             TO BE PUBLISHED IN THE OFFICIAL REPORTS


                  OFFICE OF THE ATTORNEY GENERAL

                        State of California


                       JOHN K. VAN DE KAMP

                         Attorney General


          --------------------------------------------
                                :

                OPINION         :     No. 87-304

                                :

                  of            :     July 13, 1988

                                :

          JOHN K. VAN DE KAMP   :

            Attorney General    :

                                :

          RONALD M. WEISKOPF    :

       Deputy Attorney General :

                                :

----------------------------------------------------------------


          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.




                               12.                          87-304

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


                               14.                          87-304

     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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