Untitled California Attorney General Opinion ( 1988 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
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:
OPINION : No. 87-304
:
of : July 13, 1988
:
JOHN K. VAN DE KAMP :
Attorney General :
:
RONALD M. WEISKOPF :
Deputy Attorney General :
:
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THE HONORABLE MAXINE WATERS, MEMBER OF THE CALIFORNIA
ASSEMBLY, has requested an opinion of this office on the following
questions:
1. What records pertain to "pending litigation" within
the meaning of subdivision (b) of section 6254 of the Public
Records Act?
2. Do records of a public agency which pertain to
litigation against the agency become exempt from public disclosure
under subdivision (b) of section 6254 when a claim against the
agency is filed if the records were not exempt from disclosure
before that time by other provisions of the Public Records Act?
3. Do police records which must be disclosed under
subdivision (f) of section 6254 become exempt from disclosure under
subdivision (b) when they pertain to pending litigation to which
the public entity is a party?
4. Is a claim filed against a public agency under
California's Tort Claims Act itself exempt from disclosure under
subdivision (b) of section 6254?
CONCLUSIONS
1. The phrase "records pertaining to pending
litigation" contained in subdivision (b) of section 6254 of the
Public Records Act refers to records of a public agency which have
specifically been prepared for litigation to which the agency is a
party.
2. Records generated in the ordinary course of a public
agency's business which may be relevant in future litigation to
which the agency might be a party are not exempt from disclosure
under subdivision (b) of section 6254 before a claim is filed with
the agency or litigation against it commences. Nor do such records
become exempt from disclosure under the subdivision once a claim is
filed or litigation against the agency actually commences.
3. Police records which had to be disclosed under
subdivision (f) of section 6254 of the Public Records Act are not
exempt from disclosure under subdivision (b) if they become
relevant in pending litigation to which the public agency is a
party.
4. A claim filed against a public agency under
California's Tort Claims Act is not exempt from disclosure under
subdivision (b) of section 6254 of the Public Records Act.
ANALYSIS
The California Public Records Act ("the PRA"; Stats.
1968, ch. 1473, § 39, p. 2945; Gov. Code, §§ 6250-6265) deals with
the ability of members of the public to have access to public
records maintained by various state and local agencies throughout
the state. The term "public records" is defined in subdivision (d)
of section 6252 of the Act to include "any writing containing
information relating to the conduct of the public's business
prepared, owned, used, or retained by any state or local agency
regardless of physical form or characteristics." On a prior
occasion we observed that the definition is "nearly all-
encompassing" and that its legislative history indicates that it
was "intended to cover every conceivable kind of record that is
involved in the governmental process and . . . pertain to any new
form of record-keeping instrument as it is developed." (58
Ops.Cal.Atty.Gen. 629, 633-634 (1975), quoting A Final Report of
the California State Assembly Statewide Information Policy
Committee on the California Public Records Act of 1968 (Mar. 1970),
1 Appendix to Journal of the Assembly (Reg. Sess. 1970) at p. 7;
cf. Braun v. City of Taft (1984) 154 Cal. App. 3d 332, 340; San
Gabriel Tribune v. Superior Court (1983) 143 Cal. App. 3d 762, 774;
Vallejos v. California Highway Patrol (1979) 89 Cal. App. 3d 781,
785; Cook v. Craig (1976) 55 Cal. App. 3d 773, 781-782.)
The general policy of the PRA, like the federal Freedom
of Information Act upon which it was modeled (5 U.S.C., § 552,
et seq.), favors disclosure of public records. (§ 6250; cf.
Register Div. of Freedom Newspapers, Inc. v. County of Orange
(1984) 158 Cal. App. 3d 893, 901; Cook v. Craig, supra, 55 Cal.App.3d
at 781; Braun v. City of Taft, supra, 154 Cal.App.3d at 342; San
Gabriel Tribune v. Superior Court, supra, 143 Cal.App.3d at 772; 53
Ops.Cal.Atty.Gen. 136, 143 (1970).) Indeed, in enacting it, the
Legislature found and declared that "access to information
2. 87-304
concerning the conduct of the people's business is a fundamental
and necessary right of every person in this state." (§ 6250.)
But, as was noted in Black Panther Party v. Kehoe (1974) 42
Cal. App. 2d 645, 655:
"If citizenship in a functioning democracy requires
general access to government files, limited but genuine
interests also demand restricted areas of nonaccess.
Decisional law on the subject accepts the assumption that
a statute calling for general disclosure may validly
define reasonably restricted areas of nondisclosure,
provided that the latter are justified by genuine public
policy concerns."
The PRA thus strikes a balance between "the public's right to know"
and the need to maintain areas of nondisclosure for certain types
of government records. (Cf. 64 Ops.Cal.Atty.Gen. 575, 579 (1981).)
It basically provides that except as otherwise provided, public
records are to be open to inspection at all times during the office
hours of public agencies (§ 6253, subd. (a)) and that any person
may receive a copy of any identifiable public record upon request
(§ 6256) and payment of a prescribed fee (§ 6256). (See 69
Ops.Cal.Atty.Gen. 129, 131 (1986); 64 Ops.Cal.Atty.Gen. 575, 579­
580, supra.) This general right of public inspection, though, is
followed in section 6254 with 20 categories of disclosure-exempt
material which permit an agency not to disclose particular records
that fall within them. (§ 6254 1; Black Panther Party v. Kehoe,
supra, 42 Cal.App.2d at 656.) In addition, a "residual category"
of confidential records is described in section 6255 which permits
an agency to withhold a record from disclosure under the Act, where
"on the facts of [a] particular case the public interest served by
not making the record public clearly outweighs the public interest
served by disclosure of the record." (§ 6255; cf. Black Panther
Party v. Kehoe, supra at 650, 657; 64 Ops.Cal.Atty.Gen., supra at
584-585; 53 Ops.Cal.Atty.Gen. 136, 148 supra.) It is also
important to bear in mind that a particular record may receive
protection from disclosure from a source outside the PRA.2
1
Section 6254 commences with the words: "Except as provided
in Section 6254.7, nothing in this chapter [i.e., the Public
Records Act] shall be construed to require disclosure of records
that are any of the following: . . . ." Exemptions contained in
subdivisions (a) through (t) then follow. Section 6254.7 deals
with whether some very particular types of records are "public
records."
2
The key exemption from PRA disclosure, that offered by
subdivision (k) of section 6254, was designed to recognize this.
It offers protection for "[r]ecords the disclosure of which is
exempted or prohibited pursuant to provisions of federal or state
law, including, but not limited to, provisions of the Evidence Code
3. 87-304
All of our questions pertain solely to the exemption
provided in subdivision (b) of section 6254. It provides an
express exemption from PRA disclosure for:
"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) of Title 1
of the Government Code [i.e., California's Tort Claims
Act], until such litigation or claim has been finally
adjudicated or otherwise settled."
We are asked: (1) what records are embraced by the subdivision;
(2) whether records that were generated in the ordinary course of
an agency's business and were not exempt from PRA disclosure,
become exempt from disclosure by virtue of the subdivision when a
claim is filed against the agency and the records will pertain to
the litigation; (3) whether subdivision (b) provides an exemption
for police records which must be disclosed under subdivision (f) of
section 62543; and (4) whether it covers the claim document
itself. Our answers are confined to the operation of subdivision
(b) and do not address whether another exemption may exempt a
particular document from public disclosure.
relating to privilege." (§ 6254, subd. (k).) The legislative
history of the PRA indicates that "[t]he effect of that language
[was] to continue in force the various statutes scattered
throughout the codes that pertain to records of a particular type
kept by a public officer or agency." ( Final Report , op. cit.
supra, at 13-14; cf., id. at 11.)
3
Subdivision (f) of section 6254 generally exempts from PRA
disclosure, "records of complaints to, or investigations conducted
by, or records of intelligence information or security procedures
of . . . any state or local police agency," but it also provides
that state and local law enforcement agencies shall disclose
certain information relating to "incidents" (such as the names and
addresses of persons involved and witnesses to them; a description
of any property involved; the date, time, and location; all
diagrams; statements of parties and witnesses) unless the
disclosure would endanger the successful completion of the
investigation or a related investigation. The subdivision also
requires state and local law enforcement agencies to make certain
other information public, i.e., certain information relating to
persons arrested by the agency and certain information relating to
complaints or requests for assistance received by the agency,
unless disclosure would endanger the safety of a person involved in
an investigation or would endanger the successful completion of the
investigation or a related one.
4. 87-304
1. What Records Pertain To Pending Litigation?
We are first asked to decipher the phrase "records
pertaining to pending litigation." Specifically we are asked what
records are embraced by it. In resolving the question we first
turn to the words of the subdivision themselves and look to their
plain, ordinary and usual meaning. (Cf. People v. Craft (1986) 41
Cal. 3d 554, 560; People v. Castro (1985) 38 Cal. 3d 301, 310;
People v. Belleci (1979) 24 Cal. 3d 879, 884; Madrid v. Justice
Court (1975) 52 Cal. App. 3d 819, 824; Rich v. State Board of
Optometry (1965) 235 Cal. App. 2d 591, 607.) Reference to
dictionaries is helpful toward that end. (People v. Spencer (1975)
52 Cal. App. 3d 563, 565; People v. Medina (1972) 27 Cal. App. 3d 473,
479; People v. Johnson (1957) 147 Cal. App. 2d 417, 419.)
Subdivision (b) offers protection to "records pertaining
to pending litigation to which the public agency is a party." The
term "pending litigation" is one of art which refers to a suit
which has already commenced but is not yet decided. (Ballentine's
Law Dict. (3d ed. 1969) at 929-930; Black's Law Dict. (4th ed.
1951) at 1291.) But the term "litigation" is a broad one and
embraces more than just court actions. For example, in the cognate
situations of the Bagley-Keene Open Meeting Act (Gov. Code, § 11120
et seq.) and the Ralph M. Brown Act (Gov. Code, § 54950 et seq.)
the term has been defined as "any adjudicatory proceeding,
including eminent domain, before a court, administrative body
exercising its adjudicatory authority, hearing officer, or
arbitrator." (§ 11126, subd. (q); § 54956.9.) We believe it has
a similarly broad meaning in the Public Records Act. There section
6254, subdivision (b) would protect any records that "pertain" to
such actions to which an agency is a party.
The word "pertain" means to relate, to belong, to be
pertinent to something else. (Webster's Third New Intn'l. Dict.
(1971 ed.) at p. 1688.) Needless to say, that something else has
to exist. That "something else" here is "pending litigation"-­
i.e., "litigation" of whatever sort that actually exists because of
a filing of a first paper to initiate it. Once litigation
commences, papers will be generated as a result to deal with it.
When it spoke of "records pertaining to pending litigation" in
subdivision (b) we believe the Legislature had such documents in
mind.4
4
The subdivision of course also specifically mentions records
pertaining to "claims made pursuant to [California's Tort Claims
Act]" as coming within its exemption "until such . . . claim has
been finally adjudicated or otherwise settled." Generally
speaking, before bringing suit against a public entity, one must
first present a claim to it under the Tort Claims Act. (Gov. Code,
§ 810 et seq.; see §§ 810, 811.2, 945.4, 950.6; City of San Jose v.
Superior Court (1974) 12 Cal. 3d 447, 454; Loehr v. Ventura County
5. 87-304
It has been suggested, however, that the proper standard
to be used under subdivision (b) is to offer protection to any
records of an agency which might be "relevant to" or "relate to"
pending litigation to which it is a party, no matter when or why
they may have been created. In other words, should a record come
to relate to litigation, it would then be afforded protection under
subdivision (b). We reject the suggestion.
In the course of performing their normal statutory
functions, public agencies prepare a wide range of documents which
are subject to disclosure as public records under normal agency
practices. Indeed, only by having such documents publicly
available are the people able to be aware of the conduct of
governmental agencies and their expenditure of public funds. (Cf.
Register Div. of Freedom Newspapers, Inc. v. County of Orange,
supra, 158 Cal.App.3d at 909; San Gabriel Tribune v. Superior
Court, supra, 143 Cal.App.3d at 780.) These documents are prepared
with the knowledge that they will be subject to public scrutiny,
and the persons who prepare them, do so with that understanding.
One of the problems with the suggestion that is offered is that it
ignores that once documents are thus created for the public domain
and have been made public, their nature does not change. The
proverbial cat, as it were, is already out of the bag. (Cf. Black
Panther Party v. Keogh, supra, 42 Cal. App. 2d at 656.) Indeed, in
this vein we would observe that section 6254.5 of the PRA goes even
further, for it provides that whenever an agency discloses a public
record which is otherwise exempt from the PRA to any member of the
public, "the disclosure shall constitute a waiver of the exemptions
specified in Section[] 6254 . . . ." We deal here with records
that were not previously exempt from disclosure.
Another problem with the suggestion is the consequences
that would ensue if it were adopted. Rather than looking to a
document's nature at the time it was created, the suggestion would
somehow mutate the already public nature of the document on the
happening of a subsequent event, the commencement of litigation,
and would exempt it from disclosure under the PRA. Massive numbers
of documents already in the public domain would no longer be
available until litigation to which they relate, is terminated.
For example, many property damage cases often involve project
engineering reports and studies which have already received
significant distribution prior to the litigation. But suddenly, a
suit over a levee failure in the Delta, for example, would make
Community College Dist. (1983) 147 Cal. App. 3d 1071, 1080; Eaton v.
Ventura Port Dist. (1975) 45 Cal. App. 3d 862, 866.) Since the
protection offered by subdivision (b) specifically extends to
records which "pertain to" such claims, the effect of that specific
inclusion is to extend the chronological boundary of the
subdivision's protection back to the time after which such claims
are filed.
6. 87-304
confidential all of the data on the Sacramento and San Joaquin
River Flood Control Projects and other Delta Water Management
Reports. And if the contention should be that heavy rains caused
the failure, the literal impact of the suggestion would make
weather reports and back up statistical data confidential and not
available to anyone until the litigation is resolved. We do not
believe the Legislature intended that effect of subdivision (b).
Statutes, after all, are construed considering the consequences
that might flow from particular constructions (cf. People v. Hannon
(1971) 5 Cal. 3d 330, 335; Estate of Ryan (1943) 21 Cal. 2d 498,
513; People ex rel. Riles v. Windsor University, Inc. (1977) 71
Cal. App. 3d 326, 332) and interpretive constructions which defy
common sense or lead to absurdity are to be avoided ( Younger v.
Superior Court (Mack) (1978) 21 Cal. 3d 102, 113-114; Fields v. Eu
(1976) 18 Cal. 3d 322, 328).
For these reasons--and, as will be discussed next in
connection with our answer to the second question, because these
records antedate the initiation of particular litigation--we reject
the suggested interpretation of subdivision (b).
It has also been suggested that the meaning of the
exemption found in subdivision (b) should be strictly confined to
that which was briefly articulated in State of California ex rel.
Division of Industrial Safety v. Superior Court (1974) 43
Cal. App. 3d 778. The court in that case said that subdivision (b)
"essentially provides public agencies with the protection of the
attorney-client privilege, including work product, for a limited
period while there is ongoing litigation." ( Id. at 783.) There
are several problems with giving such a limited meaning to
subdivision (b).
There is no question that the exemption found in the
subdivision was intended to uphold the attorney-client privilege
for public agencies and, indeed, the legislative history of the PRA
indicates as much. (Final Report, op. cit. supra, at 9.) However,
strictly focusing on the privilege and the rule does not provide a
satisfactory explanation of the meaning of subdivision (b) for
several reasons.
--To begin with, subdivision (b) is not the source of the
protection offered public agencies by the lawyer-client privilege
and the work-product rule; to the contrary, that protection
derives from other sources which antedate the passage of the Public
Records Act. (70 Ops.Cal.Atty.Gen. 28, 29, 31, 37 (1987); cf.
Evid. Code, §§ 954, 175; Code Civ. Proc., § 2018.) Indeed, the
aforementioned legislative history of the PRA states that "[t]his
section [i.e., subdivision (b)], in effect upholds the attorney-
client privilege. Subsections (f) and (k) [of § 6254] also
contribute to the strength of that privilege." ( Final Report,
supra, at 9; emphases added.) Clearly, the Public Records Act did
not create it.
7. 87-304
--Then, as noted in a recent opinion dealing with the
matter, lawyer-client communications, work-product files, and
litigation records are not coextensive. "Just as lawyer-client
communications and work product files are not identical [citation],
a record may pertain to pending litigation without being a
confidential communication between lawyer and client or produced at
the initiative of the attorney in preparation for trial." (71
Ops.Cal.Atty.Gen. 5, 8 (1988). Thus we said, "[b]y use of the word
'essentially', the court [in the Industrial Safety case] cannot be
said to have equated [them]." (Ibid.)
--Lastly, the time frame for protection offered by
subdivision (b) is more limited than that provided by the attorney-
client privilege or the work-product rule. As we have seen, and as
will be amplified in connection with our answer to the second
question, that of subdivision (b) begins with the commencement of
particular litigation to which a public agency is a party, or after
the filing of a claim against it under the Tort Claims Act, and
terminates with the final adjudication or settlement of the
litigation or the claim. The protection from disclosure offered by
the attorney-client privilege and work product rule is not so
temporally confined: it covers transactions antedating the
commencement of litigation (70 Ops.Cal.Atty.Gen., supra, at 29-32,
37), and it continues after litigation has terminated (71
Ops.Cal.Atty.Gen., supra, at 8-9).
Our interpretation has harmonized the exemption provided
in subdivision (b) for records pertaining to pending litigation
with the attorney-client privilege and the work product rule, by
interpreting the former to protect materials that are developed in
connection with an agency's prosecuting, defending, appealing or
settling any "litigation" to which it has become a party, upon a
complaint, or other initiating document, being filed. Subdivision
(b) would thereafter exempt from PRA disclosure all documents
generated for the litigation during its pendency.
We therefore conclude that the phrase "records pertaining
to pending litigation" found in subdivision (b) of section 6254 of
the PRA refers to records that are prepared in connection with
specific "litigation" to which a public agency has become a party.
As we now see, the chronological boundary to establish when the
exemption of the subdivision applies, is the filing of the
complaint or other initiating document for the action; thereafter
subdivision (b) would exempt from disclosure all documents
generated in connection with the litigation. However, disclosure
would be required of documents that pre-date the filing of the
initiating document, unless their disclosure is protected by some
other provision of law.
8. 87-304
2. Agency Records Generated in the Ordinary Course
of Business Before Litigation Commences
The second question asks whether records of a public
agency which pertain to litigation against the agency become exempt
from public disclosure under subdivision (b) of section 6254 when
a claim is filed against the agency, if the records were not exempt
from disclosure before that time by other provisions of the Public
Records Act. In effect the question asks whether any records
maintained by an agency that are generated in the normal course of
business before particular litigation commences, or a claim against
an agency is filed, can ever be subsumed under the exemption found
in subdivision (b).
We assume the question contemplates two aspects: one,
whether records which are not otherwise exempt from disclosure but
which might perchance pertain to future litigation are for that
reason protected from disclosure by subdivision (b); and two,
whether records which do come to relate to particular litigation
involving the agency become exempt from public disclosure under the
subdivision if they were not otherwise exempt from disclosure
before that time. We conclude that subdivision (b) neither offers
exemption from disclosure to records on the chance that they might
become relevant in future litigation to which the agency might be
a party, nor does it offer exemption from disclosure once the
records do come to relate to such litigation.
By terms of subdivision (b) itself, the protection it
offers is temporary, in that it provides but a specific time frame
for its exemption from disclosure of public records to operate.
The subdivision speaks of "records pertaining to pending litigation
to which the public agency is a party, or to claims made pursuant
to [the Tort Claims Act]" and "until such litigation or claim has
been finally adjudicated or otherwise settled." Those phrases
confine the operative beginning and end of the protection provided
by the subdivision to the commencement of the litigation or claim,
i.e., the time after the first pleading is filed to initiate it,
and its termination. Accordingly, in answering the first question
we concluded that the phrase "records pertaining to pending
litigation" means those records of a public agency which have been
specifically prepared for particular litigation to which it has
become a party. Since the existence of particular litigation or a
particular claim is a sine qua non for records to be able to
"pertain to" it, the protection of subdivision (b) would not extend
to records that antedate the commencement of the litigation or the
filing of a claim.
Subdivision (b) plainly speaks of an exemption for
"records pertaining to pending litigation to which the public
agency is a party." (Emphasis added.) The legislative history of
the PRA indicates that was not meant to "grant to [a] public agency
the right to withhold information on the basis that litigation may
9. 87-304
occur at some time in the future." (Final Report, op. cit. supra,
at 9; emphasis added.) Thus, both the plain wording of the
subdivision, and the indication of legislative intent found in its
legislative history tell that subdivision (b) was never meant to
exempt from PRA disclosure, records generated in the ordinary
course of an agency's business on the mere possibility of future
litigation or a future claim being filed against it.5
Nor will such preexisting records become protected by the
subdivision once litigation actually commences, or a claim is filed
against the agency, and the records are relevant to the litigation
or claim. Subdivision (b) protects from PRA disclosure records
which pertain to pending litigation or claims filed against the
agency. With respect to the former, we have concluded that means
records which are specifically generated for particular litigation,
and not preexisting records that may have existed which may now be
5
It should be noted that in connection with the state's Open
Meeting Laws, the Bagley-Keene and Ralph M. Brown Acts, the
legislature has permitted state and local agencies to confer with
their attorney in closed session to discuss "pending litigation"
and the Legislature has defined that term for purposes of those
Acts to include, not only the point where an adjudicatory
proceeding has been "initiated formally" (§§ 11126(q)(1);
54956.9(a)), but points before that "where . . . there is a
significant exposure to litigation" against the state body or local
agency. (§§ 11126(q)(2)(A), 54956.9(b)(1).) It has been suggested
that since the term "pending" can mean "imminent" or "impending"
(cf. Webster's, op. cit. supra, at 1669), we should adopt a similar
meaning of "pending litigation" for the purposes of subdivision (b)
of the PRA and have it protect records generated by an agency
before litigation actually commences. We decline to do so.
As shown in the text, the term "pending litigation," like
"pending action," is a term of art and refers to a suit or other
action which has already commenced but is not yet decided; in other
words, an action or suit is pending from its inception until the
rendition of final judgment. The inception of an action follows
the filing of the first paper that commences it. The Legislature
has not defined the term "pending litigation" otherwise for
purposes of the PRA. The fact that it has done so elsewhere to
accord confidentiality for agency actions that occur at a time
before litigation actually commences does not mean that it meant to
do so here. (Cf. Safer v. Superior Court (1975) 15 Cal. 3d 230,
238; Board of Trustees v. Judge (1975) 50 Cal. App. 3d 920, 927.) In
fact, as mentioned in the text, the legislative history of
subdivision (b) indicates that at least that subdivision was not
meant to grant an agency the right to withhold information because
of anticipated litigation. (Final Report, op. cit. supra, at 9.)
The records of course may be exempt from disclosure by reason of
another provision of law.
10. 87-304
relevant in it. If a record was a public record and not otherwise
exempt from disclosure before litigation commences, the fact that
litigation does commence would not change the public nature of the
record so as to exempt it from disclosure. Specifically, the
subdivision would not exempt from disclosure such records of an
agency that antedate the filing of a claim under the Tort Claims
Act.
We therefore conclude that records generated in the
ordinary course of a public agency's business which might perchance
pertain to future litigation are not exempt from disclosure by
reason of subdivision (b) of section 6254 before the "litigation"
actually commences, as when a claim or complaint is filed against
the agency, nor do they become exempt from disclosure under the
subdivision after that time, even though they might be relevant in
the action.
3. Police Records Which Must Be Disclosed
Under Section 6254, Subdivision (f)
Next we are asked whether police records which must be
disclosed under subdivision (f) of the PRA section 6254 are exempt
from disclosure under subdivision (b) if they come to pertain to
pending litigation. Subdivision (f) provides an exemption from PRA
disclosure for records of complaints to, or investigations
conducted by any state or local police agency, but it also requires
those law enforcement agencies to disclose the names and addresses
of persons involved in, or witnesses to "incidents," and to make
public certain information relating to (i) persons arrested by the
agency and (ii) complaints or requests for assistance they have
received. Specific inquiry is made as to whether the filing of an
action against an agency, such as a wrongful death action, creates
an exemption from public disclosure of such previously existing
records as arrest records, police investigatory records, police
reports, incident reports and complaint reports. In other words,
when such records come to relate to "pending litigation" to which
a public agency is a party, is the mandate for disclosure contained
in subdivision (f) superseded by the exemption offered by
subdivision (b)? We conclude that it is not.
It is important to keep in mind that the exemptions from
disclosure that are set forth in section 6254 operate with
independent force; no single exemption from public disclosure under
the PRA controls any other, and each is independently examined to
determine its applicability. (Cf. 71 Ops.Cal.Atty.Gen. 5, 8,
supra; Berkeley Police Assn. v. City of Berkeley, supra, 76
Cal. App. 3d 931, 941; Cook v. Craig, supra, 55 Cal. App. 3d 773, 782­
784; Black Panther Party v. Kehoe, supra, 42 Cal. App. 3d 645, 652­
656.) Thus, theoretically, if a record which otherwise has to be
disclosed under subdivision (f) happens to "pertain to pending
litigation" to which the local law enforcement agency or its public
entity is a party, i.e., if it actually was generated in connection
11. 87-304
with an action which has commenced the agency, the record would not
have to be disclosed because it would receive exemption from
disclosure under subdivision (b) of section 6254.6 However, we do
not believe that scenario inherent in the question presented, for
it contemplates pre-existing police records and not records that
have been generated for particular litigation after it commences.
What we have are certain law enforcement records that
have already been prepared in the normal course of a law
enforcement agency's business, and in subdivision (f) the
legislature has mandated that they be disclosed to the public. The
records are thus created and maintained with that potential
publicity in mind. In our discussion of the meaning of the phrase
"records pertaining to pending litigation" we have seen how the
nature of a record for determining its exempt status is determined
at the time of its creation, and how its nature does not change
upon the happenstance of subsequent litigation. There is no reason
to treat records which are declared to be public under subdivision
(f) any differently. If they were records available to the public
before particular litigation commences, the commencement of the
litigation would not convert them to disclosure-exempt records
under subdivision (b).
Accordingly we conclude that the filing of an action
against an agency does not clothe its previously existing records
which had to be disclosed under subdivision (f) with an exemption
from disclosure under subdivision (b).
4. The Claim Itself
Subdivision (b) of section 6254 not only protects records
"pertaining to pending litigation to which the public agency is a
party" but also records pertaining to "claims made pursuant to
6
It would also seem patent from the structure of subdivision
(f) itself that it is meant to be self-contained, and that the
mandated disclosures that it contains are only meant to apply to
the exemption from PRA disclosure that it itself provides. The
first disclosure it requires (relating to "incidents") is stated as
an exception to the subdivision's general exemption from disclosure
which proceeds it (cf. People v. Corey (1978) 21 Cal. 3d 738, 742;
Addison v. Dept. of Motor Vehicles (1977) 69 Cal. App. 3d 486, 496;
Becker v. State Farm Mut. Auto Ins. Co. (1975) 52 Cal. App. 3d 282,
286), and the second disclosure it requires (relating to arrestees
and complaints) is preceded by the words "other provisions of this
subdivision notwithstanding." Thus assuming that a record does
come within subdivision (f)'s mandated disclosure and is not exempt
from that subdivision's general exemption, it would not mean that
other exemptions contained in the PRA would not apply to it.
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Division 3.6 . . . of Title 1 of the Government Code." (Cf. fn. 4,
ante.) That is California's Tort Claims Act.
Generally speaking, the Tort Claims Act requires the
presentation of a claim to a public entity for money or damages as
a prerequisite to bringing a lawsuit against it. (Gov. Code, §§
905, 905.2, 910, 945.4.) The primary function that serves is to
apprise the governmental body of the possibility of imminent legal
action so that it may investigate and evaluate the claim and, where
appropriate, avoid litigation by settling meritorious claims.
(City of San Jose v. Superior Court , supra, 12 Cal. 3d 447, 455;
C.A. Magistretti Co. v. Merced Irrigation Dist. (1972) 27
Cal. App. 3d 270, 276; Jenkins v. Contra Costa County (1985) 167
Cal. App. 3d 152, 157.)
The claims process commences with the presentation of a
claim by the claimant or by a person acting on his behalf. (Gov.
Code, § 910; cf. §§ 905, 911.2.) That document would be a "public
record" because it is a "writing containing information relating to
the conduct of the public's business . . . retained by [a] . . .
local agency." (§ 6252, subd. (d); cf. Register Div. of Freedom
Newspapers, Inc. v. County of Orange, supra, 158 Cal. App. 3d 893,
901; San Gabriel Tribune v. Superior Court, supra, 143 Cal. App. 3d
762, 774-775.) The claim document is also one which relates to the
Tort Claims Act's processes and as we have seen, one which helps
set a chronological boundary to establish when the exemption of
subdivision (b) applies, before which some other exemption must be
considered to avoid disclosure of agency documents. (Fn. 4, ante.)
However, the problem with according the claim document itself
protection from PRA disclosure under subdivision (b) is that it
does not meet the criterion of the subdivision as we have
understood it.
We have interpreted the "pertaining to" phraseology of
subdivision (b) to protect documents that are generated as a result
of an action being commenced. Particularly, in answering the first
question, we interpreted the phrase "records pertaining to pending
litigation" as offering protection to records generated in
connection with particular litigation after it has commenced with
the filing of the first paper to initiate it. (Cf. fn. 5, ante.)
In other words, we perceived the subdivision to protect documents
which are created as a result of the initiation of litigation and
which are specifically designed to meet it. We specifically
rejected the suggestion that the protection should extend to other
records just because they might relate to the litigation.
There is no reason to treat documents involved in the
claims process any differently from documents involved in other
types of "litigation." We believe the Legislature deliberately
included coverage of records pertaining to claims made pursuant to
the Tort Claims Act in subdivision (b) to ensure that they would be
covered by it, however broadly the term "litigation" might be
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defined. (Cf. Final Report, op. cit. supra, at 9.) But for the
purposes of the subdivision, the documents involved in the process
would be treated the same as those involved in other "litigation."
Indeed, as the legislative history of subdivision (b) indicates:
"Any agency cannot be required to release
information that pertains to litigation involving that
agency. . . . [¶] The same principle applies to claims
made by individuals against public entities and public
employees." ( Final Report, op. cit. supra, at 9;
emphasis added.)
When a claim document is filed against an agency, it is the claim
which generates the action; the action does not generate the claim,
and it therefore would not be covered by subdivision (b) as a
record "pertaining to . . . claims made pursuant to [the Tort
Claims Act]."
In Register Div. of Freedom Newspapers, Inc. v. County of
Orange, supra, 158 Cal. App. 3d 893, request was made under the PRA
for certain documents regarding a secret settlement agreement
reached between a public agency and a tort claimant ( id. at 897)
and question arose whether the claimant's medical records, which
were appended to a letter sent by him to the county requesting
settlement of his claim, were exempt from disclosure under
subdivision (c) of section 6254. ( Id. at 899, 902.) The court
held they were not because, inter alia, they had been voluntarily
submitted by the claimant to further his private interest and "not
to accomplish any governmental purpose or goal." ( Id. at 902.)
Thus, the court said, the agency could not hide behind the
claimant's 'privacy' claim to justify its concealment of the
records from public scrutiny. (Ibid., citing San Gabriel Tribune
v. Superior Court, supra, 143 Cal. App. 3d 762, 778.)
In the case, the county also resisted disclosing the
settlement agreement itself, under section 6255 of the PRA,
claiming that the public interest served by not making the record
public clearly outweigh[ed] the public interest served by
disclosure of the record. (158 Cal.App.3d at 909.) It claimed
that it was in the public interest to keep secret its settlement
policy and decisions, for if known to the public it would result in
frivolous tort claims, and it further argued that public scrutiny
of the county's settlement procedures would have an adverse impact
upon its economic ability to maintain itself as a tort defendant.
(Ibid.) The court disagreed:
"Against this interest must be measured 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. We
find these considerations clearly outweigh any public
interest served by conducting settlement of tort claims
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in secret, especially in light of the policies of
disclosure and openness in governmental affairs fostered
by both the CPRA and Brown Act. [O]pening up the
County's settlement process to public scrutiny . . . will
strengthen public confidence in the ability of
governmental entities to efficiently administer the
public purse." (158 Cal.App.3d at 909; fn. omitted.)
(See also San Gabriel Tribune v. Superior Court, supra, 143
Cal.App.3d at 780.)
Although the exemption provided by subdivision (b) of
section 6254 was not at issue in the Freedom Newspapers, Inc. case,
we find the thrust of its reasoning applicable herein. If a public
agency can neither "hide behind" a tort claimant's "privacy claim"
under subdivision (c) to justify its not disclosing medical records
submitted in connection with a claim under the Tort Claims Act, nor
justify its not disclosing a settlement of a claim on the basis of
section 6255, can less be said of a justification not to disclose
the claim itself by reason of subdivision (b)?
We therefore conclude that a claim document filed with a
public agency under California's Tort Claims Act is not exempt from
PRA disclosure under subdivision (b) of section 6254.
* * * * *
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