On March 17, 2016, the California Supreme Court in Ardon v. City of Los Angeles, 2016 Cal. LEXIS 1572, Case No. S223876 (Mar. 17, 2016), held that the City of Los Angeles’s inadvertent disclosure of privileged documents in response to a Public Records Act request did not waive the privilege under Government Code section 6254.5.[1]
Facts
The plaintiff in the case, Estuardo Ardon, sued the City of Los Angeles (the “City”) several years before in a class action lawsuit that challenged the validity of a City tax. As part of that lawsuit, in March and September of 2007, the plaintiff requested that the City and the League of California Cities produce documents relating to the tax dispute. The City produced responsive documents and also provided the plaintiff with a “privilege log” listing 27 documents it was withholding on the basis that they were privileged. In March 2008, the superior court granted motions to quash filed by the City and the League of California Cities, on the basis that certain documents requested were privileged under the attorney-client privilege or the privilege for attorney work product.
The tax case was ongoing in January of 2013, when one of plaintiff’s attorney’s requested documents pursuant to the Public Records Act (the “PRA”) relating to the tax matter. An assistant city administrative officer provided the documents requested, including three documents that were held privileged by the superior court in the March 2008 order granting the motions to quash.
Upon receiving the privileged documents and recognizing them as such, the plaintiff’s attorney informed the City. The City requested that the attorney return them and agree not to rely on them. The plaintiff’s attorney refused, contending that their production had waived any claim of privilege. The City filed a motion in superior court for an order compelling the return of privileged material and to disqualify plaintiff’s counsel of record. The trail court denied the motion, holding that the production of the documents under the PRA had waived any privilege. The City appealed. The Court of Appeal affirmed on the same basis. So the City appealed again to the California Supreme Court.
Court Discussion & Holding
The California Supreme Court reversed the lower court ruling, holding that the City’s inadvertent disclosure of the privileged documents did not waive the privilege under Section 6254.5.
The court explained that under the PRA, the public is entitled to examine records held by state and local agencies, unless the record falls into one of the Act’s exemptions. Section 6254, subdivision (k), exempts from disclosure “[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code related to privilege.” The documents at issue were privileged under the attorney-client privilege (Evid. Code § 954) and the attorney work product privilege (Code Civ. Proc., § 2018.030). The plaintiff contended that the City waived the privileges by disclosing the documents, relying on 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 this chapter [the Public Records Act], to any member of the public, this disclosure shall constitute a waiver of the exemptions specified in Sections 6254, 6254.7, or other similar provisions of law.”
The question presented to the Ardon court was whether Section 6254.5 pertains only to intentional disclosures by state and local agencies or includes unintentional or inadvertent disclosures as well. The court recognized the statute was ambiguous regarding whether a disclosure must be intentional or can be inadvertent, so it reviewed the statute in context, with the legislative history. The court resolved the ambiguity in favor of the City, holding that Section 6254.5 applies only when the state or local agency knowingly and intentionally discloses privileged documents to one party, they must then make the documents available to any member of the public upon request.
How the Ardon Holding Effects Public Agencies
The holding in this case is favorable to public agencies who must respond, in some years, to hundreds if not thousands of PRA requests. Even well trained and competent staff members working under the pressure of these requests with limited resources may, from time to time, inadvertently release privileged documents as part of the responses. Under the holding in Ardon, if a public agency can demonstrate that these documents are privileged and were not knowingly and voluntarily disclosed by the agency, then the documents may not be used against the agency in litigation nor will the documents then be open to inspection by all other members of the public.
The above information is for general use and is not legal advice. This J&M Legal Alert is not intended to create, and receipt of it does not constitute an attorney – client relationship. Should you have any questions or require further clarification of the above, please contact Crystal V. Hodgson at (916) 771-0635 or cvh@jones-mayer.com.
[1] All subsequent statutory references are to the California Government Code unless otherwise stated.