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March 24, 2016  |  Written by Lauren D. Bernadett

Supreme Court Holds Inadvertent Disclosure of Privileged Documents Under A Public Records Act Request Does Not Waive Privilege

On March 17, 2016, the Supreme Court of California held in Ardon v. City of Los Angeles, Case No. S223876, that inadvertent disclosure of otherwise privileged documents under a Public Records Act request does not waive privilege. The case required the Court to interpret Government Code section 6254.5, which provides that disclosure of a public record waives any privilege. The Court ultimately held that this waiver applies to intentional, but not inadvertent, disclosures. As a result, inadvertent disclosures of privileged documents under the Public Records Act do not waive privilege.

This case stems from an earlier tax case in which the Plaintiff served the City of Los Angeles (City) with two requests for production of documents. In 2008, the City produced some documents and provided a privilege log to the Plaintiff. In 2013, the Plaintiff requested documents pursuant to the Public Records Act related to the tax issue, and the city administrative office provided the documents. A few months later, the Plaintiff informed the City’s counsel that three of the documents received, pursuant to the Public Records Act request, appeared to be listed in the privilege log. The City informed Plaintiff that the three documents were privileged and had been produced inadvertently, and asked the Plaintiff to return them and not rely on them. The Plaintiff refused, stating the production of the documents pursuant to the Public Records Act request waived any privilege claim. The superior court and court of appeal agreed with the Plaintiff. The City petitioned the Supreme Court for review.

The Public Records Act exempts privileged documents from disclosure. Plaintiff argued that, based on Government Code section 6254.5, the City waived any privilege by disclosing the documents under the Public Records Act. Government Code section 6254.5 provides that Public Records Act exemptions are waived when a public record is disclosed. The Plaintiff contended that any disclosure waived the privilege. The Supreme Court disagreed.

The Court began its analysis by noting that the Public Records Act included many exemptions for confidential records. Considering these exemptions, the Court found it doubtful that the Legislature intended to prevent public entities from minimizing damage caused by inadvertent disclosure of privileged or confidential information. It was “[m]uch more plausible” that the Legislature intended to allow public entities to waive exemptions by making intentional disclosures, while prohibiting selective disclosure to only some members of the public. The Court found that disclosure to the Plaintiff, but not others, did not qualify as selective disclosure because the City sought no disclosure by asking the Plaintiff to return the documents unread. The Court also noted that its decision was consistent with the treatment of inadvertent disclosures in response to discovery requests. The Court reversed the court of appeal’s judgment and the matter was remanded for further proceedings. The Supreme Court’s full opinion can be found here.

For more information on this topic, please contact Lauren Bernadett at lbernadett@somachlaw.com

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