Attorney-Client Privilege is Waived by Mistaken Disclosure of Privileged Documents in Response to Public Records Request
by Derek P. Cole on December 15, 2014
Be careful not to disclose privileged documents in response to a Public Records Act (“PRA”) request. According to a recent court decision, such disclosures waive any applicable privilege—even if the disclosure is mistaken.
The Court’s Ruling
In Ardon v. City of Los Angeles, the Second District Court of Appeals considered whether a city could compel the return of three documents that had been inadvertently disclosed in response to a PRA request. The requesting party was an attorney who was representing a private party in a lawsuit against the city concerning a city utility tax. The attorney realized the documents from the PRA request were privileged based on comparing them to document descriptions from a privilege log she had earlier received in the litigation. Although the attorney advised the city of its inadvertent disclosures, she declined the city’s request to return the documents, asserting the city had waived any privileges attached to them.
Result Mandated by PRA’s Language
Critical to the court’s reasoning was a section of the PRA statute that deals with waiver of exemptions under the Act. Specifically, Government Code section 6254.5 states that whenever an agency “discloses a public record which is otherwise exempt from this chapter,” that disclosure “shall constitute a waiver of the exemptions.” In interpreting this section, the court noted that the PRA incorporates the attorney-client privilege as a basis for exemption through another section of the Act. But applying section 6254.5’s plain language, the court held that when an agency does not invoke that exemption, the privilege is waived.
Mistake is Not a Defense
There was no dispute in Ardon that the city’s disclosure of the privileged documents was mistaken. But that did not make a difference. The court observed that statutes and precedents governing civil litigation—which provide for the return of privileged documents that are inadvertently disclosed—are not applicable to the interpretation of the PRA. Rather, because Government Code section 6254.5 makes clear that disclosure of documents waives any privilege that may attach to a document—and because there was no evidence the Legislature intended a contrary result—the court declined to excuse the city’s waiver on the ground of inadvertence.
How Should Agencies Respond?
Because mistake is not a defense, Ardon counsels for agencies to more closely scrutinize their PRA responses to ensure privileged documents are not inadvertently produced. Obviously, this is easier said than done. Often, the time necessary to respond to PRA requests can be overly consuming, especially for smaller agencies with limited staffs. Requiring that even greater time be devoted to responding to PRA requests—and thus away from other important responsibilities—may not be viewed by many agencies as an ideal solution. But this disadvantage must be weighed against the competing disadvantage of losing privileged protections over documents that may be damaging to an agency’s position in litigation.
At a minimum, agencies should involve their general counsels in responding to PRA requests. Many agencies are already in the habit of doing this. Agencies that do not do so should put in place procedures to ensure their general counsels can better screen requests for potential privilege issues. Agency counsels are in the best position to identify whether requests may involve documents that would be relevant in litigation the agency is handling or defending. Larger agencies that employee risk managers to oversee litigation should also consider having those individuals screen PRA requests for potential privilege issues.← Back to Posts