A&A: Can a letter be subject to the CPRA before it is given to the recipient?
August 25, 2010 by FAC
Filed under Asked & Answered
Q: Is an intent to sue letter drafted by a special district’s attorney subject to the CPRA prior to it being given to the recipient?
A: The kind of letter you describe might be exempt from disclosure under the PRA under a number of different exemptions.
- If it were kept confidential between the attorney and district while in draft form, it might be subject to the attorney-client privilege (which is incorporated into the PRA in Govt. Code Section 6254(k)).
- It might also be exempt under Section 6254(b) as a record “pertaining to pending litigation to which the public agency is a party … until the pending litigation or claim has been finally adjudicated or otherwise settled.”
- If it satisfied the other requirements of the section, it might also be exempt as “[p]reliminary drafts … that are not retained by the public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure.” Govt. Code Section 6254(a).
It is also possible that circumstances surrounding the letter could make it ineligible for these exemptions. In addition, even if the letter is exempt from disclosure under the PRA, in most scenarios the district should still have the discretion to disclose the letter if it chooses to.
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.
