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Accidental Release of Attorney-Client Documents

Public agencies often face the unenviable task of reviewing and producing hundreds or thousands of pages in response to Public Records Act (“PRA”) requests.  Not surprisingly, records occasionally slip through the cracks and, sometimes, these documents are protected by the attorney-client privilege.

Government Code section 6254.5 states that whenever an exempt record is to be disclosed to a member of the public – includingrecords protected by the attorney-client privilege – anyexemptions are waived.  Until recently, there was a conflict in the California courts as to whether the accidental release of an attorney-client record constituted a “disclosure” under Section 6254.5 such that the privilege could no longer be claimed.

In Ardon v. City of Los Angles, the City of Los Angeles inadvertently released certain attorney-client documents in response to a PRA request.  When it discovered the release, it filed a lawsuit to recover them, but the Court held that the privilege had been waived.  The exact opposite conclusion, under the same circumstances, was reached less than a year later, in Newark Unified School District v. Superior Court.  Both cases were appealed to the California Supreme Court.

The Supreme Court upheld Newark.  In doing so, the Court determined that the “disclosure” of a record – suchthat the attorney-client privilege is waived under Government Code section 6254.5 – doesnot occur when the release is inadvertent.  As a result, inadvertent release of attorney-client privileged records does not waive the privilege, and public agencies may commence actions to recover such records.

For public agencies inundated by PRA requests, the decision is promising.  Although the case dealt only with attorney-client privileged records, its reasoning appears equally applicable to the inadvertent disclosure of other sensitive records, such as those touching on employee or student privacy.

Nothing in this post is intended to provide legal advice.  If you have any questions about these cases, the Public Records Act, or any other issue, please contact Kingsley Bogard LLP.

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