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(3) What Constitutes “Existing Facts and Circumstances.” The Act
defines the key phrase “existing facts and circumstances” in terms
of five exclusive situations that can justify an opinion that there is
significant exposure to litigation. The five situations are:

• Facts and circumstances that might result in litigation against
the agency but which the agency believes are not yet known to
a potential plaintiff or plaintiffs, which facts and circumstances
need not be disclosed.

• Facts and circumstances, including, but not limited to, an
accident, disaster, incident, or transaction occurrence that
might result in litigation against the agency and that are known
to a potential plaintiff, or plaintiffs, which facts or
circumstances shall be publicly stated on the agenda or
announced.

• 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 Government Code
section 54957.5. In addition to including appropriate closed
session agenda language, the public entity may be required to
provide additional information on the agenda or in an oral
statement prior to the closed session under Government Code
section 54956.9, subdivisions (e)(2)-(3), (e)(5), and (g).

• A statement made by a person in an open and public meeting
threatening litigation made on a specific matter within the
responsibility of the legislative body.

• A statement threatening litigation made by a person outside an
open and public meeting made on a specific matter within the
responsibility of the local agency so long as the official or
employee of the legislative body receiving knowledge of the
threat makes a contemporaneous or other record of the
statement prior to the meeting which record shall be available
for public inspection pursuant to Government Code section
54957.5. The records so created need not identify the alleged
victim of unlawful or tortious sexual conduct, or anyone
making the threat on their behalf, or identify a public employee
who is the alleged perpetrator of any unlawful or tortious
conduct upon which a threat of litigation is based, unless the
identity of the person has been publicly disclosed.

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