Inadvertent Public Records Act Release of Attorney Work Product Does Not Necessarily Waive Privilege

August 10, 2015 | Bulletin No. 1273975.1

The Public Records Act (PRA) generally provides that documents retained by a public agency must be disclosed to the public. However, the PRA includes various exceptions. One such exception is that documents subject to the attorney-client and attorney work product privileges need not be disclosed. That being said, Government Code section 6254.5 provides that once a privileged document is "disclosed" by a public agency, the privilege is waived and the document must be disclosed to any member of the public.

In Newark Unified School District v. Superior Court, (July 31, 2015) ___ Cal.App.4th ___ , the Court of Appeal, First Appellate District, held that documents are not necessarily "disclosed" under Section 6254.5 when a public agency inadvertently releases documents subject to the attorney-client and attorney work product privileges.

Background

In Newark Unified, a school district inadvertently disclosed documents subject to the attorney-client and attorney work product privileges. However, within hours of releasing the information, the school district notified the recipients and requested the return or destruction of the documents. The recipients of the documents refused, arguing that the school district waived any privilege per Section 6254.5.

At the school district's request, the trial court granted a temporary restraining order preventing the dissemination of the documents. However, the trial court ultimately found that the privilege was waived by the inadvertent release of the documents. The school district appealed and the Court of Appeal sided with the school district and held that the documents' privilege was not waived.

In reaching this conclusion, the Court spent considerable effort analyzing the word "disclosed" to determine whether it includes the inadvertent release of information. The Court found that the word "disclosed" is ambiguous.

To resolve this ambiguity, the Court turned to legislative history and the rules of statutory interpretation. The legislative history showed that the purpose of Section 6254.5 was to prevent government agencies from selectively disclosing records to only certain persons or groups. In other words, the Legislature did not contemplate the inadvertent release of documents when drafting Section 6254.5. 

Moving forward, the Court attempted to reconcile two conflicting rules of statutory interpretation.  The first rule requires ambiguities in the PRA to be broadly construed in favor of the disclosure of records. The second rule requires courts to read an ambiguity in a statute in harmony with other statutes. Ultimately, the Court held that Section 6254.5 must be read in harmony with the discovery rule contained within Evidence Code section 912. Courts have long interpreted Section 912 in a manner that does not waive the attorney-client privilege when documents are inadvertently released. Therefore, the Court adopted the same rule for Section 6254.5.

Although the Court held that Section 6254.5 does not waive the attorney-client and work product privilege when documents are inadvertently disclosed, the Court noted that the confidentiality of the documents might not be able to be maintained if the recipients of the documents disseminated the information to many third-parties. However, in the current case, the school district requested the destruction or return of the documents within hours after releasing the documents. As few third-parties had access to the documents, the trial court could order effective relief.

What This Means To You

If a public agency inadvertently releases documents subject to the attorney-client and attorney work product privileges, the privilege is not immediately waived. However, the public agency must act quickly to notify the recipient of the documents and seek a temporary restraining order, if necessary. Failure to promptly notify the recipient of the documents could result in the dissemination of the documents to many third-parties. If this occurs, the public agency may not be able to maintain the confidentiality of the documents.

Public agencies should also be aware that Newark Unified contradicts a recent decision by the Second Appellate District. The Supreme Court is currently reviewing the Second Appellate District's decision. (Ardon v. City of Los Angeles (2014) 232 Cal.App.4th 175 [review granted and opinion superseded,  (Cal. 2015) 184 Cal.Rptr.3d 726].) We expect an opinion by the Supreme Court on this issue in the not too distant future.

Questions

If you have any questions concerning this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult:
Jeffrey A. Mitchell | 916.321.4500