CA Supreme Court Rules Inadvertent Disclosure of Public Records Does Not Waive Applicable Privileges
On March 17, the California Supreme Court resolved conflicting appellate court decisions on a critical issue for public agencies – does an inadvertent disclosure of public records waive privileges associated with those records? (Ardon v. City of Los Angeles (March 17, 2016, S223876).)
The Court concluded that the California Public Records Act waiver provision (“CPRA,” Government Code §§ 6250 et seq.) only applies when a public agency makes a “knowing and voluntary disclosure” – not accidental – of public records. Although the decision is favorable to public agencies, the Court warned that agencies should not be tempted to “recast, at their option, any past disclosures as inadvertent so that a privilege can be reasserted subsequently.”
When an unintentional disclosure does occur, an agency may look to a judicial forum for recovery of the records or, if no such forum exists, file a complaint for injunctive relief. Courts assessing claims of inadvertent disclosure by a public agency will likely look to both subjective intent of the agency and the objective circumstances surrounding the disclosure, such as the promptness with which the agency sought return of the documents, and precautions taken to minimize inadvertent releases of documents.