In Ardon v. City of Los Angeles, published March 17, 2016, the California Supreme Court reversed a decision by the lower appellate court, and resolved a dispute between the lower appellate courts (discussed in earlier posts in this blog) over whether a public entity's inadvertent disclosure of a privileged document in response to a California Public Records Act Request waives the privilege, allowing the recipient to keep and use the documents and disseminate them to others. The issue turned on interpretation of Government Code section 6254.5, part of the CPRA, which generally provides that "disclosure" of a public record waives any privilege. After examining the statute, its history, and the law on inadvertent disclosures in litigation, the Supreme Court interpreted "disclosure" to refer only to an intentional, voluntary and knowing disclosure. The statute's intent is to forbid public entities from intentionally disclosing a record to one person who requests it, and then refusing to disclose it to another. But it does not apply to inadvertent disclosures.
Here, the records the city disclosed to the attorney for a plaintiff suing the city had been withheld from discovery in the litigation, and listed in a privilege log. These facts indicated that the disclosure was inadvertent.
The court ordered published another case on the subject on which it had granted review, Newark Unified School Dist. v. Superior Court (July 31, 2015, A142963) __ Cal.App.4th __, __, [pp. 11-12]), review granted Oct. 14, 2015, S229112, ordered pub. Mar. 17, 2016.
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