Court of Appeal Says Privilege Removed Under PRA By Inadvertent Disclosure of Privileged Documents

If a privileged document is accidentally released to the public during compliance with a Public Records Act request, the privilege is waived and the document becomes a public record accessible to anyone, a California Appellate Court ruled this week. Previously, public agencies argued that inadvertent disclosure of privileged documents under the PRA does not waive the privilege. That argument was supported by case law that protects the privilege for documents inadvertently disclosed during the civil litigation discovery process. However, the precedent-setting appellate opinion, issued Wednesday, drew a clear distinction between the civil litigation discovery process and the PRA.

In Estuardo  Ardon v. City of Los Angeles, the City inadvertently disclosed privileged documents during a production of records in response to a request under the PRA made by an attorney representing Ardon, who sued the City over a telephone users tax. The records disclosed included documents covered 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 trial court agreed with the attorney and the 2nd District Court of Appeal, Division 6 in Ventura, affirmed.

Compliance with PRA requests must be carefully conducted and scrutinized, both to ensure complete disclosure, but also to ensure that material covered by legal privileges, is confidential, or is otherwise exempt from disclosure under the Act are not inadvertently disclosed.