Metropolitan News-Enterprise


Monday, August 3, 2015


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Court of Appeal Rules:

Government Documents Inadvertently Released Still Privileged

Provision of Public Records Act as to Waiver of Privilege Is Found Inapplicable


By a MetNews Staff Writer


The First District Court of Appeal on Friday created an exception to the statute providing that where documents are exempt from release in response to a Public Records Act request, but are nonetheless provided, the exemptions have been waived.

The statute, Government Code §6254.5, was not intended by the Legislature “to apply to an inadvertent release of privileged documents,” Acting Presiding Justice Sandra Margulies said in an opinion for Div. One. The ruling comes in a case in which documents were supplied which were covered by the attorney-client privilege and/or work product privilege.

Sec. 6254.5 provides:

“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.”

A similar provision of law is §6254 which exempts from release “[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.”

Privileged Documents Released

Through inadvertence, the Newark Unified School District in Alameda County on Aug. 22, 2014, downloaded onto attorney Jennifer R. Snyder’s thumb drive more than 100 privileged documents, and later that day, released the documents to others on four CD’s and three hard copy sets.

Realizing its error that evening, it asked that the documents be returned.

The request was spurned. Snyder—one of two individuals who requested documents and attorney for a citizens’ group—cited §6254.5.

The district obtained a temporary restraining order to block dissemination of the documents. It was to expire at noon on Sept. 16, 2004, unless the Court of Appeal were to enter a stay.

Alameda Superior Court Judge Evelio Grillo, who issued the TRO, had second thoughts about it. On Sept. 9, he determined that the privilege had been waived by providing the documents.

He pointed to various cases that say that once matter is in the public domain, confidentiality is lost.

“In DVD Copy Control Ass’n Inc. v. Burner (2004) 116 Cal.App.4th 241, 254,” he wrote, “the Court of Appeal addressed a similar effort to ‘lock the barn door after the horse is gone’ and reversed the trial court’s grant of a preliminary injunction.”

Trial Court’s Conclusion

Grillo declared:

“The court finds that the School District has not demonstrated that issuance of a temporary restraining order will prevent irreparable harm and has not demonstrated a reasonable probability of success on the merits. The court is aware that the attorney-client privilege is important.

“….The provision for waiver under Gov. Code 6254.5 does not, however, have an exception for accidental or inadvertent disclosure. The court cannot add to or alter the word of the statute.

“The orders of August 27, September 2, and September 3, 2014 remain in effect. The TRO remains in effect until Tuesday September 16, 2014 at 12:00 noon.”

On Sept. 12 of that year, the district filed a petition for a writ of mandate and a request for an immediate stay. Three days later, the appeals court ordered that “pending consideration of this petition for writ of mandate and further order of this Court, the temporary restraining order enjoining real parties in interest from reviewing or distributing the documents as to which the District has asserted a privilege or protection in the log it served on September 2, 2014, shall remain in effect.”

On Oct. 30, 2014, it issued an order to the Superior Court to show cause why a writ should not be issued. On Friday, it was.

By then, Snyder and two citizens’ groups were no longer real parties in interest, leaving Elizabeth Brazil as the sole real party. However, several media groups had been granted amicus curiae status and argued that the documents were now in public domain.

Two Plausible Interpretations

Margulies wrote:

“We conclude the language of section 6254.5 is reasonably susceptible to the meanings urged by both parties and examine the legislative history of the statute. That history demonstrates conclusively the Legislature’s intent in enacting section 6254.5 was to prevent public agencies from disclosing documents to some members of the public while asserting confidentiality as to other persons. Waiver as a result of an inadvertent release, while not necessarily inconsistent with the Legislature’s intent, was not within its contemplation. In order to harmonize section 6254.5 with Evidence Code section 912, which has been construed not to effect a waiver of the attorney-client and work product privileges from an inadvertent disclosure, we construe section 6254.5 not to apply to an inadvertent release of privileged documents.”

Evidence Code §912 provides that a privilege “is waived...if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone.”

The jurist said that “the statute’s declaration that any uncoerced “disclosure” creates a waiver, courts have consistently held that inadvertent disclosures do not.”

She declared that the purpose of §6254.5 was to codify the holding in Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645 that governmental agencies may not selectively disclose documents, explaining:

“The statute, in essence, was intended to require agencies to maintain an applicable exemption as to all members of the public or not at all.

“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.”

Margulies rejected the contention that §6254.5 should be read in such a way as to promote the goal of Art. I, §3(b)(1) of the state Constitution which declares: “The people have the right of access to information concerning the conduct of the people’s business....”

She said the need to reconcile §6254.5 with §912 “takes precedence over the interpretive directive of section 3 of article I of the Constitution.”

The case is Newark Unified School District v. Superior Court, Brazil RPI, 2015 S.O.S. 3907.

The decision is contrary to that reached on Dec. 10 by Div. Six of this district’s Court of Appeal. There, Acting Justice Jeffrey Burke, a judge of the San Luis Obispo Superior Court, wrote:

“We hold that disclosures pursuant to the [Public Records Act] that are made inadvertently, by mistake or through excusable neglect are not exempted from the provisions of section 6254.5 that waive any privilege that would otherwise attach to the production.”

However, on March 11, the California Supreme Court granted review in the case, nullifying the Court of Appeal’s decision.


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