Agency Waived Privilege by Inadvertently Disclosing Documents in Response to PRA Request

Category: Client Update
Date: Jan 23, 2015 12:54 PM

Estuardo Ardon contends that the City of Los Angeles improperly collected a Telephone Users Tax (TUT).  In January 2013, Ardon's attorney submitted to the City a Public Records Act (PRA) request requesting documents pertaining to the City's tax practices.  The City identified approximately 53 documents and produced them to Ardon's attorney in February 2013. 

In April 2013, Ardon's attorney notified the City that two of the documents the City produced pursuant to the PRA appeared to be listed in a log provided by the City that identified documents the City was not producing due to privilege, and that a third document disclosed the contents of the first two documents.  The City responded that the documents were inadvertently produced and demanded that Ardon's attorney return the documents and agree not to rely on the documents in any way.  Ardon's attorney refused to return the documents contending that the City waived any claim of privilege by disclosing the documents. 

The City filed a motion to compel the return of the documents and to disqualify Ardon's attorney.  The trial court denied the motion and the City appealed.  The Court of Appeal affirmed.

Government Code section 6254, subsection (k) provides that records do not have to be disclosed under the PRA if they are the subject of a privilege created by the Evidence Code.  However, Section 6254.5 provides that whenever a state or local agency discloses to a member of the public a public record that is otherwise exempt from disclosure under the PRA, the disclosure constitutes a waiver of the exemptions provided in Section 6254 or other similar provisions of law. 

The City argued that statutory privileges are not waived if the protected document is "inadvertently disclosed."  The Evidence Code and the Code of Civil Procedure expressly protect documents that are inadvertently disclosed during litigation.  However, the Court held that disclosure under the PRA is not the same as disclosure during discovery.   The PRA states that, notwithstanding any other provision of law, a privileged document disclosed pursuant to the PRA is waived.  The PRA does not provide the disclosing party any right or mechanism to recover a document once it has been turned over.  Further, if the Legislature wanted to create an exception for inadvertently-disclosed documents, it could have done so.  For example, the Legislature created nine other exceptions, but none of the exceptions exempt inadvertent disclosure. Therefore, the Court of Appeal refused to imply an exception, and held that disclosures made inadvertently, by mistake, or as a result of excusable neglect are not exempted from the provisions of Section 6254.5, which waive any privilege that would otherwise attach to the documents.   

The City also argued that waiver can only occur if the clerk who produced the documents was specifically authorized to waive the applicable privilege.  The Court rejected this argument as well.  The PRA does not state that in order for privilege to be waived, the document must be produced by someone with authorization to do so, and the Court cannot rewrite legislation.  Furthermore, if the Court allowed such an exception, it would give agencies the power to make selective disclosures through "low level employees," thereby extinguishing the provision of the PRA intended to make such disclosures available to everyone. 

The City moved to disqualify Ardon's attorney on the basis that she violated the rules of professional ethics by making a PRA request.  The Court of Appeal agreed with the trial court that the attorney used the PRA for the purpose that the Legislature intended.  She did not seek privileged documents, but merely requested generic categories of public records.  She exercised her statutory and constitutional rights to petition her government regarding a matter of public importance, and did not violate any rules of professional conduct.  

Note:

This case emphasizes the importance of carefully reviewing each PRA request and ensuring that nothing is disclosed that the agency did not intend to disclose.  While an agency must notify the requesting party within 10 days whether it has disclosable records in its possession, it is not required to produce the requested records within that short time frame.  Rather, courts will require that documents be served within a "reasonable time."  Agencies may want to seek counsel to review the records for privileged material. 

Ardon v. City of Los Angeles (2014) 232 Cal.App.4th 175.

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