MARGULIES, Acting P. J. —
Current and former real parties in interest Jennifer Snyder, Elizabeth Brazil, Newark Advocates for Change, and Newark Citizens for Change requested documents under the California Public Records Act (Gov. Code,
The District filed an action against real parties in interest seeking return or destruction of the privileged documents. The trial court initially granted a temporary restraining order preventing their dissemination, but it ultimately agreed with real parties in interest, holding that section 6254.5 effected a waiver of any claim of confidentiality with respect to the privileged documents. Before the temporary restraining order expired, the District filed a petition for a writ of mandate in this court. We continued the restraining order and issued an order to show cause.
We now reverse. We conclude the language of section 6254.5 is reasonably susceptible to the meanings urged by both parties and examine the legislative history of the statute. That history demonstrates conclusively the Legislature's intent in enacting section 6254.5 was to prevent public agencies from disclosing documents to some members of the public while asserting confidentiality as to other persons. Waiver as a result of an inadvertent release, while not necessarily inconsistent with the Legislature's intent, was not within its contemplation. In order to harmonize Government Code section 6254.5 with Evidence Code section 912, which has been construed not to effect a waiver of the attorney-client and work product privileges from an inadvertent disclosure, we construe section 6254.5 not to apply to an inadvertent release of privileged documents.
The District filed a complaint for injunctive relief (complaint) against real parties in interest in August 2014. The complaint alleges Snyder is an
Promptly after filing the complaint, the District sought a temporary restraining order (TRO) to prevent further disbursement of the documents and an order to show cause regarding a preliminary injunction. The application was supported by a declaration from the interim superintendent of the District, Timothy Erwin, explaining the circumstances. According to Erwin, the District began retrieving and reviewing the documents requested by real parties in interest upon receiving the PRA requests in June. On August 20, the District received an e-mail from Snyder threatening legal action if the documents were not produced in two days' time. Thinking the review had been completed, Erwin agreed to meet Snyder's deadline by downloading the responsive documents onto a thumb drive she was to supply. On the afternoon of August 22, the download occurred as agreed. In addition, the District "released to others four CD's and three hard copy sets."
Later that day, Erwin "became aware that several hundreds of pages" of the downloaded documents "had not yet been reviewed for exemption, privilege and/or confidentiality, including attorney-client privileged communications" and had been "inadvertently produced." At 7:15 p.m. that night, Erwin sent an e-mail to all persons listed on the PRA requests as seeking the documents, including Snyder and Brazil, informing them of the inadvertent production. The e-mail requested the recipients refrain from reviewing the documents and return them to the District. Snyder initially responded with an e-mail stating she had deleted the documents and encouraging others to do the same. Brazil, however, refused to comply. Soon thereafter, Snyder took the same position, contending the release of the documents had waived any privilege by operation of section 6254.5, which states the "disclosure" of a public record "to any member of the public" constitutes a waiver of otherwise applicable exemptions from disclosure.
In response to the District's request for a TRO, Snyder submitted an unsworn opposition. According to the opposition, the PRA requests sought information about the resignation of Erwin's predecessor, Dave Marken. Some members of the community believed the District's governing board had
Upon receiving the downloaded documents, Snyder's opposition stated, she created an online folder for sharing the documents with her clients. After receiving a message regarding the inadvertent production, and prior to having reviewed the documents herself, Snyder deleted the online folder. After conducting legal research, however, she concluded the District's production constituted a waiver of any applicable privileges under section 6254.5, and she recreated the online folder.
The unsworn opposition argued the requested orders should be denied in part because "[t]he records have already been viewed by hundreds of parents and the Alameda County District Attorney," but this claim was not supported by evidence. With respect to this issue, the evidentiary material supporting the opposition, a declaration by Snyder with attached documents, stated only, "at least 10 parents pick [sic] up the public records request on Friday from the district."
The trial court initially refused the District's application for an order to show cause, concluding any applicable privileges had been waived by the documents' release under section 6254.5. It nonetheless issued a restraining order temporarily precluding further dissemination of the documents. The order granted the District six days to review the released documents and identify all those as to which it sought to claim the attorney-client and attorney work product privileges. Pending the District's review and production of a privilege log, real parties in interest "and all persons acting in concert with" them were restrained from reviewing or disseminating the released documents. Upon expiration of the time for production of the privilege log, the restraining order expired by its own terms as to all documents not listed on the log. One week later, on September 9, the restraining order was to expire as to all documents unless a further order of court had been entered. The District thereafter produced a privilege log identifying well over a hundred of the released documents as communications between counsel and District officials or as discussing such communications.
On September 9, 2014, the trial court issued an amended order denying the request for a temporary restraining order. The amended order reaffirmed the
Prior to expiration of the TRO, the District filed a petition for a writ of mandate in this court seeking a stay of the trial court's order permitting the review and release of the documents listed on the privilege log and the issuance of a writ directing the return of the documents. We granted the requested stay by continuing the order precluding the real parties in interest's review and dissemination of the privileged documents. After receipt of the parties' informal briefing, we issued an order to show cause why the writ should not be granted. We have received submissions by two groups of amici curiae, both consisting of media-related persons and entities.
During the pendency of this proceeding, the District requested dismissal of the writ petition against Snyder and the two entity real parties in interest, and we granted the request. As a result, Brazil is the only remaining real party in interest.
"The California Legislature in 1968, recognizing that `access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state' [citation], enacted the California Public Records Act, which grants access to public records held by state and local agencies [citation]. The act broadly defines `"[p]ublic records"' as
"A state or local agency, upon receiving a request by any person for a copy of public records, generally must determine within 10 days whether the request seeks public records in the possession of the agency that are subject to disclosure. (§ 6253, subd. (c).) If the agency determines that the requested records are not subject to disclosure, for example because the records fall within a statutory exemption [citation], the agency promptly must notify the person making the request and provide the reasons for its determination." (Filarsky v. Superior Court (2002) 28 Cal.4th 419, 426 [121 Cal.Rptr.2d 844, 49 P.3d 194] (Filarsky).)
Section 6254.5 deems the exemption from release of privileged documents under the PRA to be waived if a privileged document is "disclosed" to a member of the public. Brazil argues the District disclosed the privileged documents by releasing them to Snyder and others, regardless of whether the disclosure was an accident. The District, on the other hand, argues the term "disclosure" requires an intentional act, citing the law of waiver and the legislative history of section 6254.5. An inadvertent release of documents, it argues, is outside the scope of the statute.
"`"[It] is a `familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within ... the intention of its makers.'"' [Citation.] Where ... no single textually determined construction presents itself, we are well advised not to stop with the most plausible
A similar sense of intent is arguably inherent in our everyday use of the term. If the District had mailed a set of the documents to the wrong address, would we say the privileged documents were "disclosed" to the unintended recipient? Or were they merely communicated? Alternatively, if the District's lawyer had been overheard whispering to the interim superintendent, were the communications "disclosed" to the eavesdropper? Or did the eavesdropper merely learn of them? While it is certainly sensible to use the term "disclosure" in both these circumstances, it is not necessarily the first choice, precisely because a disclosure is typically not something that occurs by accident.
Finally, as suggested above, the concept of "waiver" itself is ambiguous in its requirement of intent. "`While "waiver" generally denotes the voluntary relinquishment of a known right, it can also refer to the loss of a right as a result of a party's failure to perform an act it is required to perform, regardless of the party's intent to relinquish the right.'" (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 374 [173 Cal.Rptr.3d 289, 327 P.3d 129].) It is not clear from the plain language of section 6254.5 whether the waiver of exemption effected by the statute was meant to require an intentional act. Because a finding of waiver is based on a "disclosure," the uncertainty in the requirements for waiver extends to that term as well. The statute could reasonably accommodate either meaning proposed by the parties.
It might seem we are splitting grammatical hairs here, but our purpose is not to settle the plain meaning of "disclosure." Rather, the issue is whether the plain meaning can accommodate the alternative meanings proposed by the parties; that is, whether they are "reasonable" (Tuolumne Jobs, supra, 59
In seeking to learn the Legislature's purpose in enacting section 6254.5, we turn first to the legislative history. That examination demonstrates persuasively that the intent of section 6254.5 was unrelated to the inadvertent release of privileged documents.
The bill creating section 6254.5, Senate Bill No. 879 (1981-1982 Reg. Sess.), was enacted in 1981. (Stats. 1981, ch. 968, § 3, p. 3682.) Although section 6254.5 has been amended several times since, the language critical here was present in the statute from the first. Repeatedly in contemporary legislative documents concerning Senate Bill No. 879, it was stated that the portion of the bill containing section 6254.5 was intended to codify existing case law. An enrolled bill report prepared by the California's former Department of Corporations explains: "Proponents of this bill indicate that [proposed section 6254.5] is merely a codification of the views of the Court of Appeal in Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645 [117 Cal.Rptr. 106] regarding `selective disclosures' by state agencies of `confidential information.'" (Dept. of Corporations, Enrolled Bill Rep. on Sen. Bill No. 879 (1981-1982 Reg. Sess.) Sept. 28, 1981, p. 1.) A photocopy of the Black Panther Party v. Kehoe decision was present in the author's file for the bill.
The plaintiffs in Black Panther Party v. Kehoe, supra, 42 Cal.App.3d 645 (Kehoe) had filed PRA requests with the Bureau of Collection and Investigative Services (Bureau), the state agency in charge of licensing debt collection agencies, seeking copies of citizen complaints involving these businesses. (42 Cal.App.4th at p. 649.) The Bureau contended the complaints were shielded from disclosure by an exemption for records of complaints and investigations in section 6254, subdivision (f). After an extensive analysis of the language of subdivision (f), the court agreed. (Kehoe, at pp. 650, 654.)
Language in legislative history documents, in addition to stating section 6254.5 was intended to codify the holding of Kehoe, repeatedly characterized the statute's purpose in language taken from Kehoe. A staff analysis, for example, characterized the proposed statute as a "ban on selective withholding of government documents." (Assem. Com. on Governmental Organization, Analysis of Sen. Bill No. 879 (1981-1982 Reg. Sess.) as amended Aug. 11, 1981, p. 3.) Similarly, the author of the bill stated in a press release that the bill would "[p]rohibit selective withholding of government documents. Once officials showed documents to any members of the public, they would become public records available to everyone." Again, in an enrolled bill report: "once a document has been released to any member of the public, it becomes open to public scrutiny." (Dept. of Social Services, Enrolled Bill Rep. on Sen. Bill No. 879 (1981-1982 Reg. Sess.) Sept. 28, 1981, p. 1.) The Legislature's purpose in enacting section 6254.5, then, was to prevent government officials from manipulating the PRA exemptions by asserting them against some members of the public while waiving them as to others. The statute, in essence, was intended to require agencies to maintain an applicable exemption as to all members of the public or not at all.
While finding a waiver of the privilege exemption as to documents inadvertently released is not inconsistent with this purpose, it is outside the Legislature's central concern. As Kehoe and the legislative history documents suggest, the target of section 6254.5 was "selective" disclosure: picking and
Although inadvertent disclosures were not within the contemplation of the Legislature when it enacted section 6254.5, that does not require us to interpret the statute to exclude them, since inadvertent disclosures are within a reasonable interpretation of the statutory language and are not inconsistent with the Legislature's purpose. Rather, we are compelled to interpret section 6254.5 to exclude inadvertent disclosures in order to avoid a conflict with Evidence Code section 912.
As discussed above, Evidence Code section 912 finds a waiver of the attorney-client and attorney work product privileges "if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone." (Id., subd. (a).) On its face, the statute applies equally with Government Code section 6254.5 to the present situation; both involve disclosures of documents protected by the applicable privileges.
When two statutes potentially conflict, our first task is not to declare a winner, but instead to find a way, if possible, to avoid the conflict. This principle was reiterated most recently in State Dept. of Public Health v. Superior Court (2015) 60 Cal.4th 940 [184 Cal.Rptr.3d 60, 342 P.3d 1217] (DPH), in which the Supreme Court addressed two statutes governing the confidentiality of citations issued to long-term care facilities. One statute appeared to declare copies of the citations to be available under the PRA (DPH, at p. 951), while the other labeled them confidential (id. at pp. 952-953). In addressing the apparent conflict, the court noted its first duty was to attempt to close the gap between them.
The DPH court ultimately found the two statutes before it impossible to reconcile and was required to apply the various doctrines designed to select between conflicting statutes. (DPH, supra, 60 Cal.4th at pp. 960-961.) We do not face that situation. As discussed above, section 6254.5 can plausibly be interpreted to exclude the inadvertent release of documents from its scope. By adopting that interpretation, we avoid any potential conflict with Evidence Code section 912. Further, for the reasons discussed above, such an interpretation would do no violence to the objectives of the Legislature in enacting Government Code section 6254.5. Genuine selective disclosure of privileged documents by public agencies would continue to result in a waiver of the exemption from disclosure of those documents as to all members of the public.
In addition, an interpretation favoring waiver leaves the PRA open to manipulation. It is not unusual for PRA requests to be made by counsel opposing a public agency in litigation as an alternative or supplement to ordinary discovery. An attorney who receives inadvertently produced documents during discovery has an ethical duty to refrain from unnecessary review of the documents, notify opposing counsel, and return the documents
Brazil argues article I, section 3 of the state Constitution requires us to construe Government Code section 6254.5 as creating a waiver of privilege in these circumstances, regardless of any conflict with Evidence Code section 912. Added by proposition in 2004, subdivision (b) of section 3 declares: "The people have the right of access to information concerning the conduct of the people's business...." (Cal. Const., art. I, § 3, subd. (b)(1).) Implementing that declaration, the section requires California statutes to be "broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access." (Id., subd. (b)(2).) At the same time, subdivision (b)(5) of article I, section 3 of the California Constitution provides: "This subdivision does not repeal or nullify, expressly or by implication, any constitutional or statutory exception to the right of access to public records or meetings of public bodies that is in effect on the effective date of this subdivision...." In Sierra Club v. Superior Court (2013) 57 Cal.4th 157 [158 Cal.Rptr.3d 639, 302 P.3d 1026] (Sierra Club), the Supreme Court characterized these provisions as "a rule of interpretation that is specific to" the PRA. (Sierra Club, at p. 166.) The court explained the interaction of subdivision (b)(2) and (5) as follows: "[I]n light of article I, section 3, subdivision (b)(5) of the Constitution, we may not countermand the Legislature's intent to exclude or exempt information from the PRA's disclosure requirements where that intent is clear. But to the extent that legislative intent is ambiguous, the California Constitution requires us to `broadly construe[]' the PRA to the extent `it furthers the people's right of access' and to `narrowly construe[]' the PRA to the extent `it limits the right of access.'" (Sierra Club, at p. 166.)
If not for the conflict it would create with Evidence Code section 912, we might well agree with Brazil that article I, section 3 of the Constitution
We decline to adopt Brazil's proposed construction of section 6254.5, however, because of the imperative to avoid creating statutory conflicts. As discussed above, Evidence Code section 912 and Government Code section 6254.5 are equally applicable to govern the waiver of privilege in these circumstances. Twenty years of consistent judicial interpretation of Evidence Code section 912 hold that the inadvertent production of privileged documents does not effect a waiver of the privilege. That statute cannot, at this late date, be interpreted to the contrary. Accordingly, if we were to adopt Brazil's interpretation of section 6254.5, the two statutes would dictate diametrically, and irreconcilably, opposed results in these circumstances. Because reconciling the statutes would be impossible, it would become necessary to choose between them.
That is not the preferred method for resolving statutory conflict. "Our duty is to harmonize statutes wherever possible." (County of San Bernardino v. City of San Bernardino (1997) 15 Cal.4th 909, 933 [64 Cal.Rptr.2d 814, 938 P.2d 876].) As explained in DPH, supra, 60 Cal.4th 940, "`"`"[a]ll presumptions are against a repeal by implication. [Citations.]" [Citation.] Absent an express declaration of legislative intent, we will find an implied repeal "only when there is no rational basis for harmonizing the two potentially conflicting statutes [citation], and the statutes are `irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation.'"'"'" (Id. at pp. 955-956.) In taking this approach, we are able to "`maintain the integrity of both statutes,'" thereby honoring the presumed intent of the Legislature. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 477 [66 Cal.Rptr.2d 319, 940 P.2d 906]; see, e.g., Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 943 [38 Cal.Rptr.3d 220, 126 P.3d 1040] ["`"`"The courts are bound, if possible, to maintain the integrity of both statutes if the two may stand together."'"'"].)
The need to reconcile these statutes, if feasible, takes precedence over the interpretive directive of section 3 of article I of the Constitution. Further, as
Amici curiae argue the District was precluded from bringing an action to recover the inadvertently released documents by Filarsky, supra, 28 Cal.4th 419, in which the Supreme Court held a public agency could not maintain a preemptive action for declaratory relief with respect to its obligation to produce documents in response to a PRA request. Rather, the court held, an action by the requesting party under section 6258 is "the exclusive procedure in these circumstances for litigating disputes regarding a person's right to obtain disclosure of public records under the [PRA] ...." (Filarsky, at p. 433.) As the court's careful choice of words suggests, Filarsky's holding was narrowly drawn to address only the circumstances before it. "The California Supreme Court [in Filarsky] neither considered nor resolved the broader issue ...: whether the CPRA precludes a person from initiating an action of any kind to resolve any issue `concerning' public records other than the question of whether a public entity has wrongly refused to disclose a particular record or class of records." (County of Santa Clara v. Superior Court (2009) 171 Cal.App.4th 119, 129-130 [89 Cal.Rptr.3d 520].) The situation in Filarsky was considerably different from ours. Brazil does not contend she had a right to obtain the privileged documents; she merely maintains that, once released, the documents cannot be taken back. Nor was the District's action preemptive. By its terms, Filarsky does not apply.
Further, we are reluctant to stretch Filarsky to cover these circumstances because we are unwilling to adopt an interpretation of the PRA that would leave a public agency with no means to recover improperly released documents. Putting aside the issue of privileged documents, there can be no question that inadvertently released documents within the express exclusions from waiver in section 6254.5 — for example, documents containing confidential third party financial or health information — should be recoverable, given the serious privacy interests involved in the improper disclosure of such documents. (Id., subds. (f)-(i).) Given the clear statement in section 6254.5 that release does not create a waiver of the exemption from disclosure of such documents, it would frustrate the legislative purpose to construe section 6258
Brazil and amici curiae argue that the attempt to recover documents released to the public through the PRA is likely to be more difficult than recovering documents inadvertently produced in discovery. Documents produced in discovery are provided to attorneys, who, as noted, have an ethical obligation not to review inadvertently produced privileged documents, to notify the producing party, and to return the documents upon request. (Rico v. Mitsubishi Motors Corp., supra, 42 Cal.4th at pp. 817-818; WPS, supra, 70 Cal.App.4th at pp. 656-657.) Members of the public who receive privileged documents in response to a PRA request, in contrast, are under no such duty. Accordingly, it is far more likely that such documents will be disseminated to third parties, making it difficult, if not impossible, to preserve their confidentiality.
While we acknowledge the validity of this concern, we view the dissemination of privileged documents as a circumstance for trial courts to take into consideration in granting relief to a public agency, rather than as a basis for preemptively denying relief in all circumstances. It may well be that an agency's delay in seeking the return of privileged documents released to members of the public has made it impossible for a court to grant effective relief, but that will not necessarily be the case. Contrary to the finding of the trial court, the record does not support such a finding here. The District sought return of the inadvertently produced documents within hours of their release. Although Snyder's unsworn opposition suggested the documents had been disseminated, she submitted no actual proof their confidentiality had been irretrievably compromised. Rather, there was evidence of the documents' review by only one member of the public other than Snyder, and there was no showing that copies of the documents were in the hands of persons outside the reach of the court's TRO. While we recognize the potential for a loss of confidentiality, since, as the trial court recognized, Snyder created an online folder and several hard and electronic copies of the documents were disseminated, there was no actual evidence of it. On the basis of the present record, we have no reason to conclude that effective relief cannot be granted in this case.
Amici curiae are also rightly concerned that, in attempting to preserve the confidentiality of inadvertently released documents, courts might be tempted improperly to restrict the use that may be made of such documents once
Finally, our decision in Masonite Corp. v. County of Mendocino Air Quality Management Dist. (1996) 42 Cal.App.4th 436 [49 Cal.Rptr.2d 639] discussed waiver under section 6254.5, but Masonite neither addressed nor purported to address the present circumstances. As relevant here, the corporate plaintiff in Masonite had filed with a public agency a series of documents that failed properly to designate trade secret information. (42 Cal.App.4th at pp. 441-442.) It sought to prevent disclosure of the documents containing the trade secrets to third parties under the PRA on the ground they contained trade secrets. (Masonite, at p. 453.) Interpreting provisions of the Health and Safety Code applicable to the specific documents at issue, the court held that they became public records when filed, thereby waiving any trade secret claim. (Masonite, at pp. 453-454.) In addition, the Masonite court noted, its decision was "reinforced" by the provisions of section 6254.5, which hold that a disclosure of otherwise protected documents by a public employee acting within the proper scope of his or her duties creates a waiver. (Masonite, at pp. 454-455.) Because this comment assumed an intentional rather than inadvertent release of documents by the public agency, its ruling has no bearing on, and plainly did not purport to address, the consequences of an inadvertent release.
Let a peremptory writ of mandate issue commanding respondent Superior Court of Alameda County, in its case No. RG14738281, (1) to vacate its amended order of September 9, 2014, denying the District's request for a temporary restraining order requiring real parties in interest to refrain from dissemination of inadvertently produced privileged documents, and (2) to resume and complete these proceedings as to real party in interest Elizabeth Brazil in a manner consistent with this decision. Pending further order of the trial court, the temporary restraining order precluding real parties in interest's
Dondero, J., and Banke, J., concurred.
