Inadvertent Disclosure of Privileged Documents in Response to Public Records Act Request Does Not Waive Protection
From time to time, public agencies find themselves subject to requests from the public for documents related to specific public agency business under the California Public Records Act. The cornerstone of the Public Records Act (Cal. Govt. Code § 6250 et. seq.) requires that a public agency disclose documents when requested, unless those documents qualify for an exemption.
One such exemption allows a public agency to maintain the confidentiality of documents between the public agency and legal counsel. (Cal. Govt. Code § 6254). The California Supreme Court recently examined whether an inadvertent disclosure of such privileged documents would act as a waiver of the attorney-client and/or work product privileged. (Ardon v. City of Los Angeles, (2016) 62 Cal.4th 1176).
In Ardon, administrative staff for the City of Los Angeles inadvertently disclosed documents that qualified for either the attorney-client or attorney work product privilege. The attorney-client privilege protects documents and confidential information pertaining to legal advice between an attorney and the client. (Cal. Evid. Code § 954). Likewise, the attorney work product privilege protects an attorney’s “impressions, conclusions, opinions, or legal research or theories” from disclosure. (Cal. Civ. Proc. Code § 2018).
Despite the Public Records Act specifically providing that disclosure of such documents waives the privilege (Cal. Govt. Code § 6254.5), the court ruled that the privilege still applied despite the inadvertent disclosure. The court in Ardon ruled that allowing an inadvertent disclosure under the Public Records Act to act as a waiver to privilege would work as a “gothcha theory of waiver” thereby permitting an accidental disclosure to work as consent to a waiver.
The case serves as a reminder of how challenging responding to the Public Records Act can be. Public agencies should not only carefully examine documents in response to such a request, but cautiously consider what public documents are actually being created. A quick email regarding a coworker or some notes scribbled at a meeting could be subject to disclosure under the Public Records Act. Therefore, all public agencies should be mindful of their obligations under the Public Records Act.
Timing Matters: Despite Finding That a District’s IEP Was Appropriate, OAH Declined to Order Implementation without Parental Consent since Hearing Occurred after the IEP “End Date.”
Student is a 13-year-old boy who resided within the geographical boundaries of Folsom Cordova Unified School District. Student is eligible for special education under the category of autism. Student began receiving special education services from Folsom Cordova in 2006 when he was in preschool.
On April 9, 2015, after approximately four hours of discussion at an IEP team meeting and approximately six hours of discussion at three prior IEP team meetings, the District presented an IEP offer to which the Parents declined to consent. The IEP’s provision of special education and related services began on April 9, 2015 and ended on April 8, 2016. The IEP did not contemplate any period of time beyond April 8, 2016.
On September 4, 2015, the District filed a due process hearing request with the Office of Administrative Hearings (“OAH”) seeking a finding that its April 9, 2015 IEP offered Student a FAPE for the 2015-2016 school year and requested an order allowing it to implement the IEP absent parental consent. On September 16, 2015, the matter was continued for good cause. On November 16, 2015, Student filed a due process hearing request with OAH against the District. On November 20, 2015, OAH granted Student’s Motion to Consolidate Student’s case with the District’s case, basing the timeline for issuing a decision on the filing date in Student’s case.
On January 21, 2016, OAH granted Student’s motion to amend his complaint. Student’s case and District’s case remained consolidated, basing the timeline for the issuance of the decision on the filing date in Student’s case. On March 4, 2016, OAH granted another continuance. The hearing occurred on March 29 and 30, 2016, and April 5, 6, 7, 11, 13, 19, and 20, 2016. On June 8, 2016, OAH issued its decision.
The hearing officer held that the District prevailed on all issues including finding that the District’s April 9, 2015 IEP was procedurally and substantively appropriate. However, the District’s request to implement the April 9, 2015 IEP prospectively was not granted because the offer began April 9, 2015 and ended April 8, 2016. The hearing officer explained that since the case was not heard until after the time period contemplated in the April 9, 2015 IEP offer, and because the IEP was designed to address Student’s needs during the time period designated within the IEP, she could not order that the District implement the April 9, 2015 IEP without parental consent during any subsequent period.
WHAT THIS MEANS TO YOU:
Local educational agencies have a responsibility to initiate a due process hearing within a reasonable time after a child’s parents fail to consent to an IEP, and delaying a year and a half to file is too long. (I.R. v. Los Angeles Unified School District, 66 IDELR 208 (9th Cir. 2015).) However, even when an LEA files a timely due process complaint, the time it takes to litigate a case may prevent an LEA from obtaining the desired outcome. Here, it took nine months from the time the district filed its timely request for a due process hearing to when OAH issued its decision. Moreover, LEAs must continue to adhere to ongoing procedural requirements such as conducting assessments, convening IEP team meetings, and providing progress reports pending a resolution to a request for a due process hearing. As a result, timing is critical when a local educational agency determines that it is necessary to initiate a due process hearing seeking an order to implement a child’s IEP.