On Thursday, March 17, 2016 the California Supreme Court issued a decision in support of the City of Los Angeles (“City”), ruling that the accidental disclosure of privileged documents under the California Public Records Act (“CPRA”) did not waive any privilege.  With agencies statewide receiving thousands of CPRA requests annually, the Court’s decision in Ardon v. City of Los Angeles protects public agencies from the inadvertent disclosure of privileged documents by city staff when fulfilling these requests.

Background

The Plaintiff in Ardon (“Plaintiff”) and the City were engaged in a legal battle for almost a decade over the validity of a tax levy on Los Angeles residents. In 2007, the Plaintiff requested documents as part of a discovery request pertaining to that litigation. In responding to the request, the City withheld the production of 27 documents under the attorney-client privilege and attorney work‑product doctrine.

In 2013, an attorney for the Plaintiff filed a CPRA request with the City, requesting documents related to the tax litigation. After fulfilling the request, the City was notified that it had disclosed documents that were privileged under the attorney-client privilege and work product doctrine.  When the City requested that the Plaintiff return the documents and that the documents not be relied on, the Plaintiff’s attorney refused, claiming the City’s disclosure waived its privilege claim under the CPRA. The City filed a motion in Superior Court demanding the documents be returned.

The Superior Court held that the City waived its privilege when it inadvertently disclosed the documents, and the Court of Appeals upheld the lower court’s ruling. In the City’s final appeal to the California Supreme Court, the Court reversed the lower courts in a unanimous decision.

Selective versus inadvertent disclosures

The Supreme Court found that the inadvertent disclosure of documents under the CPRA does not waive an agency’s right to withhold documents due to the attorney-client privilege and other exemptions under the CPRA. Government Code section 6254.5 establishes that, when an agency discloses a privileged document under the CPRA, the disclosure waives the exemption from disclosure of all other similarly privileged documents. In Ardon, the Court stated the purpose of section 6254.5 was to prevent public agencies from selectively disclosing privileged documents to some parties but not others. Under this rationale, the Court ruled that section 6254.5 was never meant to apply to inadvertent disclosures.

The decision only protects against truly inadvertent disclosures

In its ruling, the Court clarified that a public agency cannot recharacterize a disclosure as inadvertent in order to revive a privilege. In Ardon, the Court found that the City’s disclosures were truly inadvertent because the City refused to disclose the documents in 2007 under a valid privilege, and the City demanded the documents be returned immediately after learning of their disclosure.

Human error is inevitable in responding to voluminous CPRA requests, and this case protects agencies from accidental disclosure. Although public agencies can rely on Ardon to recover documents that were inadvertent disclosed, Ardon also requires public agencies to promptly request the return of those documents.  The best practice remains to thoroughly review all CPRA responses to avoid inadvertent disclosures in the first place.

For any questions regarding the Ardon decision, please contact Doug White at (916) 468-0947 or doug@whitebrennerllp.com, and Robin Baral at (916) 468-0576 or robin@whitebrennerllp.com.