Court of Appeal, Fourth District, Division 1, California.
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County, Respondent; The Copley Press, Real Party in Interest.

No. D029634.

-- April 13, 1998

 Stutz, Gallagher, Artiano, Shinoff & Holtz, Daniel R. Shinoff and Jack M. Sleeth, Jr., San Diego,
for Petitioner.No appearance for Respondent.Gray, Cary, Ware & Friedenrich, Guylyn R.
Cummins, San Diego, for Real Party in Interest.Thomas W. Newton, James E. Grossberg,
Washington, DC, and Anne H. Egerton, Burbank, as Amici Curiae on behalf of Real Party in


We decide here whether a claim form submitted by a minor to a public school district under the
California Tort Claims Act (hereafter the Claims Act) (Gov.Code,1 § 910 et seq.), is protected
against disclosure under (1) certain exemptions in the Public Records Act (§§ 6254, subd. (b) or
6255), or (2) the Family Educational Rights and Privacy Act (hereafter FERPA) (20 U.S.C. §
1232g) and/or Education Code section 49060.   We conclude these provisions of law do not
protect the information from disclosure.


As part of a hazing incident at a high school in the Poway Unified School District (District) in
March 1997, three 16-year-old sophomores brutally  sodomized a 15-year-old freshman student
with a broomstick.   After the perpetrators pleaded guilty, they were sentenced in juvenile
court.   In proceedings attended by the media, the victim's identity was disclosed.

The media provided wide coverage of the sentencing court's comments excoriating the District
for tolerating a climate of abusive initiation practices.   In addition, the parents of the
perpetrators agreed to the public release of confidential juvenile court records and files
concerning prior hazing incidents to publicize the history of hazing at the high school.   However,
in accordance with its own policy, the Union-Tribune, a San Diego newspaper, did not publicize
the name of the victim or the perpetrators.

One of the perpetrators then submitted a Claims Act claim against the District.   The claim
apparently included a description of prurient details about the attack.   There were also claims
submitted by other students, based on different hazing incidents at the same high school.

The victim did not submit a formal Claims Act claim to the District.   However, the victim's attorney
sent a letter in May 1997, urging settlement of the victim's potential claim, and raising the issue of

“Because I am keenly aware of your duties as trustees for the children and residents of your
community I believe that you will want to deal with your district's liability to [the victim] in a
professional and, if possible, a confidential way.”

The victim and the District did settle, in part to protect the privacy of the victim, and the superior
court ordered the settlement sealed.   Nonetheless, in September 1997, the victim's attorney and
the District participated in a press conference to announce the fact of settlement.

Meanwhile, in July and August 1997, the Union-Tribune sought access “to any and all [Claims
Act] claims filed with the District between March 20, 1997 through July 18, 1997” under the Public
Records Act. However, the District refused to provide unresolved claims, citing the “open claims”
exemption to the Public Records Act and its own concern about protecting the privacy of the
minor victim of the assault.  (§ 6254, subd. (b).)  The Copley Press Inc. (Copley), publisher of
the Union-Tribune, thereupon filed a petition for writ of mandate in the trial court, contending
these reasons for nondisclosure did not apply.

The trial court granted the writ;  ordered the District to produce records with names, addresses
and telephone numbers of the minors redacted;  and denied the request for stay.   It also
awarded attorney fees and costs to Copley pursuant to section 6259.   The District has
produced redacted records in compliance with the order.

 The District filed this petition, asking for published guidance concerning its duties on an issue
likely to recur.2  Other media representatives joined Copley's opposition as amici curiae, and the
County of San Diego expressed its particular interest in clarification of the issue under FERPA
(20 U.S.C. § 1232g), and/or Education Code section 49060.


The Public Records Act specifies that any public record in the possession of a state or local
agency must be disclosed to any citizen unless an exemption applies.  (§ 6253.)   It enumerates
specific exemptions, and also provides a catchall withholding clause, allowing nondisclosure of a
record if the government can demonstrate that public policy necessitates nondisclosure.   (§§
6254, subd. (b), 6255.)

 “Public records” is defined in broad terms, to include:

“[A]ny 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.”  (§ 6252, subd. (d).)

This broad definition is designed to protect the public's need to be informed regarding the
actions of government, as expressed both in the Public Records Act and in the open meeting
requirements of the Ralph M. Brown Act (§ 54950 et seq.).  (Barber, The California Public
Records Act:  The Public's Right of Access to Governmental Information (1976) 7 Pacific L.J. 105,
110-111.)   Indeed, secrecy is “antithetical to a democratic system of ‘government of the people,
by the people [and] for the people.’ ”  (San Gabriel Tribune v. Superior Court (1983) 143 Cal.
App.3d 762, 771-772, 192 Cal.Rptr. 415.)

 Balanced against the public's right to know is the victim's right to privacy.  (See Welf. & Inst.
Code, § 676, subd. (b) [barring the public from juvenile court hearings, even on serious crimes,
upon request of the victim];  Pen.Code, § 293.5 [analogous protections in criminal proceedings];  
§ 6254, subd. (f)(2) [allowing a state or local agency compiling law enforcement records to
withhold the name of a minor victim of enumerated crimes at the request of his parent];  and §
54961, subd. (b) [Brown Act exception to disclosure requirements in sex crime cases].)  People
v. Ramirez (1997) 55 Cal.App.4th 47, 64 Cal.Rptr.2d 9, eloquently articulated the privacy
concern for these types of crimes:

“There can be little dispute that the state's interest in protecting the privacy of sex offense victims
is extremely strong and fully justified.  ‘No  crime is more horribly invasive or more brutally
intimate than rape.’  [Citation.]”  (Id. at p. 53, 64 Cal.Rptr.2d 9.)

“ ‘Privacy’ is not an insignificant interest -- it is described in our state Constitution as one of our
‘inalienable rights.’  (Cal. Const., art.   I, § 1.) In the context of the victim of a sex offense, our
Legislature ․ has likewise determined that the privacy interest of such a victim is significant․  [M]
any victims are reluctant to report sex offenses ‘because of fear they will be publicly identified
and humiliated.’  [Citation.]”  (Id. at p. 56, 64 Cal.Rptr.2d 9.)

In this context, we discuss the various bases for withholding the claims presented here.


Section 6254, subdivision (b) provides:

“[N]othing in this chapter shall be construed to require disclosure of records that are any of the

“(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.”

 To initiate litigation against a public entity, it is well-established that a plaintiff must first file a
claim under the Claims Act. (§§ 945.4, 912.4;  Munoz v. State of California (1995) 33 Cal.App.4th
1767, 1776, 39 Cal.Rptr.2d 860.)  Section 910 specifies the information to be included, some of
which may implicate privacy concerns.   Many public entities provide forms for this purpose.  
(Weil & Brown, Civil Procedure Before Trial (Rutter 1997) ¶ 1:681, pp. 1-144, rev. #1, 1996.)

There are no California cases deciding whether the exemption of section 6254, subdivision (b)
encompasses the actual claim form itself.   Although the Public Records Act is modeled on the
federal Freedom of Information Act (5 U.S.C. § 552), the federal statute contains no comparable
provision for guidance in interpreting the California statute.  (Schaffer, A Look at the California
Records Act and its Exemptions (1974) 4 Golden Gate L.Rev. 203, 216.)

 There is a 1988 opinion by the California Attorney General, which concludes the exemption
does not encompass the Claims Act claim form  itself.  (71 Ops.Cal.Atty.Gen. 235, 238 (1988).)  
The Attorney General reasoned the word “pertain” means “to relate, to belong, to be pertinent to
something else,” and the claim form itself was that “something else” not encompassed in the

However, the language of section 6254, subdivision (b) is also susceptible to a different
interpretation, advocated by the District, reflecting the common parlance usage of “claim” as a
set of facts giving rise to obligations.  (See DeCastro West Chodorow & Burns, Inc. v. Superior
Court (1996) 47 Cal.App.4th 410, 421, 54 Cal.Rptr.2d 792.)   In this sense, the claim form itself
“pertains to” the underlying operative facts.   Under this interpretation, the language of the
exemption would include the claim form.

 Based on the existence of more than one reasonable interpretation of the statute, it seems to
us that the language of the statute, “pertaining ․ to claims,” is ambiguous.   When an
examination of the plain meaning of the pertinent terms of a statute fails to resolve a dispute, we
next consider the context in which the words appear, and attempt to harmonize the words of the
statute within the overall statutory scheme.  (People v. Valladoli (1996) 13 Cal.4th 590, 599, 54
Cal.Rptr.2d 695, 918 P.2d 999.)

 Here, harmonization supports the conclusion that Claims Act claim forms are not exempt from
disclosure pursuant to section 6254, subdivision (b).  A related statute, part of the Brown Act,
expressly acknowledges the availability of the Claims Act claims themselves for public inspection,
referencing the Public Records Act. (§ 54956.9, subd. (b)(3)(C).) 3

 The principle of striving for harmony between disparate parts applies even though the two
provisions are in separate codes.  (O'Brien v. Dudenhoeffer (1993) 16 Cal.App.4th 327, 332, 19
Cal.Rptr.2d 826.)   Under the  extrinsic interpretive principle of in pari materia, two statutes
touching upon a common subject are to be construed in reference to each other, so as to
“harmonize the two in such a way that no part of either becomes surplusage.”  (DeVita v. County
of Napa (1995) 9 Cal.4th 763, 778, 38 Cal.Rptr.2d 699, 889 P.2d 1019, quoting Mar v. Sakti
Internat. Corp. (1992) 9 Cal.App.4th 1780, 1784, 12 Cal.Rptr.2d 388.)

The District contends these Brown Act provisions have no bearing on this case, because they
apply only upon distribution of a Claims Act claim to the members of a legislative body of a local
agency, in a closed session;  and the mere act of distributing the claim at a closed meeting
effects a waiver of the exemption from disclosure.   We find this distinction untenable, because
section 54956.9 simply announces the preexisting status of the Claims Act claim itself as a
disclosable public record.   It is merely a matter of convenience to have the claim available to the
public at the time of the meeting.

That section 6254, subdivision (b) does not exempt Claims Act claim forms is further bolstered by
an examination of both the legislative history of the statute and the wider historical circumstances
of its enactment in ascertaining legislative intent.  (People v. Valladoli, supra, 13 Cal.4th at p.
602, 54 Cal.Rptr.2d 695, 918 P.2d 999.)   The March 1970, Final Report of the California
Assembly Statewide Information Policy Committee, at page 9, offered this explanation for its
proposed version of the statute, a version adopted by the legislature without significant

“Records relating to [litigation and claims] are available after adjudication or settlement.   This
section, in effect, upholds the attorney-client privilege.   Subsections (f) and (k) also contribute
to the strength of that privilege.”

The reference to the attorney-client privilege demonstrates an intent to protect only documents
created by the public entity.

As explained in Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 20 Cal.Rptr.2d 330, 853 P.2d

“Subdivision (b) [of section 6254] ‘ ․ was primarily designed to prevent a litigant opposing the
government from using the [Public] Records Act's disclosure provisions to accomplish earlier or
greater access to records pertaining to pending litigation or tort claims than would otherwise be
allowed under the rules of discovery․’ ”  (Id. at p. 372, 20 Cal.Rptr.2d 330, 853 P.2d 496, quoting
The California Public Records Act:  The  Public's Right of Access to Governmental Information
(1976) 7 Pacific L.J. 105, 131, fns. omitted;  accord, City of Los Angeles v. Superior Court (1996)
41 Cal.App.4th 1083, 1087, 49 Cal.Rptr.2d 35.)

There is no unfair disadvantage to the public entity from disclosure of the mere claim form.  
Thus, a Claims Act form itself does not fall within the exemption of section 6254, subdivision (b).


Section 6255 offers a catchall exemption from disclosure:

“The agency shall justify withholding any record by demonstrating that the record in question is
exempt under express provisions of this chapter or that on the facts of the particular case the
public interest served by not making the record public clearly outweighs the public interest
served by disclosure of the record.”

 Minors, as well as adults, possess a constitutional right of privacy under the California
Constitution.  (American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 334, 66 Cal.
Rptr.2d 210, 940 P.2d 797.)   Proof of an invasion requires not only a legally protected privacy
interest, but also a reasonable expectation of privacy in the circumstances, and conduct by the
defendant constituting a serious invasion of privacy.  (Id. at p. 330, 66 Cal.Rptr.2d 210, 940 P.2d
797;  Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 40, 26 Cal.Rptr.2d 834, 865 P.
2d 633.)   Under the facts presented here, the second and third elements of a privacy claim are

 First, there has been no showing of any reasonable expectation of privacy under the
circumstances.   While section 910 does require a claimant to provide some potentially private
information, generally, one who submits a tort claim has no reasonable expectation of privacy.  
(Register Div. of Freedom Newspapers, Inc. v. County of Orange (1984) 158 Cal.App.3d 893,
902, 205 Cal.Rptr. 92.)

Here in particular, the victim's request for confidentiality was equivocal in its phrasing, asking only
for confidentiality “if possible.”   The request was also circumstantially equivocal, in that the
victim's attorney participated in a press conference about the settlement.   And there is no
evidence here that the victim exercised his options for pursuing confidentiality under Welfare and
Institutions Code section 676, subdivision (b), or argued for the applicability of rights under Penal
Code section 293.5.

 Nor has the District established conduct by the Union-Tribune evincing a serious invasion of
privacy.   The newspaper has a policy of protecting the  identity of victims of sex crimes and
juvenile offenders.   The information is relevant to a legitimate and important competing public
interest in ending school hazing practices potentially endangering many children.   The
importance of public scrutiny of proceedings involving serious juvenile crimes is recognized in
Welfare and Institutions Code section 676, which allows members of the public to attend hearings
involving serious crimes such as rape, sodomy or assault.   Importantly, the District has the
power to address privacy concerns by redacting released materials, under the supervision of the
trial court, as was ultimately done here.  (U.D. Registry, Inc. v. State of California (1995) 34 Cal.
App.4th 107, 115, 40 Cal.Rptr.2d 228.)

Under these facts, the public interest served by withholding the claims does not clearly outweigh
the public interest served by disclosure of the record.   (§ 6255.)   As such, the District has
failed to justify withholding any record under this exemption.


 The apparent purpose of FERPA is to ensure access to educational records for students and
parents and to protect the privacy of such records from the public at large.  (Bauer v. Kincaid (W.
D.Mo.1991) 759 F.Supp. 575, 590-591.)   FERPA conditions federal educational funding on
maintaining the privacy of “education records other than directory information․”  (20 U.S.C. §
1232g, subd. (b)(2).)   Education records consist of “those records, files, documents, and other
materials which (i) contain information directly related to a student;  and (ii) are maintained by an
educational agency or institution or by a person acting for such agency or institution.”  (20 U.S.
C. § 1232g(a)(4)(A).)

 Section 49060 of the Education Code was enacted to ensure receipt of federal funding by
manifesting compliance with FERPA.   To that end, its provisions expressly prevail over the
Public Records Act, as pertains to pupil records.   Like FERPA, Education Code section 49061,
subdivision (b) broadly defines pupil records 4 and prohibits release of any “pupil record” except
as specified in Education Code section 49073 et seq.   Under these provisions, if the Claims Act
claims are “pupil records,” the Union-Tribune  would have access to them only with written
parental consent or under judicial order.  (Ed.Code, § 49076.)

 It defies logic and common sense to suggest that a Claims Act claim, even if presented on
behalf of a student, is an “educational record” or “pupil record” within the purview of these
exemptions.   Just because a litigant has chosen to sue a school does not transmogrify the
Claims Act claim into such a record.   We therefore conclude the release of such a claim
implicates neither FERPA nor its California counterpart.


The District's petition to vacate the trial court's order granting the petition for writ of mandate is
denied.   Copley is awarded attorney fees and costs.  (See § 6259, subd. (d).)


1.  FN1. All statutory references are to the Government Code unless otherwise specified.

2.   “ ‘If an action involves a matter of continuing public interest and the issue is likely to recur, a
court may exercise an inherent discretion to resolve that issue, even though an event occurring
during its pendency would normally render the matter moot.’ ”  (Morehart v. County of Santa
Barbara (1994) 7 Cal.4th 725, 746-747, 29 Cal.Rptr.2d 804, 872 P.2d 143, quoting Liberty Mut.
Ins. Co.v. Fales (1973) 8 Cal.3d 712, 715-716, 106 Cal.Rptr. 21, 505 P.2d 213.)

3.   Section 54956.9, sets forth six circumstances where “existing facts and circumstances”
suggestive of “significant exposure to litigation” allow a closed session to be held by the
legislative body of a local agency, and provides that one of the six circumstances is:“(b)(1)(C) 
The receipt of a claim pursuant to the Tort Claims Act or some other written communication from
a potential plaintiff threatening litigation, which claim or communication shall be available for
public inspection pursuant to Section 54957.5.”  (Italics added.)Section 54957.5. in turn
provides:“(a) Notwithstanding Section 6255 or any other provisions of law, agendas of public
meetings and any other writings, when distributed to all, or a majority of all, of the members of a
legislative body of a local agency by any person in connection with a matter subject to discussion
or consideration at a public meeting of the body, are disclosable public records under the
California Public Records Act, ․ and shall be made available upon request without delay.  
However, this section shall not include any writing exempt from public disclosure under Section
6253.5, 6254, or 6254.7.“(b) Writings which are public records under subdivision (a) and which
are distributed during a public meeting shall be made available for public inspection at the
meeting if prepared by the local agency or a member of its legislative body, or after the meeting if
prepared by some other person.“․“(d) This section shall not be construed to limit or delay the
public's right to inspect any record required to be disclosed under the requirements of the
California Public Records Act․”

4.   Education Code section 49061, subdivision (b) provides in part:“ ‘Pupil record’ means any
item of information directly related to an identifiable pupil, other than directory information, which
is maintained by a school district or required to be maintained by an employee in the
performance of his duties whether recorded by handwriting, print, tapes, film, microfilm or other
means.“ ‘Pupil record’ shall not include informal notes related to a pupil compiled by a school
officer or employee which remain in the sole possession of the maker and are not accessible or
revealed to any other person except a substitute.”

McINTYRE, Associate Justice.

WORK, Acting P.J., and NARES, J., concur.
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