Pending Litigation Exemption - a Document Protected from Disclosure
In of Hemet v. Superior Court (1995) 37 Cal. App. 4th 1411, 1416, a police sergeant for the city became concerned over drug use at the high school attended by his children.
He collected certain information, and eventually faxed to school officials a list of students he believed to be involved in the use and/or sale of drugs.
The faxed memorandum also reported that a deputy sheriff was aware of the drug use but did not prevent or disclose it because one of the students had a photograph of the deputy smoking marijuana and threatened to publicize it.
This action by the sergeant became the subject of some public interest when the memorandum, which had been intended for the sole use of a vice-principal, was circulated or shown to other persons.
The city eventually conducted an investigation of the incident. the deputy sheriff mentioned by name in the fax filed a tort claim with the city. (City of Hemet, supra, 37 Cal. App. 4th at p. 1416.)
After the investigation was completed, a newspaper filed a California's Public Records Act request with the city seeking the internal investigation report.
The city refused to disclose the records, and the newspaper filed a petition pursuant to section 6258.
The superior court found the records to be discoverable, subject only to redaction in the interests of the privacy of some of those concerned, and the city sought a writ of mandate which the Court of Appeal granted.
On appeal, the court accepted the newspaper's argument that a government agency "cannot take records which were not exempted in their genesis and transform them into exempt 'litigation' documents simply because they later become relevant to a lawsuit." (City of Hemet, supra, 37 Cal. App. 4th at p. 1418), and concluded that under the "pending litigation" exemption in section 6254, subdivision (b), a document is protected from disclosure only if it was specifically prepared for use in litigation. (City of Hemet, supra, at p. 1420.)