Yesterday, the California Supreme Court resolved a conflict in appellate opinions by ruling that inadvertent disclosure of privileged records by a public entity responding to a California Public Records Act (CPRA) request does not waive the confidentiality of those records. (Ardon v. City of Los Angeles (2016, S223876) __ Cal.App.4th __.) The Court reversed a lower court to hold that records accidentally disclosed by a public entity do not automatically lose any privilege or other status making them otherwise exempt from disclosure under the CPRA.
Plaintiff’s attorney submitted a CPRA request to the City of Los Angeles pertaining to a complaint he previously filed against the City, to which the City responded by providing records. It soon came to light that the response included records that the City had previously claimed were privileged. The City asserted the documents were inadvertently produced and demanded their return, but Plaintiff’s attorney refused. The City went to court to compel the return of the documents. The trial court and Court of Appeal both found that the City had waived any privilege by disclosing the records and the City was not entitled to their return.
The California Supreme Court reversed the Court of Appeal. It held that “[a] governmental entity’s inadvertent release of privileged documents under the [CPRA] does not waive the privilege.” The Supreme Court explained that the CPRA generally provides that disclosure of a document waives any claim by a public entity that the document is exempt from disclosure under the CPRA; however, this provision was not meant to apply to an inadvertent release of privileged documents. Instead, the waiver was intended to prevent intentional disclosure to select members of the public – disclosing to some while withholding from others. Thus, where disclosure of a record is truly inadvertent, the disclosure does not waive any privilege as to the record.
Where there had been conflicting opinions on this point, the Supreme Court’s decision clarifies that inadvertent disclosure of a privileged document does not automatically waive privilege as to the document for purpose of that request and any future requests. At the same time, the holding stressed this ruling only applied where disclosure was truly inadvertent. Where that is the case, the public entity may seek the return of the privileged documents it inadvertently disclosed and may demand that the recipient not use or disseminate the privileged documents.
Dannis Woliver Kelley has experience handling a wide variety of CPRA requests and can assist your district in formulating appropriate responses to any type of CPRA request and in seeking remedy for any inadvertently disclosed privileged documents. If you have questions about responding to any other CPRA request, please contact a DWK attorney.