As you may be aware, the California Public Records Act requires the release of all requested public records unless some specified exemption to disclosure applies.¹ However, it turns out that, according to §6254.5, if an agency releases exempt material to anyone they’ve automatically waived their right to withhold it from anyone else:

Notwithstanding any other law, if a state or local agency discloses a public record that is otherwise exempt from this chapter, to a member of the public, this disclosure shall constitute a waiver of the exemptions specified in Section 6254 or 6254.7, or other similar provisions of law.

But what happens if an agency releases the material by accident and then other people want it? In 2016 the California Supreme Court decided the issue in Ardon v. City of Los Angeles, holding that inadvertent disclosure didn’t waive exemptions. At that time, the court recognized the potential for abuse² and warned:

Our holding that the inadvertent release of exempt documents does not waive the exemption under the Public Records Act must not be construed as an invitation for agencies to recast, at their option, any past disclosures as inadvertent so that a privilege can be reasserted subsequently. This holding applies to truly inadvertent disclosures and must not be abused to permit the type of selective disclosure section 6254.5 prohibits. The agency’s own characterization of its intent is not dispositive, just as it is not dispositive under the law of privilege.

Continue reading State Senator Bob Wieckowski Introduces SB-1244, Which Would Undo The Easily Abused California Supreme Court Decision In Ardon v. City of Los Angeles Holding That Inadvertent Disclosures Of Exempt Records By A Public Agency Did Not Waive The Exemption →