On March 17, 2016, the California Supreme Court resolved an important case regarding the California Public Records Act, ruling unanimously that the inadvertent release of confidential documents does not waive the attorney-client and attorney work product privileges. Ardon v. City of Los Angeles, 62 Cal.4th 1176 (2016). The privileges are only waived when the disclosure of otherwise confidential public records is intentional.
The Ardon case arose out of a class action lawsuit filed against Los Angeles challenging the validity of certain taxes and seeking a refund of taxes already collected. In responding to the plaintiff’s Public Records Act request, a city administrative officer disclosed 53 records, three of which were privileged. The City informed the attorney the that the three documents were privileged and had been produced inadvertently, and requested that the attorney return them and not rely on them. After the attorney refused to return the documents on the grounds that their disclosure had waived the privileges, the City filed a motion to compel the return of the documents. The trial court denied the motion and the Second District Court of Appeal affirmed.
While review was pending in the California Supreme Court, the First District Court of Appeal decided Newark Unified School District v. Superior Court, 239 Cal.App.4th 33, 45 (2015), ruling that an inadvertent release of confidential documents does not waive the privileges. The Newark decision thus allowed the California Supreme Court to resolve an important split in the appellate courts.
Ardon hinged on the meaning of Government Code section 6254.5, which provides that “[n]otwithstanding any other provisions of law, whenever a state or local agency discloses a public record which is otherwise exempt from [the Public Records Act], to any member of the public, this disclosure shall constitute a waiver of the exemptions . . .” contained in the Public Records Act. The California Supreme Court considered the statutory language to be ambiguous and resolved the issue by considering the language in its context.
The Court noted that Government Code section 6254 exempts many documents from disclosure, including documents protected by the attorney-client and the attorney work product privileges. In light of the long list of exempted documents, the Court reasoned that
“it is doubtful the Legislature intended to enact a statutory scheme that would prevent government agencies from minimizing the damage caused by the inadvertent disclosure of private and confidential information. Nor is it likely the Legislature intended to adopt a rule that inadvertent disclosure requires confidential information to be made generally available to the public. Much more plausible is that the Legislature intended to permit state agencies to waive the exemptions by making a voluntary and knowing disclosure, while prohibiting them from selectively disclosing the records to one member of the public but not others.”
Considering all of the exemptions in Government Code section 6254.5, the Court concluded that they contemplate intentional disclosures rather than inadvertent disclosures. The legislative history of the section also confirms that it is intended to address “selective” disclosures of confidential information. Quoting Newark, the Court noted that “ ‘When a release is inadvertent, no ‘selection’ occurs because the agency has not exercised choice in making the release. It was an accident. Accordingly, an inadvertent release does not involve an attempt to assert the exemption as to some, but not all, members of the public, the problem section 6254.5 was intended to address.’ ”
The Court also analyzed Evidence Code section 912(a), which provides that the attorney-client privilege “is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone.” The disclosure contemplated in Evidence Code section 912 thus involves some measure of choice and deliberation on the part of the privilege holder. Recognizing the reality that “human error is as likely to occur in the process of responding to a Public Records Act request as to a discovery request,” the Court determined that there is no reason to treat inadvertent disclosures differently in Government Code section 6254.5 than in Evidence Code section 912.
Under Ardon, public agencies may waive the privileges only by making a “voluntary and knowing disclosure” of otherwise confidential records. The Court warned, however, that its “holding that the inadvertent release of exempt documents does not waive the exemption under the Public Records Act must not be construed as an invitation for agencies to recast, at their option, any past disclosures as inadvertent so that a privilege can be reasserted subsequently. This holding applies to truly inadvertent disclosures and must not be abused to permit the type of selective disclosure section 6254.5 prohibits.”
If asked to resolve a dispute over whether a disclosure is inadvertent or intentional, an agency’s own characterization of its intent is not dispositive. Instead, a trial court would be required to examine the agency’s subjective intent and the relevant surrounding circumstances for any manifestation of the agency’s consent to disclose the information.