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Litigation-related documents exempt from disclosure

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NEWS MEDIA UPDATE   ·   CALIFORNIA   ·   Freedom of Information   ·   Sep. 20, 2005

NEWS MEDIA UPDATE   ·   CALIFORNIA   ·   Freedom of Information   ·   Sep. 20, 2005

Litigation-related documents exempt from disclosure

  • Information related to pending litigation is exempt from public release, but deposition transcripts are not, an intermediate appellate court ruled last week.

Sep. 20, 2005  ·   State open records law keeps litigation documents not intended for public release shielded from parties outside the lawsuit, a state appeals court ruled last week.

Documents such as communication between attorneys and their clients as well as correspondence among attorneys are exempt from disclosure to non-parties under the California Public Records Act, the California Court of Appeal in San Diego ruled Sept. 14.

“In California, it will make it more difficult for newspapers and other journalists to cover public agencies when they’re engaged in litigation,” said lawyer Alonzo Wickers IV, who represented The San Diego Union-Tribune which had sought the information in the lawsuit. “That’s often when interest is at its greatest.”

The Union-Tribune requested documents related to a suit pending between San Diego State University and two of its employees. The former athletic department employees sued over circumstances related to a department audit and the newspaper asked for communications between the former employees and the university as well as deposition transcripts related to the cases.

When the university refused to release the records, the Union-Tribune‘s parent company, Copley Press Inc., sued for their release. The trial court granted the Union-Tribune‘s request over objections by the parties who argued that the material is confidential “work product.” But the court held that the parties to the lawsuit had not met their burden of showing that the information requested met the definition of work product, or that it had been created for use in the lawsuit.

The university appealed, arguing that the documents are exempt under the “pending litigation” exemption to the public records act. The appeals court agreed as to litigation-related documents, such as communication between attorneys and their clients, but ruled that deposition transcripts are not covered by the exemption because they are available to the public under another law. The court also noted the narrow scope of its holding, limiting it to cases where litigation-related documents are requested from a public entity under the public records act.

The court’s unanimous opinion, written by Judge Linda B. Quinn, pointed out that parties to a lawsuit could opt to make information available to non-parties. Wickers noted that it is not uncommon for a party to provide information to the press and that, as a lawyer, he never assumes correspondence he sends is confidential, citing examples of attorneys posting correspondence on their Web sites or Web logs. “To me, the notion that it’s confidential is completely baseless,” he said. “I do not think public agencies should get special privileges.”

California’s Public Records Act is broadly interpreted and its exemptions narrowly constructed, so as to limit the pending litigation exemption strictly to information prepared by an agency for its own use in a lawsuit when it has an interest in keeping that information private until the suit concludes. But despite the state’s presumption of access, Wickers said, the appellate court seemed to interpret this exception broadly, which he finds disappointing.

(Board of Trustees of the California State University v. Superior Court of San Diego County, Requester’s counsel: Alonzo Wickers IV, Davis, Wright Tremaine LLP, Los Angeles, Calif.)CZ

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