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March 17, 2016

Ardon v. City of Los Angeles (2016) 62 Cal.4th 1176

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The Supreme Court holds inadvertent disclosure of attorney-client privileged and work product protected documents pursuant to a Public Records Act request does not constitute waiver, and the claw back rules of inadvertently disclosed documents apply.

Plaintiff filed a class action lawsuit against Defendant City challenging the validity of a certain tax and seeking a refund. The trial court agreed when the City refused to produce certain documents as covered by the attorney-client privilege and work product protection.  Several years later Plaintiff requested similar documents outside the litigation process utilizing the Public Records Act.  After the City Administrative Officer provided documents the Plaintiff’s attorney notified the City’s attorney that she had acquired several documents that appeared to match those on the original privilege log.

The City responded that the documents were inadvertently disclosed, asked they be returned and that Plaintiff not rely on them. Plaintiff refused claiming waiver.  The trial court denied City’s motion for return of the documents, concluding the City had waived any privilege. 

The Supreme Court reversed. The California Public Records Act grants access to public records held by state and local agencies.  It broadly defines public records as any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency.  A public entity must show requested information falls within an exemption to avoid disclosure.  A provision exempts records excepted under federal or state law, including documents privileged under the Evidence Code.  Plaintiff asserted actual disclosure of exempt documents constitutes a waiver.  The Act also provides exemptions to waivers, but none refer to an inadvertent disclosure.

The Court found the statutory language as a whole ambiguous, and sought to discern the statute’s underlying purpose and to harmonize its different components. The statute’s exemptions concern information provided to the government by third parties who wish the information be kept confidential, such as statements of personal worth or personal financial data and the like. The many exemptions render it doubtful the Legislature intended to prevent government agencies from minimizing the damage caused by inadvertent disclosure of private and confidential information, or that inadvertent disclosure requires confidential information to become public. It is more plausible the Legislature intended to permit state agencies to voluntarily and knowingly waive exemptions, but prohibit them from selectively disclosing the records to one member of the public but not others.

This interpretation is confirmed by examination of the Public Records Act as a whole. It refers to the effect of a disclosure to any member of the public and identifies circumstances in which a public agency may choose to disclose documents to some smaller audience than the public as a whole, such as disclosures in legal proceedings or to another government agency who has agreed to keep the records confidential. Some provisions evince a particular concern with third-party confidentiality interests at stake, such as its strict requirements for disclosure of personal information maintained by public agencies.

Nothing suggests the Legislature contemplated the effect of an inadvertent disclosure. The legislative history, which states it was codifying existing law, also confirms the Act does not contemplate inadvertent disclosures. Case law at the time the Act was amended denied public officials the power to pick and choose the recipients of disclosure; it did not address inadvertent disclosure.

The Court disagreed with Plaintiff that the City sought to undermine the purpose of the Act through selective disclosure. The City sought no disclosure by trying to force Plaintiff’s attorney to return the privileged documents unread.  An inadvertent release does not involve a selective release to some but not all members of the public, which is what the Public Records Act addresses.

Construing the Act to not include inadvertent disclosures of attorney-client or work product material is consistent with their purposes. The attorney-client privilege safeguards the confidential relationship between clients and their attorneys to promote full and open discussion of facts and tactics.  Work product protection enables a lawyer to work privately without unnecessary intrusion by opposing parties and their counsel.  They are as necessary to governmental agencies as to private parties.

Waiver of attorney-client and work product has been interpreted restrictively. It does not include accidental, inadvertent disclosure of privileged information.  An attorney who receives privileged or protected documents due to inadvertence must refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and immediately notify the sender.  The parties resolve the issue by agreement or resort to the court.  The Court extended these rules to inadvertent disclosures by clients as well as by attorneys.

The Court rejected Plaintiff’s argument that the policy behind the Public Records Act mandated it be broadly construed to protect the people’s right of access to information. The rule did not require every conceivable textual ambiguity be resolved in favor of greater access, no matter how implausible. Here, the statutory text, context, purpose, and history dictates the Legislature did not intend the Public Records Act’s protections be forfeited through simple inadvertence.

The Court warned its holding was not license for public agencies to recast, at their option, any past disclosures as inadvertent and reassert a privilege. The rule applies only to truly inadvertent disclosures and should not be abused to permit the type of selective disclosure the Public Records Act prohibits.   Just as in privilege analyses, the agency’s own characterization of its intent is not dispositive.  Court must examine the subjective intent of the holder of the privilege and the relevant surrounding circumstances to determine the holder’s consent to disclose the information.

Comment: This case shows strong protection under California Law for attorney-client privilege remains, and seemingly extends it to work product protection.  Protection wins over the mandate of the Public Records Act to temper secrecy in government.

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