In January, I wrote about the Second Appellate District case of Ardon v. City of Los Angeles. In Ardon, the court found that a public entity can waive statutory privileges that it otherwise would have if it produces privileged documents in response to a California Public Records Act (PRA) request, even if inadvertently. Recently, the First Appellate District in Newark Unified School District v. Superior Court came to the opposite conclusion in holding that a public agency cannot inadvertently waive attorney-client and work product privileges. These contradictory holdings have created what is known as a “split of authority.”
In Newark Unified School District, some parties requested documents from the Newark Unified School District (District) under the PRA. The PRA requires public entities to make their public records open for inspection and copying upon request. Within hours of delivering the documents in response to the request, the District’s interim superintendent discovered that the District had inadvertently included over one-hundred documents that it contended were subject to the attorney-client or attorney work product privileges. The District immediately sent e-mails to the recipients of the documents requesting that they return the documents.
Citing California Government Code Section 6254.5, the document recipients argued that the District waived the privileges by its inadvertent release of the documents. The court in Ardon had previously cited this provision in finding that a public entity waives any privilege if it discloses a privileged document pursuant to a PRA request, even if such disclosures are made inadvertently, by mistake or through excusable neglect. However, the court in Newark Unified School District concluded that the District did not inadvertently waive the privileges.