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• 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.

In Fowler v. City of Lafayette (2020) 46 Cal.App.5th 360, the court held that the
contemporaneous record of a threat of litigation must be included in the agenda package.
Otherwise, the court surmised, the record is not available for public inspection as required. The
court expressed concern that without including the record as part of the agenda package, the
record becomes “illusory” because an interested person would not know what question to ask.
This ruling is of some concern because a written threat of litigation or contemporaneous record
are not always provided to the legislative body, with legal counsel often presenting a verbal
summary or identifying the threat in a confidential report. One way to avoid running afoul of
this requirement is to at a minimum identify the threat of litigation and the availability of the
record as part of the closed session agenda description. That way the record is no longer
“illusory.” Language has been added to Appendix 4, Closed Session Agenda Descriptions, as a
reminder of this requirement. Agency legal counsel should be consulted if there is any doubt
about this requirement.

Written communications that are privileged and not subject to disclosure pursuant
to the California Public Records Act need not be disclosed when describing “facts and
circumstances.”

(Government Code § 54956.9(f).)

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