On March 17, 2016, the California Supreme Court resolved an important case regarding the California Public Records Act, ruling unanimously that the inadvertent release of confidential documents does not waive the attorney-client and attorney work product privileges. Ardon v. City of Los Angeles, 62 Cal.4th 1176 (2016). The privileges are only waived when the disclosure of otherwise confidential public records is intentional.
The Ardon case arose out of a class action lawsuit filed against Los Angeles challenging the validity of certain taxes and seeking a refund of taxes already collected. In responding to the plaintiff’s Public Records Act request, a city administrative officer disclosed 53 records, three of which were privileged. The City informed the attorney the that the three documents were privileged and had been produced inadvertently, and requested that the attorney return them and not rely on them. After the attorney refused to return the documents on the grounds that their disclosure had waived the privileges, the City filed a motion to compel the return of the documents. The trial court denied the motion and the Second District Court of Appeal affirmed.
While review was pending in the California Supreme Court, the First District Court of Appeal decided Newark Unified School District v. Superior Court, 239 Cal.App.4th 33, 45 (2015), ruling that an inadvertent release of confidential documents does not waive the privileges. The Newark decision thus allowed the California Supreme Court to resolve an important split in the appellate courts.
Ardon hinged on the meaning of Government Code section 6254.5, which provides that “[n]otwithstanding any other provisions of law, whenever a state or local agency discloses a public record which is otherwise exempt from [the Public Records Act], to any member of the public, this disclosure shall constitute a waiver of the exemptions...
