Suppose a government agency releases records in response to a public records request; then, a few days later, discovers that one of the records is privileged under the attorney-client privilege, and demands that the requester return it (and all copies) ASAP. The California Supreme Court says, yes, the requester does have to return the privileged record.
The Court’s ruling came in the case of Ardon v. City of Los Angeles, issued on March 26. The plaintiff, Eduardo Ardon, filed a request under the California Public Records Act, seeking documents relevant to his litigation. The City, which had previously classified certain case-relevant records as privileged under the attorney-client privilege, unintentionally disclosed those records. The court held that the city, through its inadvertent disclosure, had not waived the attorney-client privilege, and ordered Ardon to return the privileged records.
The court’s ruling required an examination of section 6254.5 of the California Public Records Act, which states that ”whenever a state or local agency discloses a public record which is otherwise exempt from this chapter [the Public Records Act], to any member of the public, this disclosure shall constitute a waiver of the exemptions” in the PRA “or other similar provisions of law” (CA Gov Code Sec. 62554.5).
The court said that the statutory language was ambiguous with respect to inadvertent disclosure, and therefore needn’t be interpreted in favor of greater public access to information. –Silas Scheer