Legal Alerts Aug 05, 2015

Attorney-Privileged Documents Mistakenly Released Under PRA Still Exempt

California Appellate Court Rules in Case Likely to be Decided by State Supreme Court

Attorney-Privileged Documents Mistakenly Released Under PRA Still Exempt

A public agency that inadvertently released attorney-client privileged documents to the public did not waive its right for those documents to be exempt from disclosure under the Public Records Act, a California Appellate Court has ruled. In a decision that is at odds with a previous California Appellate Court decision, the First District Court of Appeal found that the attorney privilege takes precedence over the constitutional right of the people to have access to public records as effectuated by the PRA.

Embedded in the PRA, Government Code section 6254.5 is the principle that, once a government agency releases records to the public under the Act — even if those records qualify for an exemption from release — that exemption is forever waived. In other words, the law does not allow a public agency to pick and choose to whom to release documents by waiving the exemption in one case, and asserting it in another.

In 2014, a PRA request was made seeking documents from the Newark Unified School District related to the resignation of the former superintendent. Under pressure and threat of litigation, the documents were released two days later. Later that day, the District realized it had released some documents covered by the attorney-client privilege and immediately contacted the requesting parties seeking the return of those documents. The parties refused, and the District went to court to seek a restraining order to force the return of the claimed privileged documents. The trial court found the District had waived the exemption by the inadvertent release and denied the request. The District appealed.

Last week, the court issued a published decision siding with the District. (Newark Unified School District v. Superior Court of Alameda County) The court held that the Legislature did not intend that the “use it or lose it” principle should apply to an inadvertent release. While the court found that the Public Records Act waiver provision was ambiguous and could cut either way, the court was swayed by the attorney-client privilege itself, which is contained in the Evidence Code.

This decision is different than an earlier decision reached in December 2014 by an appellate court in Los Angeles, which held that an inadvertent release of attorney-client privileged records results in a waiver of the exemption under the Public Records Act However, the state Supreme Court agreed in March to review the case, and it is likely this decision will follow it to the state’s high court.

While the ultimate outcome of these cases, and resolution of the issue, must await the Supreme Court’s decision, which is months’ away, public agencies are advised to be diligent in reviewing records requested under the Public Records Act for privileged material and other statutory exemptions the agency might wish to assert prior to release. The Newark School District decision placed much weight on the attorney-client privilege — a darling of the legal profession and the judiciary. Other privileges and statutory exemptions, such as the investigative records exemption, might not similarly carry the day in court. Further, certain PRA exemptions cover records that protect various individuals’ privacy interests, such as personnel and medical records. Disclosure of such records, whether inadvertent or not, could lead to a privacy right claim and litigation.

If you have questions about this opinion or how it will affect your municipality or agency, please contact the attorney author of this legal alert listed at right in the firm’s Public Policy and Ethics Compliance practice group or your BB&K attorney.

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