New Public Records Case Holds that Mistaken Release of Privileged Documents Does Not Waive Privilege
by Derek P. Cole on August 10, 2015
When an agency mistakenly releases privileged documents in response to a Public Records Act (“PRA”) request, it does not waive the privilege it possesses in those documents. So ruled the San Francisco-Based First District Court of Appeal on July 31, 2015 in Newark Unified School District v. Superior Court. The court’s ruling contradicts the December 2014 holding of the Los-Angeles Based Second District Court of Appeal in Ardon v. City of Los Angeles. That court held that once privileged documents are released, agencies effectively waive any privilege attached to them, and cannot demand they be returned. (See our post about the Ardon case here.)
The rulings in Newark Unified and Ardon create what the legal community calls a “split in authority.” Fortunately, this split should be resolved soon as the Ardon case is now before the State Supreme Court. Together, Newark Unified and Ardon provide a preview of the competing positions the Court will consider.
Newark Unified’s Holding and Reasoning
In Newark Unified, an attorney representing two community organizations requested records pertaining to the resignation of a school superintendent. After producing records in response to this request, the District realized its response had mistakenly included privileged documents. When the requesting party declined the District’s request to return those documents, the District filed a lawsuit to compel their return.
As in Ardon, the central statute at issue was Government Code section 6245.5, which states that whenever an agency “discloses a public record which is otherwise exempt” under the PRA, “this disclosure shall constitute a waiver of the exemptions.” Ardon read the word “disclose” in this section to mean any release of public records, regardless of intent. In other words, whether a release was purposeful or mistaken, the released documents were still “disclosed.”
The Newark Unified Court saw things differently. It reached the opposite conclusion as Ardon for a number of reasons:
- The court found the word “disclose” arguably included an element of intent. For instance, if the district had mailed documents to the wrong address, could it really be said the district intended to “disclose” the documents to the incorrect recipient? Using this hypothetical, the court believed the word “disclose” was susceptible to competing interpretations.
- Because of the ambiguity in what “disclose” meant, the court explored section 6245.5’s legislative history. It found that the section was only intended to prevent the practice of selective disclosures—when agencies give documents to one group but not to others. The court found nothing in the legislative record to suggest that the Legislature also wished to include unintentional releases within the meaning of “disclosed” records.
- Finally, the court observed that section 6254.5 should be read in harmony with Evidence Code section 912, which governs when the attorney-client privilege is waived. Noting that section 912, which also refers to a “disclosure” of records, has been interpreted to require an intentional waiver, the court believed it best to read both statutes the same—especially since the Legislature was aware of how section 912 had been interpreted when it enacted section 6254.5.
So Who Wins?
It will be interesting to see whether the Supreme Court adopts the Ardon or Newark Unified view when it resolves how to interpret section 6254.5. In this author’s view, Newark Unified presents the more compelling interpretation. Surely the Legislature did not believe that agencies would never make a mistake in responding to public records requests. Thus, had the Legislature truly intended to enact such a draconian waiver rule, one would expect it would have said so more directly and that the legislative record for section 6254.5 would have been clearer about the subject.← Back to Posts