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Appellate Court Says Accidental Disclosure of Documents Does Not Waive Privileges

A California appellate court recently held that, when a public agency inadvertently releases documents protected by the attorney-client privilege or attorney work product privilege in response to a request under the California Public Records Act (“CPRA,” Government Code §§ 6250 et seq.), the release does not waive the privileges. (Newark Unified School District v. Superior Court of Alameda County (July 31, 2015, A142963).)

In June 2014, several residents and community organizations requested records from the Newark Unified School District (“District”).  After the District released hundreds of records to the requesting parties, District personnel realized that the released records included documents that, the District contended, were protected by the attorney-client and attorney work product privileges.  When the requesting parties refused to return the potentially privileged documents, the District filed suit seeking the documents’ return or destruction.

The requesting parties argued that the District, by releasing the documents, waived any exemptions or privileges under the CPRA’s waiver provision.  That provision, Government Code § 6254.5, states that, when a public agency “discloses” documents, the agency can no longer claim any exemptions or privileges related to those documents, subject to certain exclusions.

The appellate court’s decision in Newark turned on whether “disclose,” as that term is used in the CPRA waiver provision, includes an accidental release of privileged documents.  The requesting parties argued that a person can disclose documents purposely or accidentally and that, therefore, a public agency can waive privileges even by unintentional release of privileged documents.  In contrast, the District argued that disclosure refers to an intentional act.

The court noted each party’s definition of “disclose” was reasonable and that the Legislature adopted § 6254.5, the waiver provision, to prevent the selective disclosure of records by public agencies.  The court construed § 6254.5 not to apply to unintentional releases of privileged documents.  The court did so to avoid conflicts between the CPRA waiver provision and the Evidence Code provision concerning waiver of privileges.

Under Evidence Code § 912, waiver of the attorney-client or attorney work product privilege occurs where a holder of the privilege discloses a significant part of the communication or has consented to such disclosure.  Judicial interpretation of Evidence Code § 912 holds that the inadvertent release of documents protected by the attorney-client privilege and attorney work product privilege does not result in waiver of those privileges.  To avoid a conflict between the two statutes, the Newark court construed Government Code § 6254.5 to exclude the accidental release of privileged documents.

An issue left open by the Newark court is the extent to which public agencies will be able to successfully seek return of unintentionally disclosed privileged documents, if such documents have already been provided to third parties.  Although attorneys have an ethical duty not to review privileged documents inadvertently produced in litigation, and to return the documents upon request, members of the public have no such duty.  This creates the possibility that, before a public agency can bring an action for return of privileged documents, a member of the public will disseminate them to third parties, making it infeasible, if not impossible, to preserve confidentiality.  The appellate court noted that this is an issue for trial courts to consider in deciding whether to grant relief to a public agency seeking the return of documents.  For this reason, public agencies should respond as quickly as possible to any unintentional release of privileged documents.

This is the second recent case in which an appellate court considered the CPRA waiver provision.  In a previous case, Ardon v. City of Los Angeles (Dec. 10, 2014, B252476), a different appellate court concluded that a public agency can waive privileges under Government Code § 6254.5 if it releases a privileged document by mistake.  In March, the California Supreme Court granted review of the Ardon decision; that case is still pending before the Supreme Court.

These cases underscore the care public agencies must take in complying with the California Public Records Act.  However, in light of the Supreme Court’s pending review of Ardon, the Newark decision likely will not be the final court decision concerning inadvertent disclosure and waiver under the CPRA.

For more information, please contact Ruthann G. Ziegler at 916.556.1531.