Public Entities Can Inadvertently Waive Privilege in Response to a Public Records Act Request

California’s Public Records Act (PRA) law requires public entities to make their public records open for inspection and copying. Environmental practitioners often use PRA requests as a tool to obtain information regarding a contaminated or a potentially contaminated site. In a recent case, Ardon v. City of Los Angeles, the California Court of Appeals found that a public entity can waive statutory privileges that it otherwise would have if it produces privileged documents in response to a PRA, even if inadvertently.

In Ardon, the plaintiff in litigation against the City of Los Angeles sought records under the PRA from the city concerning the subject matter of its complaint. After receipt of the records, Ardon’s counsel notified the city that it had obtained copies of some records that appeared to be privileged. The city responded by asserting that the documents had been inadvertency produced. The city demanded that Ardon return the documents to the city and agree not to rely upon the documents in any way. Ardon declined this request, asserting that the city had waived any privilege claim.

Citing California Government Code section 6254.5, the court found that in producing the documents, even inadvertently, the city waived any privilege claim. The city had argued that PRA requests are akin to discovery requests in litigated disputes. In the context of discovery requests, inadvertent production of privileged documents does not waive the privilege. The court found that unlike litigation discovery, a public entity waives any privilege if it discloses a privileged document pursuant to a PRA request, even if such disclosures are made inadvertently, by mistake or through excusable neglect. The court also rejected the city’s contention that the privilege should not be waived if a “low level employee” is the one that makes the disclosure, without authorization from the city counsel or city attorney.

For public entities responding to PRA requests, this case emphasizes the importance of ensuring that privileged documents are not inadvertently produced, especially in the litigation context. For litigants seeking documents from public entities, it highlights the benefits of obtaining documents through PRA requests, opposed to formal discovery requests.