Legal Alerts Mar 18, 2016

Inadvertent Disclosure Does Not Waive Exemptions/Privileges Under the PRA

California Supreme Court Gives Public Agencies Safety Net

Inadvertent Disclosure Does Not Waive Exemptions/Privileges Under the PRA

A public agency’s inadvertent disclosure of privileged documents under the Public Records Act does not waive the privilege, the California Supreme Court has opined, reversing a lower court’s decision.

The Court’s opinion, issued Thursday, gives some much needed breathing room to public agencies struggling to make records “promptly available” while dealing with numerous, and often vague, requests for large numbers of documents. This decision ensures that public agencies will not be forever prejudiced by the accidental disclosure of exempt records.

The ruling comes in Ardon v. City of Los AngelesThe lawsuit stems from the City’s inadvertent disclosure of privileged documents in response to a request under the PRA made by an attorney representing Estuardo Ardon, who sued the City over a telephone users tax. The records disclosed included documents protected by the attorney-client privilege. The City demanded that the attorney return the documents and agree not to rely on them. The attorney refused, contending that the City had waived any claim of privilege by disclosing the records.

The City had argued that inadvertent disclosure of privileged documents under the PRA does not waive the privilege and supported its argument with case law that protects privileged documents inadvertently disclosed during civil litigation discovery. However, the California Appellate Court disagreed and drew a clear distinction between civil discovery and the PRA. The Supreme Court concluded that the PRA’s waiver provision applies to intentional, not inadvertent, disclosures of records protected by the PRA’s exemptions.

For more information on the this opinion and how it may affect your agency, please contact one of the authors of this Legal Alert listed to the right in the firm’s Municipal Law practice group, or your BB&K attorney.

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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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