On July 31, 2015, the Court of Appeal for the First Appellate District, Division One, filed a 23-page published opinion holding that the inadvertent disclosure of attorney-client privileged and work product protected documents by a public agency in response to a Public Records Act (“PRA”) request did not waive the privilege. Newark Unified School District v. The Superior Court of Alameda County (Elizabeth Brazil, Real Party in Interest) (2015) ___ Cal.App.4th ___, 2015 WL 4594095. While the PRA request and responses at issue were not made in the context of litigation by the requesting party against the responding public agency, the Court’s holding has implications for that scenario, which is a common occurrence in CEQA and other litigation against public agencies.

The Case’s Factual Background and Procedural Posture

Various individuals and groups made PRA requests to the Newark Unified School District (“District”), which inadvertently included in its response over a hundred documents it contends are protected by the attorney-client or attorney work product privileges. Within hours of its release of the documents electronically and in hard copy, the District’s interim supervisor discovered the error – i.e., that several hundred pages of documents, including privileged documents, had been inadvertently produced without review for privilege, exemption or confidentiality – and sent an email to the requesting parties informing them of the inadvertent production, and requesting that the documents not be reviewed and that they be returned to the District. When requesting parties refused to comply, claiming any privileges had been waived by the disclosure under Government Code § 6254.5, the District filed an action for injunctive relief seeking the return or destruction of the privileged documents.

The trial court initially granted a TRO preventing further dissemination of the documents pending the District’s review and preparation of a privilege log, but ultimately sided with real parties in finding any privileges had been waived by disclosure. The District sought a writ of mandate from the Court of Appeal, which granted a stay by continuing the TRO in effect and issued an order to show cause why a writ should not issue.

The Legal Issues, And The Court of Appeal’s Holding and Rationale

Per the Court of Appeal: “The issue squarely presented… is whether, by operation of section 6254.5, a public agency’s inadvertent release of privileged documents in response to a PRA request waives the otherwise applicable exemption from disclosure based on the attorney-client and work product privileges.” The Court held it did not, and issued a writ.

As background, Section 6254 exempts from disclosure in response to a PRA request “[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 relating to privilege.” The statute at issue in the case, Section 6254.5, states in pertinent part: “Notwithstanding any other provisions of law, whenever a state or local agency discloses a public record which is otherwise exempt from this chapter, 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 Court found the term “disclosure” in Section 6254.5 to be ambiguous as to whether it required an “intentional act” or also included “accidents” or “inadvertent releases” of documents. This ambiguity was reflected in the “well-accepted [judicial] interpretation” of Evidence Code § 912 “to exclude waiver based on inadvertent disclosures.” Turning to extrinsic aids to determine legislative intent under well-established rules of statutory construction, the Court held the intent of § 6254.5 was wholly unrelated to the inadvertent release of privileged documents. Instead, that statute was intended to prohibit selective disclosure of confidential information by codifying the holding of Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645. Per the Court: “While finding a waiver of the privilege exemption as to documents inadvertently released is not inconsistent with this purpose, it is outside the Legislature’s central concern…. The inadvertent release of privileged documents thus appears to be an example of “‘“ a thing… within the letter of the statute and yet not within the statute, because not within… the intention of its makers.’”’” (Citation omitted.)

The Court’s interpretation of “disclosure” as contained in Section 6254.5 to exclude waiver by inadvertent disclosure was ultimately driven by the need to reconcile that statute and avoid a conflict with case law interpretation of the same term as used in Evidence Code § 912. It observed: “[J]udicial interpretation of Evidence Code section 912 dating back nearly two decades holds that the inadvertent disclosure of documents covered by these privileges does not effect a waiver.” (Citing State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 653.) Adopting the same interpretation for Government Code § 6254.5 avoided any conflict and did “no violence to the objectives of the Legislature in enacting [§]6254.5” since “[g]enuine selective disclosure of privileged documents by public agencies would continue to result in a waiver of the exemption from disclosure of these documents as to all members of the public.”

Implications of the Decision For CEQA And Other Land Use Litigation

In discussing several policy grounds also supporting its interpretation, the Court of Appeal observed:

In addition, an interpretation favoring waiver leaves the PRA open to manipulation. It is not unusual for PRA requests to be made by counsel opposing a public agency in litigation as an alternative or supplement to ordinary discovery. An attorney who receives inadvertently produced documents during discovery has an ethical duty to refrain from unnecessary review of the documents, notify opposing counsel, and return the documents upon request. [citation.] If mere inadvertent release of privileged documents under the PRA creates a waiver of the attorney-client and attorney work product privileges, however, counsel receiving such documents are presumably under no similar ethical duty to refrain from review and return them, since the documents are no longer privileged by the time they come into the attorney’s possession. These differing consequences encourage attorneys litigating against a public agency to accompany every discovery request with an identical PRA request, merely on the chance that an inadvertent production of privileged documents should occur. This is just the type of “‘gotcha’ theory of waiver” decried by [a prior decision] in concluding inadvertent disclosures do not result in a waiver under Evidence Code section 912.” [citation]

CEQA and land use litigation attorneys are no doubt familiar with the routine strategy of petitioners’ counsel to elect to have petitioner prepare the administrative record of proceedings itself while simultaneously sending the respondent public agency a PRA request asking it to produce the “administrative record,” or broad categories of documents tracking CEQA’s statutory language defining the contends of the record. In a prior post, I mentioned my view of this as a litigation abuse intended to undermine CEQA’s scheme regarding which party bears the costs of record preparation, and suggested reform was in order. See, “How CEQA’s Administrative Record Preparation Process Could Be Reformed By Eliminating CEQA Petitioners’ Statutory Option To Prepare The Record,” by Arthur F. Coon, posted February 11, 2015. The Court of Appeal’s decision here highlighted – and, helpfully, foreclosed – another potential abuse of the PRA request process when used in connection with CEQA and land use (and other civil) litigation, namely the potential trap of inadvertent waiver from a plaintiff’s strategic duplicative use of an expedited, extra-judicial PRA process to supplement either civil discovery or the administrative record as prepared through the usual writ litigation process.