Government Liability Update

Circuit Precedent Did Not Clearly Establish That Accessing Juvenile Records without a Court Order Violated the Fourth Amendment

In Nunes v. Arata, Swingle, Van Edmond, & Goodwin, published December 29, 2020, the 9th Circuit Court of Appeals reversed a district court order denying a motion to dismiss brought by defendant county counsel and an outside law firm for the county that was based on qualified immunity.  The county separated the plaintiffs' children from plaintiffs during an investigation of suspected child abuse.  The plaintiffs sued the county, challenging the separation.  The outside counsel represented the county during the separation case, during that litigation, the defendant county counsel provided the outside firm with the children's juvenile records, without first obtaining an order from the juvenile court per Welfare & Institutions Code section 827.  County counsel believed that section 827 did not require court authorization to access the records and disclose them to the county's outside counsel.  The plaintiffs also alleged that the records contained information protected by HIPAA.  The plaintiffs sued the county, the county counsel, and the outside firm under 42 U.S.C. section 1983.  They alleged that the defendants violated their state and federal constitutional rights to privacy.  The district court granted the motion to dismiss as to the Fourteenth Amendment, but ruled that the defendants violated a right to privacy in juvenile records was clearly established by Gonzalez v. Spencer, 336 F.3d 832 (9th Cir. 2003), because the majority opinion found a viable claim under the Fourth Amendment when an attorney defending a county wrongly accessed a juvenile case file in violation of section 827, and the dissenting opinion clarified the Fourth Amendment right implicated by the violation.  The defendants brought an interlocutory appeal from denial of qualified immunity.

The 9th Circuit ruled that Gonzalez did not clearly establish a Fourth Amendment violation.  Gonzalez was a split decision in which the per curiam majority wrote a two-page opinion.  The majority did not identify a specific constitutional right or conduct a constitutional analysis.  Instead, the opinion held that if the attorney in Gonzalez violated a constitutional rights, the plaintiff was entitled to at least nominal damages and the attorney was not entitled to qualified immunity.  That the constitutional right at issue was the Fourth Amendment could be gleaned only from the dissenting opinion.  A strong indication that Gonzalez did not clearly establish any constitutional privacy rights was that district courts did not treat Gonzalez as establishing a constitutional violation.  Such an "opaque" opinion as Gonzalez, which does not explain the origin, nature, and scope of the right at issue, cannot place the constitutional issue "beyond debate."  It therefore cannot so clearly establish the law that every reasonable official acting as the defendants did would have known they were violating the plaintiffs' rights.  The court did not decide whether the Constitution provides a privacy rights in juvenile records.  A concurring judge opined that an en banc court should reconsider Gonzalez and resolve whether a constitutional right to privacy exists in juvenile records.

 

CANRA Requirement That Therapists Report Patients for Accessing Child Pornography Is Constitutional

In Matthews v. Harris, published January 9, 2017, the Second District Court of Appeal, Division 2 affirmed the dismissal on demurrer of a lawsuit that facially attacked provisions of the Child Abuse and Neglect Reporting Act. The provisions attacked require therapists and counselors to law enforcement or child welfare agencies patients who disclose they have developed, downloaded, streamed or accessed child pornography.  The plaintiffs, mandated reporters under CANRA, asserted that CANRA violated their patients' right to privacy under the 14th Amendment of the U.S. Constitution and Article 1, § 21 of the California Constitution.  The appellate court ruled that the plaintiffs' patients have no legally protected privacy interest in disclosing that they had accessed child pornography, a crime.  Under the law, the therapist-patient privilege does not apply to disclosure of such information.  And the state's countervailing interest in discovering and protecting sexually exploited children justifies any invasion into the patients' privacy on this subject.

Outside Counsel's Billing Invoices for Ongoing and Active Litigation Not Subject to CPRA

In Los Angeles County Board of Supervisors v. Superior Court (ACLU), published December 29, 2016, a divided California Supreme Court reversed the lower appellate court's ruling that a public entity's outside counsel's billing invoices were categorically excluded from the California Public Records Act as attorney-client privileged communications.  The ACLU had sought invoices specifying the amount any outside firm had billed the petitioner county for defense in nine specified lawsuits.  The county agreed to produce redacted invoices from three lawsuits no longer pending, but declined to produce invoices in the six pending lawsuits.  Among its grounds was that they were privileged attorney-client communications that contained work product, were therefore privileged under the Evidence Code, and were therefore exempt from the CPRA under Government Code section 6254(k).  The appellate court issued a writ petition reversing the decision, and holding that all billing invoices are protected attorney-client communications.

The Supreme Court split 4-3 on the question of whether the invoices were protected from the CPRA.  The majority held that the contents of an attorney's invoice to a client are privileged only if they either communicate information for the purpose of legal consultation, or risk exposing information that was communicated for such a purpose. The majority further held that the latter category includes any information in any invoice that reflects work in active and ongoing litigation.  The majority reasoned that invoices in themselves are not protected communications, because they are submitted for the purpose of getting paid rather than for purposes that are the "heartland" of attorney-client privilege: information conveyed for the purpose of legal representation.  But they can contain information conveyed for that purpose.  Because invoices in ongoing and pending litigation pose too great a risk of disclosing the substance of legal consultation and strategy.  But information such as cumulative totals of billing for long-concluded litigation pose less of a danger of disclosing the substance of legal consultation.

The dissent opined that the attorney-client privilege applies to all attorney-client communications in the course of a representation, regardless of content; and that the passage of time does not affect the privilege.

 

Inadvertent Disclosure of Privileged Document in Response to California Public Records Act Request Does Not Waive Privilege

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.

Under California Public Records Act, Person May Seek Production of Documents Person Already Has; Public Interest in Response to Whistleblower Complaint Outweighs Privacy Rights in Records

In Caldecott v. Superior Court (Newport-Mesa School Dist.), published December 21, 2015, the Fourth District Court of Appeal, Division 3, issued a writ reversing a trial court's decision denying production of documents under the California Public Records Act.  The petitioner was the former executive director of human resources for the real party school district.  While he held that position, the petitioner filed a complaint against the district superintendent.  The petitioner alleged that the complaint alleged that the superintendent created a hostile work environment, and also alleged improprieties with money.  The district alleged that the complaint discussed only personnel matters. The school board responded in writing that it would take no action on the complaint.  Shortly afterward, the superintendent terminated the petitioner's employment, and the school board approved the action.  The petitioner sought production of the documents under the CPRA.   The trial court denied the petitioner's writ petition, on the ground that the petitioner already had the documents.

The appellate court held that the fact the petitioner already had the documents was not a ground for denying the request.  The motive of a person requesting documents under the CPRA is irrelevant.  Further, the petitioner sought the documents so that he could disseminate them without concern that the district would object.  The appellate court ruled that the documents were personnel documents, requiring the court to balance the privacy interest in the documents against the public interest in their disclosure.  Since the documents concerned allegations of conduct by a high-ranking official, the appellate court (after an in camera review) determined that the public interest in them outweighed privacy.  The court overruled the official information privilege objection to their production, ruling that production would not affect internal deliberation.  It directed the trial court, on remand, to review the documents for attorney-client privileged matters, which would not be subject to production.  It awarded the petitioner his attorney fees.

League of Cities Is Entitled to In Camera Review to Determine Whether E-mails Between City Attorney and League Are Privileged from Production under California Public Records Act

In League of California Cities v. Superior Court (San Diegans for Open Government), published October 28, 2015, the Fourth District Court of Appeal, Division 1 issued a writ of mandate directing the trial court to vacate its order directing production of e-mails between the San Diego City Attorney and the Legal Advocacy Committee of the League of California Cities in response to the real party's California Public Records Act request; and directing the court to examine the e-mails in camera to determine whether they are protected by attorney-client or work product privileges.

The court interpreted the statute permitting review of trial court decisions under the CPRA via writ petition as allowing the League to petition for writ review, even though it was not a party to the trial court proceedings.  Although the statute permits "parties" to petition for writ review, the court interpreted the statute's definition of "party" to include those with a beneficial interest in writ review.  The court further concluded that the records were public records under the CPRA, subject to production unless an exception applied.  The court found substantial evidence to support the trial court's conclusion that the e-mails were not protected by attorney-client privilege or work product.  But the City had requested in-camera review of the e-mails, and the trial court had refused it.  The court ruled that the City had a right to in-camera review on request, and that the court should review the e-mails to determine whether they were privileged.

Inadvertent Disclosure of Privileged Documents in Response to Public Records Act Request Does Not Waive Privilege (Issue Before California Supreme Court)

In Newark Unified School District v. Superior Court (Brazil), published July 31, 2015, ordered published again March 17, 2016 the First District Court of Appeal, Division 1, issued a writ of mandate directing a trial court to vacate its order denying a temporary restraining order against distributing documents the district inadvertently distributed in response to a California Public Records Act request.  The considered whether Government Code section 6254.5, which prescribes that "disclosure" of a privileged document waives the privilege, applied to inadvertently-produced documents.  The court decided that it did not.  The legislature intended section 6254.5 to prevent public entities that released documents to one requester from denying the same documents to other requesters.  Further, interpreting "disclosure" as not applying to an inadvertent release of documents prevented the statute from conflicting with Evidence Code section 912, which holds that an inadvertent release of privileged information does not waive the privilege.

This holding conflicts with the one in Ardon v. City of Los Angeles (2014), formerly published at 232 Cal.App.4th 175, now depublished by grant of review by the California Supreme Court.  The Supreme Court will likely take up review of this case as well, to determine which interpretation of the Act is correct.

Update:  On October 14, 2015, the California Supreme Court granted review of this case, depublishing it.  Further action in the case is deferred until the Ardon case is decided.  On March 17, 2016, the California Supreme Court ordered the case published.

State Law Privileges Do Not Govern Admissibility of Evidence of Settlement in Federal Court on Mixed Federal and State Claims

In Wilcox v. Maricopa County, published June 2, 2014, the 9th Circuit Court of Appeals affirmed a district court order granting a motion to enforce against an Arizona county a settlement agreement reached during mediation, in an action alleging both federal and state law causes of action.  The plaintiffs asserted that a mediator hired by the County settled the plaintiffs' claims (and those of several other plaintiffs arising out of the same circumstances) and confirmed the settlement in an e-mail.  The district court held an evidentiary hearing at which the directing county manager (authorized by resolution to resolve the claims) testified that he had authority to settle the claims, had authorized the mediator to communicate the settlement offer, was aware the mediator had communicated the offer, and believed a binding settlement was entered into.  The district court granted the motion. 

The 9th Circuit affirmed.  It rejected the county's argument that the manager's testimony and the e-mails were privileged under Arizona's mediation privilege.  Under the Federal Rules of Evidence, federal common law governs claims of privilege, but state law goerns privilege regarding a claim or defense governed by state law.  Since the same evidence related to the federal and the state claims asserted in the action, state law did not bind the federal court on privilege.  Because the county stated it was not contending that federal common law created a mediation privilege, the court declined to rule on whether such a privilege exists.