In January, I wrote about the Second Appellate District case of Ardon v. City of Los Angeles.  In Ardon, the court found that a public entity can waive statutory privileges that it otherwise would have if it produces privileged documents in response to a California Public Records Act (PRA) request, even if inadvertently.  Recently, the First Appellate District in Newark Unified School District v. Superior Court came to the opposite conclusion in holding that a public agency cannot inadvertently waive attorney-client and work product privileges.  These contradictory holdings have created what is known as a “split of authority.” 

In Newark Unified School District, some parties requested documents from the Newark Unified School District (District) under the PRA.  The PRA requires public entities to make their public records open for inspection and copying upon request.  Within hours of delivering the documents in response to the request, the District’s interim superintendent discovered that the District had inadvertently included over one-hundred documents that it contended were subject to the attorney-client or attorney work product privileges.  The District immediately sent e-mails to the recipients of the documents requesting that they return the documents.

Citing California Government Code Section 6254.5, the document recipients argued that the District waived the privileges by its inadvertent release of the documents.  The court in Ardon had previously cited this provision in finding that a public entity waives any privilege if it discloses a privileged document pursuant to a PRA request, even if such disclosures are made inadvertently, by mistake or through excusable neglect.  However, the court in Newark Unified School District concluded that the District did not inadvertently waive the privileges.

The Newark Unified School District court reviewed the Legislative history of Government Code Section 6254.5 and determined that the Legislature intended the section to prevent public agencies from intentionally disclosing documents to some members of the public while asserting confidentiality as to other persons.  In contrast, the Legislature did not intend that a public agency could waive its privilege by inadvertent disclosure.  Finally, the court concluded that to harmonize Government Code Section 6254.5 and California Evidence Code Section 912 (in which courts have found that a privilege cannot be waived by an inadvertent disclosure), it must construe Section 6254.5 as not applying to an inadvertent disclosure of a privileged document.

The decisions in Ardon and Newark Unified School District create a clear split of authority on whether a public agency can inadvertently waive privilege.  In this author’s opinion, Newark Unified School District has the better argument.  From a public policy standpoint, it would be very burdensome on local agencies’ resources if they had to respond to PRA requests without any safeguard from inadvertent disclosure of privileged documents.  Public agencies would be held to a higher standard than private litigants, because in private litigation inadvertent disclosure does not result in a waiver of privilege.  Fortunately, this split of authority should be resolved soon, because the Ardon case is now before the California Supreme Court.  Stay tuned …