Attorney-client privilege takes precedence over the constitutional right of citizens

By Gary W. Schons – Best Best & Krieger.

A Bay Area school district that inadvertently released attorney-client privilege documents following the resignation of its superintendent did not waive its disclosure exemption right granted under the California Public Records Act, a state appellate court has found.

In the decision, at odds with a previous appellate court ruling, the First District Court of Appeal found that attorney-client privilege takes precedence over the constitutional right of citizens to access certain public records.

Following the resignation of Newark Unified School District’s superintendent in May 2014, two community organizations and a local citizen made multiple records requests. According to the interim superintendent, the district began retrieving and reviewing records shortly thereafter.

In August, the organizations’ attorney emailed the District. Under pressure and threat of litigation if the records weren’t released within two days’ time, the school official met with the attorney to download the requested documents to a thumb-drive. The District also released the records on four CD’s and in three hard copies.

The interim superintendent realized later in the day that hundreds of non-reviewed pages were released. Among them, documents exempt from release covered under the attorney-client privilege.

The Public Records Act, enacted by the state Legislature in 1968, ensures the disclosure of government records upon request with some discretionary exemptions — primarily pertaining to personal privacy and litigation confidentiality.

Embedded in the Act, under section 6254.5, is the principle that once records are released — even if they qualify for an exemption — any exemption is forever waived; meaning the law doesn’t allow an agency to selectively choose whom to release documents to by forgoing an exemption in one record request while asserting it in another.

Upon discovery that exempt files were released, the interim superintendent contacted the attorney and the citizen who make the requests. He requested the recipients refrain from reviewing the documents and asked for their return. The attorney initially said she deleted the documents and encouraged other recipients to do the same. But the citizen refused. Following her refusal, the attorney followed suit. She contended the District had waived any attorney-client privilege upon the records’ release.

The District sought a restraining order — a move designated to force the return of the claimed privileged documents. The trial court concluded any privileges the District hoped to invoke were waived upon the records’ initial release. The judge did, however, grant the District a temporary restraining order to prevent further distribution of the records. The District was also granted six days to review and identify attorney-client privilege documents.

In the end, the trial court rejected the District’s claim of irreparable harm because the information in the documents had already been made public. The District appealed the ruling.

The three-judge appellate panel sided with the District. The court held the Public Records Act is intended “to require agencies to maintain an applicable exemption as to all members of the public or not at all.”

“When a release is inadvertent, no ‘selection’ occurs because the agency has not exercised choice in making the release. It was an accident. Accordingly, an inadvertent release does not involve an attempt to assert the exemption as to some, but not all, members of the public,” Associate Justice Sandra L. Margulies wrote.

While the court found the PRA waiver provision ambiguous, it was swayed by the attorney-client privilege itself. The court’s decision weighed heavily on the single privilege, but it is likely other privileges and statutory exemptions to the PRA would see a different outcome.

The decision is a departure from an earlier ruling from the state’s Second District Court of Appeal, which held the City of Los Angeles waived its attorney-client privilege when it inadvertently released documents regarding a complaint and subsequent lawsuit over the Telephone Users Tax. The California Supreme Court agreed to review the case.

It’s likely the Newark decision will follow the high court review route.

Answers to the question raised in both cases — whether or not the inadvertent release of public records waives the PRA’s attorney-client privilege exemption — are still months away. In the meantime, a diligent review of requested records by any public agency is fundamental to ensure exemptions and privileges are asserted prior to a records release.

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Schons_GaryGary W. Schons, the chair of Best Best & Krieger’s Public Policy and Ethics Compliance practice, provides strategic compliance solutions to public agencies, officials and private businesses so they may align with public scrutiny, standards and regulations. This group advises and represents clients on public integrity issues that involve political practices and updates clients on federal, state and local legislation as well as the Political Reform and Public Records Acts. He can be reached at gary.schons@b