Good News for Public Agencies: Supreme Court Decides Accidental Disclosure of Privileged Documents under Public Records Act Does Not Result in Waiver of Privilege
Yesterday, the California Supreme Court decided a significant case concerning the California Public Records Act (“CPRA,” Government Code §§ 6250 et seq.). In its decision, the court held that only intentional disclosure of public records – not inadvertent disclosure – waives privileges applicable to the records. (Ardon v. City of Los Angeles (March 17, 2016, S223876).) Previously, two intermediate appellate courts had split on this important issue.
In the Ardon case, the City of Los Angeles (“City”) sought to compel an attorney to return allegedly privileged documents after the City had inadvertently produced those documents to the attorney in response to her request under the CPRA. However, subject to limited exceptions, the CPRA provides that disclosure of any document by a public agency constitutes waiver of any claim of privilege as to that document. (Government Code § 6254.5.) Therefore, both the trial court and the appellate court ruled that the City’s accidental disclosure waived any privileges, such as the attorney-client privilege, applicable to the documents.
In a separate case, involving school district records claimed as privileged, a different appellate court came to the opposite conclusion. That court found that the school district did not waive privilege by inadvertently disclosing the records in response to a CPRA request. (See Newark Unified School District v. Superior Court of Alameda County (July 31, 2015, A142963).
In resolving this issue, the Supreme Court concluded that the CPRA waiver provision only applies where a public agency makes a “knowing and voluntary disclosure.” This interpretation is also consistent with waiver rules in litigation, concerning attorney-client privileged and work product privileged documents. Those litigation rules generally allow privilege holders to seek return of privileged documents that are inadvertently disclosed during discovery.
Although the court’s decision was 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.” 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.
The Ardon and Newark cases underscore the care public agencies must use in responding to CPRA requests. Further, in situations where a public agency does inadvertently disclose privileged documents, staff should promptly consult with agency counsel and act as swiftly as possible to respond to such a disclosure.