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January 7, 2015  |  Written by Jason T. Canger

Local Governments Cannot Compel the Return of Privileged Documents Inadvertently Disclosed Pursuant to a Public Records Act Request

On December 10, 2014, the California Second District Court of Appeals held that the Public Records Act does not allow local governments to compel the return of privileged documents inadvertently disclosed pursuant to a California Public Records Act (PRA) request.  Ardon v. City of Los Angeles, No. B252476 (December 10, 2014).

In 2006, Estuardo Ardon challenged the constitutionality of the City of Los Angeles’ (City) Telephone Users Tax (TUT), alleging that the City increased the TUT without first obtaining approval by a majority of voters.  In January 2013, Ardon’s counsel submitted a request pursuant to the PRA for documents pertaining to Ardon’s complaint.  In response, the Office of the City Administrator inadvertently disclosed two documents listed in the City’s privilege log and a third document that further disclosed the contents of the two privileged documents.  After the City explained its mistake and requested the return of the privileged documents, Ardon’s counsel declined contending that the City had waived any claim of privilege.  Thereafter, the City moved to compel the return of the three documents.

The trial court denied the City’s motion and agreed with Ardon’s counsel that the City’s production – albeit inadvertent – waived any privilege that previously attached to the documents.

On appeal, the Second District affirmed the trial court’s decision, holding that “disclosures pursuant to the PRA that are made inadvertently, by mistake or through excusable neglect are not exempted from the provisions of [Government Code] section 6254.5 that waive any privilege that would otherwise attach to the production.”  The Second District refused to accept the City’s claim that certain litigation and discovery “exceptions not found in the PRA must [] judicially attach[] to section 6254.5” so as to protect documents inadvertently disclosed.  Instead, based on its interpretation of the plain language and legislative history of Government Code section 6254.5, the appellate court distinguished the PRA from the Civil Discovery Act, explaining that the PRA was not enacted to supplement the Civil Discovery Act, which includes mechanisms that protect against inadvertent disclosure.  As a result, the Second District found that the City’s inadvertent disclosure “permanently destroyed any semblance of confidentiality by converting those documents into public records subject to disclosure to any member of the public at any time for any reason.”  The Second District reasoned that to conclude otherwise would create a “selective withholding” exemption for local governments not provided for in the PRA.  As such, the appellate court held the City could not compel Ardon’s counsel to return the documents and was precluded from claiming any privilege attached to the documents upon future request from any party.
For further information regarding this decision, please contact Jason Canger at 916-446-7979 or by email at jcanger@somachlaw.com.

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