The California Supreme Court recently upheld and certified for publication a non-special education case that has important ramifications for special education across the state. For years, the special education litigation costs for districts have been a closely guarded secret. In fact, when I interned with a special education attorney representing districts some years ago. I was handed a document that listed costs per district and was expressly told to never release the information (which I will not) and told that districts never want the information to get out to the public.

Now though, everyone who is interested should be able to gain access to this information. In County of Los Angeles vs. Anderson-Barker, California’s Supreme Court has published that the main legal basis given by districts does not hold water and such information will have to be released if districts are presented with a proper request for the information. In the case, an attorney sought litigation cost expense in an on-going civil rights matter currently being heard in the courts.

Requests for information from state public agencies are covered under the California Public Records Act, (CPRA). This law was enacted in 1968 and modeled after the federal Freedom of Information Act (FOIA). The purpose of the CPRA is to increase “freedom of information by giving members of the public access to information in the possession of public agencies.” Like the FOIA, this law creates specific exemptions which public agencies can cite in order to avoid revealing information considered sensitive. When parents or attorneys request that districts and or Special Education Local Plan Agencies (SELPAs) turn over litigation expense information, district have blocked such requests using three specific exemptions from CPRA: 1) attorney-client privilege; 2) attorney work product doctrine; and 3) the pending litigation exemption.

In this decision, which focused on the pending litigation exemption, the court made quick work of the County’s arguments not to disclose the information. According to the court, under CPRA, the pending litigation exemption applies to documents prepared specifically for litigation. Billing statements and the like, while related to the litigation, are not covered because the information was not compiled for litigation but rather for billing purposes related to getting paid. The court stated, “this is true even though the requested records relate to pending litigation and, indeed, would not have existed but for the pending litigation.” Based on this decision, school district special education litigation costs will become more transparent, because districts have long used this same argument to block requests for litigation expense information.

For a more thorough explanation of the decision, read my Examiner.com article on the same issue.