In Public Records Case, State Supreme Court Holds Inadvertent Disclosure of Privileged Records Request Doesn’t Waive Privilege
by Derek P. Cole on March 28, 2016
As this Blog previously noted, the State Supreme Court had before it two cases in which inadvertent disclosures of attorney-client privileged records were made in response to requests under the California Public Records Act (“CPRA”). In both cases, the question was whether the mistaken releases waived the privileges. (Our previous updates about these cases are linked here and here.)
On March 17, the Court resolved a split in the appellate courts by ruling that mistaken disclosures do not waive the attorney-client privilege (or the related attorney “work-product” protection). In so ruling, the Court reversed the lower court’s decision in Ardon v. City of Los Angeles and effectively affirmed the decision in Newark Unified School District v. Superior Court.
When Are Privileged Records “Disclosed”?
Ardon and Newark involved situations in which attorneys representing parties in litigation against the agencies received privileged documents in response to public records requests they made for their clients. When the agencies demanded return of the privileged documents, the attorneys refused.
In both cases, the statute at issue was Government Code section 6254.5, which states that whenever an agency “discloses a public record which is otherwise exempt” under the CPRA, “this disclosure shall constitute a waiver of the exemptions.” The appellate court in Ardon had read the word “disclose” in this section literally 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 court had disagreed with this interpretation. Opting for a less literal approach, it found the word “disclosed” to be ambiguous, questioning whether an agency really could “disclose” records if it did not intend to release them. The Newark court looked to how section 6254.5 appeared in context with other codes, as well as the section’s legislative history, and concluded that a disclosure of privileged records can only occur if a release of records is intentional.
In its recent ruling, the Supreme Court adopted the Newark court’s reasoning. Examining how section 6254.5 fits within the overall CPRA scheme, the Supreme Court believed the section was most likely intended to preclude the practice of selective disclosures—releases of exempt records to certain requesting parties but not others. Recognizing that state and local agencies regularly handle a high volume of public-records requests, the Court found it implausible the Legislature could have intended to penalize agencies when they inevitably release privileged records by mistake.
A Relief for Local Agencies
The Supreme Court’s decision is a relief for local agencies. Because requesting parties often make very broad CPRA requests, the volume of responsive records can be extensive, making it difficult to always cull privileged documents from large productions. Because the agency staff who handle records requests also usually have many other duties to perform, it’s not unreasonable to expect they may make mistakes when producing documents.
In effect, the Supreme Court ruling means a local agencies will not suffer a “gotcha” moment when—as can especially happen when parties in litigation with agencies use the CPRA to circumvent civil discovery rules—privileged documents are mistakenly released. In this author’s opinion, the attorneys in Ardon and Newark who obtained the inadvertently released documents engaged in ethically questionable, though not prohibited, behavior by refusing to return the privileged documents. The Supreme Court decision makes clear to attorneys who sue local government that this practice is not acceptable, and that their obligation to return mistakenly released records under the CPRA is the same as that which has long prevailed in civil litigation.