First District Re-Affirms Public Agency’s Ability to Recover Administrative Record Preparation Costs Even Where the Petitioner Elects to Prepare the Record

On September 16, in Coalition for Adequate Review v. City and County of San Francisco, the First District held that a public agency is not automatically barred from recovering administrative record preparation costs under the California Environmental Quality Act (“CEQA”) even though the Petitioner has elected to prepare the administrative record.  The Court rejected arguments by the petitioners that their election to prepare the record immunized them from San Francisco’s record preparation costs and the argument that high agency record preparation costs would “chill” the filing of CEQA petitions.

In the trial court, petitioners had elected to prepare the administrative record, but, just before the record was to be certified, San Francisco informed petitioners that additional documents had been located that were a necessary part of the record.  Petitioners refused to include these documents, so San Francisco “partially certified” the record and prepared and certified a supplemental administrative record.  San Francisco then won the case on the merits and sought to recover more than $60,000 in costs for the preparation of the supplemental administrative record. 

The Court of Appeal reversed the trial court’s granting of petitioners’ motion to tax those costs with instructions that the trial court examine the reasonableness of San Francisco’s costs.  Of note, the Court of Appeal allowed recovery of paralegal time for “labor in compiling the record” including retrieving, reviewing, organizing, and indexing documents, but not paralegal time for reviewing a petitioner-prepared record “for completeness.” 

Coalition for Adequate Review takes a step in the right direction for redistributing the increasingly onerous costs of agencies assisting in “petitioner-prepared” administrative record.   More still needs to be done, however, to prevent the burden of compiling the documents that constitute the administrative record from agency files from falling on the shoulders of the agency’s taxpayers.