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THE KIRK LAW FIRM San Joaquin County Environmental Health Division Attention: Tami December 13, 2001 Page 2 Except as provided in Sections 6254.7 and 6254.13, nothing in this chapter shall be construed to require disclosure of records that are any of the following: (b) 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), until the pending litigation or claim has been finally adjudicated or otherwise settled. [Emphasis Supplied] The litigation exemption only applies to documents prepared or acquired by the agency in the course of litigating, i.e. materials generated by the litigation process itself. The exemption does not apply to records, however relevant, that were created (1) in the ordinary course of the agency's business' or (2) for other purposes prior to the litigation. 71 Ops. Cal. Atty. Gen. 235. In describing the scope of the litigation exemption, the California Attorney General opined as follows: 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. ...the protection of subdivision (b) would not extend to records that antedate the commencement of the litigation or the filing of a claim. ... . 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. ... 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 relevant in it. If a record was a public record and 1 Under the litigation exemption,a document is protected from disclosure only if it was specifically prepared for use in litigation or where the dominant purpose behind preparation of document was use in litigation. City of Hemet v. Superior Court(1995)37 CA4th 1411;Fairleyv_Superior Court(1998)66 CA4th 1414;County of Los Angeles v. Superior Court(2000)82 CA4th 819,830;71 Ops. Cal.Atty. Gen.235.