Help Public Agency Clients Avoid Inadvertent Disclosures

May 15, 2016

Public agencies breathed a collective sigh of relief following the California Supreme Court’s ruling in Ardon v. City of Los Angeles (2016) 62 Cal.4th 1176.  The Court found that public agencies do not waive exemptions when they inadvertently disclose confidential documents in response to a Public Records Act (PRA) request.  But some mistakes are more easily cured than others. Given the practical limits of the Court’s ruling, the Ardon decision best serves as a reminder to help public agency clients avoid disclosing confidential documents in the first place.  A few tips are offered below. 

Confidential Documents Withheld From Discovery Slip Through a PRA Response 

Public agencies receive numerous PRA requests each year and responsive documents can number in the thousands.  It is often unnecessary or simply impractical for agency counsel to review all of these documents to determine whether any should be withheld as privileged or confidential.  But as the facts in Ardon demonstrate, it is not unusual for confidential documents to slip through a PRA response.  Public agency counsel can help institute best practices up front to reduce these mistakes when requests are made.  

The Ardon case involved a lawsuit challenging the City of Los Angeles’ telephone users tax.  In responding to a discovery request, the City withheld two documents that were privileged attorney client communications and attorney work product.  Years later, a plaintiff’s attorney submitted a PRA request to the City for documents related to the tax.  City staff provided responsive documents, including the two documents previously withheld as privileged under the discovery request.  Plaintiff’s attorney informed the City that she believed the documents were confidential, but refused to return them, claiming the City had waived the privileges when it released the documents in response to her PRA request.        

Court Rules PRA’s Waiver Provision Does Not Apply to Inadvertent Disclosures 

The PRA provides that when a public agency releases a document that would otherwise qualify for an exemption from disclosure, the agency waives the exemption.  Gov. Code §6254.5.  The Court in Ardon ruled that this waiver provision only applies to voluntary disclosures.  Its purpose is to prevent an agency from deciding to disclose documents to some members of the public but withhold them from others.  If an agency makes a mistake and inadvertently discloses a confidential document, however, it will not be deemed to have waived any applicable privilege or exemption.     

But What Happens Next? 

The Court’s ruling that documents remain confidential after they have been inadvertently disclosed in response to a PRA request is helpful, but it only goes so far towards curing a mistake.  An agency may still want to get its confidential documents back—and limit the damage from their release.  This could be relatively easy or quite difficult depending on the circumstances.     

Because the City of Los Angeles was already involved in litigation with the attorney that received the privileged documents in Ardon, the City was able to file a motion in that case for an order compelling their return.  This option will not be available when disclosure is unrelated to ongoing litigation, however.  In those situations, public agencies will be able to rely on Ardon to write a stern letter demanding that an individual return confidential documents immediately.  But what if they refuse?  In that case, the agency could be forced to file a new lawsuit seeking a temporary restraining order to prevent dissemination of the documents and an injunction ordering their return.  The Court of Appeal upheld this approach in Newark Unified School Dist. v. Superior Court (2016) 245 Cal.App.4th 887, 909.      

Additionally, in this age of digital media, it may quickly become too late to prevent wide-spread disclosure of confidential documents.  In Ardon, this risk was minimized because the documents were provided to an attorney.  California courts have held that attorneys have specific ethical duties when they receive confidential documents by mistake: they must refrain from examining the documents any more than necessary, notify the sender, and return the documents upon request or seek guidance from the courts.  Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 817-18.   

Other members of the public will not be subject to such constraints.  Indeed, as the court in Ardon recognized, “if the inadvertent disclosure . . . is made to a nonlawyer, the public agency might never become aware of the mistake.”  Or the public agency may learn of the mistake from  news reports.  When confidential documents have been widely distributed to third parties, the agency is unlikely to be able to obtain effective relief in court.       

Best Practices To Avoid Disclosing Confidential and Exempt Documents 

Because the accidental release of confidential documents can result in irreparable damage, including damage to third parties, and because securing their return can be expensive or impossible, the Ardon case serves as a good reminder to make sure public agency clients (and attorneys) have reasonable procedures in place to avoid mistakes in the first place. Consider the following tips:   

• Get in the habit of marking exempt documents “CONFIDENTIAL.”  In sensitive situations, consider adding “CONFIDENTIAL” to an e-mail subject line or fist thing in the body of the e-mail.  Don’t assume that the confidential warning that automatically appears at the bottom of e-mails will always be sufficient to screen them.  And don’t rely on a confidential warning in an e-mail to apply to any attached confidential documents.  Mark the attachments themselves.   
• Develop a standard PRA response process.  Prepare a short reference sheet that identifies the steps to respond to a PRA request and who is responsible for each step.  The standardized process will streamline response times and help reduce the need to consult with attorneys.  
• Designate an individual (or two or three) responsible for responding to PRA requests.  This will help ensure that responses are timely and not made by staff without the context or knowledge to recognize confidential or exempt documents.  Train designated staff in common exemptions.  The League of California Cities publishes a helpful guide to the PRA with a summary chart of commonly used exemptions.   
• Consult with agency counsel.  Tricky questions may arise about whether a given exemption applies and how the PRA should be interpreted or applied.  Such questions may be best answered by agency counsel. 
• Post a PRA request form on the agency’s website.  The form will direct PRA requests to the right staff member for coordinating response.  An agency cannot insist that a PRA request be made in writing, but providing a form makes it more likely that members of the public will submit focused written requests. 

For more information, please contact SMW attorney Heather Minner. 

This article is intended for information purposes only and is not legal advice. This article is not intended to be a source of solicitation. This article is intended, but is not promised or guaranteed, to be correct, complete, and up-to-date. This article does not constitute a guarantee, warranty, or prediction regarding the outcome of any legal matter. Readers should not act on the information provided in this article without seeking professional legal counsel.