subsequent” litigation, and applied the common interest doctrine to exclude from the administrative record documents prepared by the agency’s outside counsel that were shared with a developer.  Citizens for Ceres expressly rejects that holding to the extent it applies the common interest doctrine to documents which were shared prior to project approval. 

At least in the Fifth District, therefore, and until future case law finally resolves the issue, project applicants and agencies preparing CEQA review should be aware that any document relevant to a proposed project or CEQA compliance in general that is shared between a project applicant and an agency considering the project prior to project approval may have to be disclosed in the administrative record in any subsequent legal challenge under CEQA.