Last Friday, a California Court of Appeal held that inadvertent disclosure of privileged records by a school district responding to a California Public Records Act (CPRA) request did not waive the confidentiality of those records. (Newark Unified School District v. Superior Court (2015) ___Cal.App.4th___ [2015 WL 4594095].) While the CPRA prohibits “selective” disclosure of records, meaning records disclosed to any member of the public are deemed public records, the court held that the rule only applies to intentionally disclosed records. Records accidentally disclosed by a public agency do not automatically lose any privilege or confidential status.

The CPRA generally provides that disclosure of a document to the public waives any claim by a public agency that the document is exempt from disclosure under the CPRA. The Court of Appeal, however, concluded that the statutory provision at issue was not meant to apply to an inadvertent release of privileged documents. Instead, it was intended to prevent intentional disclosure to select members of the public – disclosing to some while withholding from others. Thus, where a school district inadvertently discloses a record, it does not waive any privilege as to the record.

While the opinion is published and is precedential at this time, the California Supreme Court currently is considering this same issue in Ardon v. City of Los Angeles (2014) 232 Cal.App.4th 175, rev. granted March 11, 2015. In that case the Court of Appeal reached a conclusion that is directly contrary to the decision in Newark Unified School District, holding that the inadvertent disclosure of privileged records did waive any protection from disclosure. That decision was vacated when the California Supreme Court took review of the case. Therefore, at this time, the decision in Newark Unified School District is the law of the land.

The CPRA has been the subject of many recent lawsuits and several cases are pending in various Courts of Appeal and in the California Supreme Court. We expect a lot of activity in this area of the law and as always, will provide you with news as it breaks. In the meantime, if you have questions about responding to any other CPRA request, please contact a DWK attorney.