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A&A: Is A Letter From A Water District Lawyer A City Attorney Public?

Q: The Municipal Water District had a contract to deliver water, but wanted to modify it. The District’s lawyer wrote a letter to the city attorney, attaching a draft civil complaint, asking for a set of changes, threatening to sue otherwise. “Settlement” meetings were in closed session. Now that a new contract has been agreed to, is the first letter a public record? How can we get it?

A: It seems that the letter from the attorney for the water district to the city attorney would be a public record subject to disclosure under California’ Public Records Act.  Under California’s Public Records Act (“CPRA”), public records —which 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,” Gov’t Code § 6252(e) — are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.  Given this letter is in the possession of two different agencies, you might consider requesting it from both through a written request (more on the PRA, including a sample request letter, can be found here:).  My hope would be that doing this will increase your chances of at least one agency giving you the letter without any pushback.

Of course, it is possible these agencies could claim the letter is exempt from disclosure under one or more exemptions.  It’s difficult to anticipate what an agency might try to claim before a request has actually been made, and in this case, I cannot think of any specific exemption that would apply.  For example, even though there’s a “pending litigation” exemption that applies to records prepared for use in litigation (Gov’t Code section 6254(b)), I cannot imagine this exemption would apply to this letter since it was sent from one agency to another before litigation was initiated, and is not the type of record that this particular exemption seeks to protect (basically, records created by the agency for use in the litigation).  Likewise, the letter is not attorney-client privileged, since it was sent from one agency to the other, and therefore would not be exempt under 6254(k).

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC 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.  No attorney-client relationship has been formed by way of this response.

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