California Supreme Court Gives Public Agencies Safety Net

A public agency’s inadvertent disclosure of privileged documents under the Public Records Act does not waive the privilege, the California Supreme Court has opined, reversing a lower court’s decision.

The Court’s opinion, issued Thursday, gives some much needed breathing room to public agencies struggling to make records “promptly available” while dealing with numerous, and often vague, requests for large numbers of documents. This decision ensures that public agencies will not be forever prejudiced by the accidental disclosure of exempt records.

The ruling comes in Ardon v. City of Los Angeles. The lawsuit stems from the City’s inadvertent disclosure of privileged documents in response to a request under the PRA made by an attorney representing Estuardo Ardon, who sued the City over a telephone users tax. The records disclosed included documents protected by the attorney-client privilege. The City demanded that the attorney return the documents and agree not to rely on them. The attorney refused, contending that the City had waived any claim of privilege by disclosing the records.

The City had argued that inadvertent disclosure of privileged documents under the PRA does not waive the privilege and supported its argument with case law that protects privileged documents inadvertently disclosed during civil litigation discovery. However, the California Appellate Court disagreed and drew a clear distinction between civil discovery and the PRA. The Supreme Court concluded that the PRA’s waiver provision applies to intentional, not inadvertent, disclosures of records protected by the PRA’s exemptions.

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