Jennifer Snyder, Elizabeth Brazil, Newark Advocates for Change, and Newark Citizens for Change requested documents from the Newark Unified School District under the California Public Records Act (PRA). When the District delivered documents in response to the requests, it inadvertently included over a hundred documents that the District contends are subject to the attorney-client or attorney work product privileges.
Within hours of the release, the District's interim superintendent discovered the error and asked the recipients to return the documents. Snyder and Brazil refused. Snyder argued that under Government Code section 6254.5, the District had waived the privileges by inadvertently releasing the documents. Section 6254.5 provides that the disclosure of a document to the public waives any claim by an agency that the document is exempt from release under the PRA.
The District filed an action seeking the return or destruction of the privileged documents. The trial court granted a temporary restraining order preventing their dissemination, but ultimately held that the District waived any claim of confidentiality with respect to the documents under Section 6254.5. The District filed a petition for a writ of mandate in appellate court.
The appellate court explained that the right of access to public records held by state and local agencies under the PRA is not absolute. Documents exempt from release include documents subject to the attorney-client and attorney work product privileges. Section 6254.5 deems the exemption from release under the PRA to be waived if a privileged document is "disclosed" to a member of the public. The District argued that the term "disclosure" requires an intentional act, and that an inadvertent release of documents does not constitute disclosure.
The Court first examined the plain meaning of Section 6254.5, and found that it is ambiguous and susceptible to the meanings urged by both parties. It therefore examined the legislative history of Section 6254.5. The legislative history of the bill creating Section 6254.5 indicates that it is intended to codify a ruling prohibiting selective disclosure of records that are otherwise exempt from disclosure: public officials may not favor one citizen with disclosures denied to another. When a record becomes available for public inspection, it loses its exempt status and every citizen is endowed with a right to inspect it.
The Court found that when a release is inadvertent, no "selection" occurs because the agency has not exercised choice in making the release. Therefore, an inadvertent release does not involve an attempt to assert an exemption as to some, but not all members of the public, the problem Section 6254.5 was intended to address. Further, the Court found that excluding the inadvertent release of documents from the scope of Section 6254.5 avoids a conflict with Evidence Code section 912, which governs waiver of the attorney-client and attorney work product privileges. The Court noted that judicial interpretation of Evidence Code section 912 dating back nearly two decades holds that the inadvertent disclosure of privileged documents does not effect a waiver. The Court, therefore, found that the District had not waived the attorney-client or attorney work product privileges under the PRA through its inadvertent release of documents. After granting review, the Supreme Court of California then ordered the Court of Appeal opinion to be published.
Newark Unified School District v. Superior Court of Alameda County (2016) 366 P.3d 1005.