FAC amicus brief: agency can’t take back records mistakenly released

FAC has filed an amicus brief in a case testing a local government agency’s power to take back records it has released to a requester under the CPRA. The Newark Unified School District, in releasing documents, mistakenly included records that were subject to the attorney-client privilege. The school district demanded return of the documents and the requester refused.

The central issue is whether the inadvertent release of privileged documents causes a “waiver” of the attorney-client privilege. That would not be the case for a release of records between parties in litigation—for example, in civil discovery. In that setting the lawyer for the party receiving the mistakenly released records is obligated, upon request, to return them. However, FAC’s amicus brief, backing the requester, argues that there is no obligation to return records disclosed pursuant to a CPRA request.

FAC’s amicus brief was prepared by attorney Kelly Aviles in Los Angeles. Joining FAC on this brief are the Los Angeles Times, Sacramento Bee, CNPA, the CBS and NBC TV affiliates in San Diego, inewsource.org, and CalAware.   -PS