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The California Supreme Court has held that information relevant to public business contained in emails or text messages stored on private electronic devices of government officials is subject to disclosure under the Public Records Act. City of San Jose v. Superior Court (Smith), No. S218066 (Calif. Supreme Court, March 3, 2017).

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The California Supreme Court has resolved a significant split among California appellate courts regarding whether inadvertent disclosure of documents in response to a Public Records Act request results in waiver of the attorney-client privilege pursuant to section 6254.5 of the Act. The court held that this waiver provision applies only to intentional release of a public record, and hence that a public agency’s inadvertent disclosure of a document does not waive applicable privileges.  Ardon v. City of Los Angeles, No: S223876 (March 17, 2016)

An attorney representing the plaintiff in a pending class action against the City of Los Angeles served the City with a request for documents under the Public Records Act. In response, an assistant city administrative officer provided the attorney with approximately 53 documents, among which were three memos containing attorney-client communications. After discovering this, the City notified plaintiff’s counsel that the privileged documents had been produced inadvertently, and requested their return. After plaintiff’s counsel refused, the City filed a motion to compel return of the documents, which was denied by the trial court.

In a published decision, the Second District Court of Appeal affirmed the trial court’s ruling, concluding that production of the documents had waived any privilege pursuant to Section 6254.5 of the Act. The California Supreme Court granted the City’s petition for review of this decision. While review was pending, the First District Court of Appeal decided Newark Unified School District v. Superior Court, No. A142963 (1st Dist. Ct. App., August 1, 2015). As discussed in our report on that case (Court Rejects “Gotcha” Theory of Waiver Under Public Records Act), the First District held that inadvertent disclosure of documents containing attorney-client communications in response to a Public Records Act request does not result in a waiver of the privilege under section 6254.5.
Continue Reading Inadvertent Disclosure of Documents Under the Public Records Act Does Not Waive the Attorney-Client Privilege

Update:  After granting review and holding the Newark case (below) pending its decision in Ardon v. City of Los Angeles, No: S223876 (March 17, 2016), the California Supreme Court agreed with the reasoning in Newark, discussed below, and rejected the conflicting reasoning of the Second District Court of Appeal in the case before it.  Our report on the Ardon case (Inadvertent Disclosure of Documents Under the Public Records Act Does Not Waive the Attorney-Client Privilege) is available here.

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A California appellate court has ruled that inadvertent disclosure of documents containing attorney-client communications in response to a Public Records Act request does not result in a waiver of the privilege. Newark Unified School District v. Superior Court, No. A142963 (1st Dist. Ct. App., August 1, 2015 — Ordered Published by Cal. Supr. Ct., March 17, 2016). A contrary interpretation, the court concluded, would not advance the purposes of the statute and would create an irreconcilable conflict with Evidence Code section 912, under which accidental disclosure of attorney-client information does not constitute a “disclosure” triggering its waiver provisions.

Background.
Two community organizations requested documents from a school district under the Public Records Act. Within hours of releasing the documents, the district realized it had inadvertently included documents containing attorney-client communications. It immediately contacted the recipients, informing them of the inadvertent inclusion and seeking return of the privileged documents. The two organizations refused, contending that disclosure of the documents waived any privileges by operation of section 6254.5 of the Act, which states that disclosure of a public record to any member of the public waives otherwise applicable exemptions.

The Public Records Act broadly grants access by members of the public to all records relating to the public’s business. The Act contains a number of exemptions, including the exemption for records subject to privileges in the Evidence Code, such as the privilege that extends to records containing attorney-client communications.  Section 6254.5 of the Act, however, provides that “Notwithstanding any other provisions of law, whenever a state or local agency discloses a public record which is otherwise exempt from this chapter, to any member of the public, this disclosure shall constitute a waiver of the exemptions” specified in the Act. …
Continue Reading Court Rejects “Gotcha” Theory of Waiver Under Public Records Act