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Since I wrote this post on Monday detailing how the Mayor’s Office had refused to release an e-mail central to a lawsuit against the city of San Diego, I’ve received a number of calls and e-mails from attorneys challenging the mayor’s reason for not disclosing the document.
The e-mail from mayoral spokesman Fred Sainz to the local newspaper’s editorial writer, Bob Kittle, is referenced in a wrongful termination suit filed this month against the city. In the suit, former Chief Operating Officer Rick Reynolds claims he was terminated for reporting Sainz for alleged inappropriate behavior. Reynolds claims that he had brought to the attention of his superior an e-mail from Sainz to Kittle that had been flagged by the city’s computer system for inappropriate language.
The suit says it was one of two incidents that resulted in Reynolds’ termination; Sainz said the incidents had nothing to with his firing — it had been planned for a while.
I requested a copy of the e-mail under the California Public Records Act after receiving the lawsuit.
On Monday, the Mayor’s Office informed me that it wouldn’t be releasing the e-mail, citing the ongoing litigation. (The letter from the Mayor’s Office didn’t cite specific law, but it is assumed it is referring to the Public Records Act’s pending litigation exemption, which allows public agencies to withhold certain documents that are part of a lawsuit.)
However, the lawyers that contacted me said that the pending litigation exemption under the Public Records Act wouldn’t exempt this e-mail from being released. They argued that a recent court ruling determined that this exemption is solely for documents that were prepared in response to, or anticipation of, litigation.
The purpose of this exemption, then, would be to prevent the disclosure of documents that could give one side an advantage in a lawsuit by being able to see their opponents’ preparation.
The attorneys that contacted me said the exemption doesn’t cover public documents that are referenced in litigation.
So, to rehash: If the e-mail would’ve otherwise been available as a public record before the lawsuit, it should be available now, they said. The only documents that would be covered in the exemption would be ones that were created as part of the city’s defense of this lawsuit, the attorneys argued.
After receiving the rejection from the Mayor’s Office on Monday, I challenged its interpretation of the exemption on the same grounds. Policy Director Julie Dubick has said she will respond to me today.