California Public Records Act:
Exemption for Records Pertaining to Litigation
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Q: What is the CPRA exemption for litigation-related documents?
Q: What kinds of information does the pending litigation
exemption cover?
Q: Are records showing money paid and other details of lawsuits
settled by a government agency public?
Q: Can settlement payments be withheld from disclosure under
the public interest balancing test?
Q: What is the CPRA exemption for litigation-related documents?
A: The exemption in Government Codes Section 6254 (b) states:
Section 6254. Except as provided in Section 6254.7, nothing in this chapter shall be
construed to require disclosure of records that are . . . : (b) Records pertaining to
pending litigation to which the public agency is a party, or to claims made pursuant to
Division 3.6 (commencing with Section 810), until the pending litigation or claim has been
finally adjudicated or otherwise settled.
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Q: What kinds of information does the pending litigation
exemption cover?
A: The range of records "pertaining to pending litigation" for purposes of
this exemption has been analyzed by the Attorney General in two 1988 published opinions:
Distinguished from Attorney-Client Privilege. In 71 Ops.
Cal. Atty. Gen. 5, the conclusion was that while the exemption includes materials that
would be protected by the attorney-client privilege, it is not limited to those materials.
Thus although the exemption by its own terms expires when "the pending litigation has
been finally adjudicated or otherwise settled", the materials that would be
independently protected as confidential attorney-client communications (see below) remain
exempt as privileged, while the other materials become available to the public.
Inapplicable to Pre-existing Records, Claims. In 71 Ops.
Cal. Atty. Gen. 235, the more fundamental question was addressed: to what materials does
the exemption apply? The answer: Documents prepared or acquired by the agency in the
course of litigating -- materials generated by the litigation process itself. The
exemption does not apply to records, however relevant, that were created in the ordinary
course of the agency's business or for other purposes prior to the litigation.
An arrest report may later become relevant to defending a suit for excessive force by a
police officer, for example, but it is not subject to this exemption because it pre-dates
the litigation and was not created for litigation purposes. Likewise the pre-litigation
claim submitted to the agency pursuant to the Tort Claims Act (stating the claimant's name
and address, the date, place and circumstances of the event resulting in the claim, a
description of the injury or loss, and the amount claimed if less than $10,000) is not
subject to this exemption. The Brown Act open meeting law makes such claims accessible, in
fact, as one means of informing the public as to the subject of a closed litigation
session of a local legislative body (see Government Code Section 54956.9 (b) (3) (C)).
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Q: Are records showing money paid and other details of lawsuits
settled by a government agency public?
A: Yes. Despite the "sunset" phrasing which qualifies the pending litigation
exemption, some public agencies continue to withhold information about litigation
settlements, and sometimes even instigate or agree to nondisclosure clauses with the other
party, purporting to bind both sides from releasing details about settlements. If such
agreements are confined to precluding comments or oral disclosures, they may well be
enforcible.
But an agreement by a public agency with a settling party not to disclose records
pertaining to the settlement cannot be enforced against a request under the CPRA, the
California Court of Appeal for the Fourth District has held (Register Division of
Freedom Newspapers v. County of Orange, 158 Cal. App. 3d 893 (1984)). The Register
case concluded that not only the agreement setting forth the monetary and other terms of
the settlement, but other pertinent documents were available under the Act, despite other
exemptions, including:
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Q: Can settlement payments be withheld from disclosure under the
public interest balancing test?
A: No, according to the Register case. The argument that secrecy is in the
public interest because disclosure of monetary settlement amounts might encourage others
to file nuisance claims is, in the court's view, overbalanced by "the public interest
in finding out how decisions to spend public funds are formulated and in insuring
governmental processes remain open and subject to public scrutiny" ... (which will)
... "put prospective claimants on notice that only meritorious claims will ultimately
be settled with public funds."
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