Inadvertent Disclosure of Privileged Documents in Response to Public Records Act Request Does Not Waive Protection

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Author: Michael Tucker, Attorney at Law

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.

 

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