Attorney-Client and Work Product Privileges Are Not Waived Under Public Records Act by Inadvertent Release of Documents

August 2015

The California Court of Appeal has ruled that a public agency’s accidental release of privileged documents in response to a Public Records Act (“PRA”) request does not waive the otherwise applicable exemption from disclosure based on the attorney-client and attorney work product privileges.  (Newark Unified School District v. Superior Court (07/31/15, No. A142963).)

When the Newark Unified School District (“District”) delivered documents in response to a PRA request, it inadvertently included over a hundred documents that, the District contended, were subject to the attorney-client or attorney work product privileges.  Within hours of the release, the District’s interim superintendent discovered the error and sent e-mails to the recipients asking for return of the documents.  The recipients refused to do so, citing Government Code section 6254.5 in contending the District’s inadvertent release had waived those privileges.  Under that statute, the disclosure of a document to the public waives any claim by an agency that the document is exempt from release under the PRA.

The District filed an action seeking return or destruction of the privileged documents.  The trial court initially granted a temporary restraining order preventing their dissemination, but it ultimately agreed with recipients of the documents, holding that section 6254.5 effected a waiver of any claim of confidentiality.  Before the restraining order expired, the District sought review by the Court of Appeal.

On appeal, the District asserted that the term “disclosure” requires an intentional act, citing the legislative history of section 6254.5.  An inadvertent release of documents, it argued, was outside the scope of the statute.  The Court of Appeal agreed.  It determined that the legislature’s intent in enacting section 6254.5 was to prevent public agencies from disclosing documents to some members of the public while asserting confidentiality as to other persons.  “Waiver [of privilege] as a result of an inadvertent release, while not necessarily inconsistent with the legislature’s intent, was not within its contemplation,” the court stated.

Additionally, the court found it was compelled to interpret section 6254.5 to exclude inadvertent disclosures in order to avoid a conflict with Evidence Code section 912, which has been construed not to effect a waiver of the attorney-client and work product privileges in those circumstances.  The court also added that “while we adopt this interpretation of section 6254.5 in the interests of statutory harmony, solid policy grounds support it.  Protection of the attorney-client privilege is regarded as fundamental to the administration of justice, and its waiver is disfavored.”

 

If you have any questions regarding this case or any other issue regarding the Public Records Act, please call one of our six offices. 

F3 NewsFlash prepared by Kelly M. Minnehan and John W.  Norlin.
Kelly is a senior associate in the F3 San Diego office.
John is Special Counsel in the F3 San Diego office.

This F3 NewsFlash is a summary only and not legal advice.  We recommend that you consult with legal counsel to determine how this legal development may apply to your specific facts and circumstances.  Information on a free NewsFlash subscription can be found at www.f3law.com.

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© 2015 Fagen Friedman & Fulfrost, LLP

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