Filed 7/31/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

NEWARK UNIFIED SCHOOL 

DISTRICT,

Petitioner,

v.

THE SUPERIOR COURT OF ALAMEDA 

COUNTY,

Respondent;

ELIZABETH BRAZIL,

Real Party in Interest.

 A142963

 (Alameda County

 Super. Ct. No. RG14738281)

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,1§ 6250 et seq.; PRA) from

petitioner Newark Unified School District (District). When the District delivered 

documents in response to the requests, it inadvertently included over a hundred 

documents that, the District contends, are subject to the attorney-client or attorney work 

product privileges. Within hours of the release, the District’s interim superintendent

discovered the error and sent e-mails to the recipients asking for return of the documents. 

Snyder and Brazil refused. Snyder, an attorney, cited section 6254.5 in contending the 

District’s inadvertent release had waived the privileges. Under that statute, the disclosure 

of a document to the public waives any claim by an agency that the document is exempt 

from release under the PRA.

 

1 All statutory references are to the Government Code unless otherwise indicated. 
2

The District filed an action against real parties 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, 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 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.

I. BACKGROUND

The District filed a complaint for injunctive relief (complaint) against real parties 

in August 2014. The complaint alleges Snyder is an attorney who represents the two

entity real parties, community organizations, while Brazil is a Newark resident. In 

June 2014, real parties made one or more requests to the District under the PRA. In 

August, the District released documents in response to the requests. Soon after, the 

District realized not all of the documents had been reviewed for privilege or other 

exemptions and sent an e-mail to the recipients requesting their return. Brazil and Snyder 

declined to comply, Snyder taking the position the District had waived any applicable 

privileges by releasing the documents. The complaint seeks injunctive relief requiring 

the return or destruction of the privileged, exempt, or confidential records that had been 

released. 
3

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 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 not properly explained the circumstances 
4

surrounding his resignation and its rejection of Marken’s subsequent attempt to rescind 

the resignation. 

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.”2 As recognized by the trial court, the documentary 

material attached to her declaration contained evidence of the documents’ review by only 

one person. 

The trial court initially refused the District’s application for an order 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 attorneyclient and attorney work product privileges. Pending the District’s review and production 

of a privilege log, real parties “and all persons acting in concert with” them were 

restrained from reviewing or disseminating the released documents. Upon expiration of 

 

2

Snyder’s declaration stated in full: “1. I am an attorney at law duly admitted to 

practice before all the courts of the State of California and the attorney of record herein 

for Plaintiff [sic] Newark Advocates for Change. [¶] 2. I have received the attached 

emails and documents directly from my clients. [¶] 3. Based on information and belief, at 

least 10 parents pick [sic] up the public records request on Friday from the District.” 
5

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 court’s legal 

conclusions and rejected the District’s claim of irreparable harm, concluding public 

disclosure of the documents had already occurred because “the information has been 

released to several members of the public through posting in [an online] folder and 

people picking up CDs at the office of the School Board.” Despite this rejection, the 

court continued the TRO for an additional week with respect to the documents on the 

privilege log. 

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’ 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, and we granted the request. 

As a result, Brazil is the only remaining real party.

II. DISCUSSION

The issue squarely presented by the District’s petition is whether, by operation of 

section 6254.5, a public agency’s inadvertent release of privileged documents in response 

to a PRA request waives the otherwise applicable exemption from disclosure based on 
6

the attorney-client and attorney work product privileges.

3

 For the reasons discussed 

below, we conclude such an inadvertent release does not waive the privilege.

A. The California Public Records Act

“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 including ‘any writing containing information 

relating to the conduct of the public’s business prepared, owned, used, or retained by any 

state or local agency . . . .’ ” (Long Beach Police Officers Assn. v. City of Long Beach

(2014) 59 Cal.4th 59, 66–67.) 

Notwithstanding its broad definition of public records, the right of access to such

records under the PRA is not absolute. (Copley Press, Inc. v. Superior Court (2006) 

39 Cal.4th 1272, 1282.) The PRA “enumerates a ‘ “number of exemptions that permit 

government agencies to refuse to disclose certain public records.” [Citation.]’ [Citation.] 

Specific exemptions apply where the public interest in disclosure may be outweighed by 

various public or private interests.” (Los Angeles Unified School Dist. v. Superior Court

(2014) 228 Cal.App.4th 222, 238.) In effect, “all public records are subject to disclosure 

unless the Legislature has expressly provided to the contrary.” (Williams v. Superior 

Court (1993) 5 Cal.4th 337, 346.)

“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 

 

3

The District originally claimed some of the released documents might have been 

covered by other PRA exemptions, but the trial court granted a TRO only as to 

documents covered by the attorney-client and attorney work product privileges. The 

District does not appear to have objected to this ruling. Because documents covered by 

any other PRA exemptions are presumably now public, our decision addresses only the 

exemption based on the attorney-client and attorney work product privileges.
7

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 (Filarsky).)

Section 6254 is one of the statutes specifying documents exempt from release in 

response to a PRA request. Among them are “[r]ecords, the disclosure of which is 

exempted or prohibited pursuant to federal or state law, including, but not limited to, 

provisions of the Evidence Code relating to privilege.” (§ 6254, subd. (k); Sanchez v. 

County of San Bernardino (2009) 176 Cal.App.4th 516, 527 [PRA “does not require the 

disclosure of a document that is subject to the attorney-client privilege”].) The PRA 

provision of concern here, section 6254.5, states, in relevant part, “Notwithstanding any 

other provisions of law, whenever a state or local agency discloses a public record which 

is otherwise exempt from this chapter, to any member of the public, this disclosure shall 

constitute a waiver of the exemptions specified in Sections 6254, 6254.7, or other similar 

provisions of law.” Although section 6254.5 lists several categories of documents 

excluded from its waiver rule, privileged documents are not among them. (Id., 

subds. (a)–(i).) Accordingly, if the inadvertent release of privileged documents in 

response to a PRA request constitutes a “disclosure” of the privileged documents for 

purposes of section 6254.5, the release itself effects a waiver of the exemption from 

disclosure that section 6254, subdivision (k), would otherwise confer.

B. The Meaning of “Disclosure” in Section 6254.5

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.

In determining whether an inadvertent release of privileged documents constitutes 

a “disclosure” for purposes of section 6254.5, we apply the familiar rules governing 
8

statutory interpretation. “Our primary task in interpreting a statute is to determine the 

Legislature’s intent, giving effect to the law’s purpose. [Citation.] We consider first the 

words of a statute, as the most reliable indicator of legislative intent.” (Tuolumne Jobs & 

Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1037 (Tuolumne 

Jobs).) “ ‘ “When interpreting statutes, we begin with the plain, commonsense meaning 

of the language used by the Legislature. [Citation.] If the language is unambiguous, the 

plain meaning controls.” ’ ” (Riverside County Sheriff’s Dept. v. Stiglitz (2014) 

60 Cal.4th 624, 630 (Stiglitz).) “To the extent statutory language is ambiguous or open to 

more than one reasonable interpretation, we may turn to legislative history for guidance.” 

(Tuolumne Jobs, at p. 1040.) Other “ ‘ “ ‘extrinsic aids’ ” ’ ” to the interpretation of a 

statute, available when the language is “ ‘ “unclear or ambiguous,” ’ ” are “ ‘ “ ‘the 

ostensible objects to be achieved, the evils to be remedied, . . . public 

policy, contemporaneous administrative construction, and the statutory scheme of which 

the statute is a part.’ ” ’ ” (People v. Scott (2014) 58 Cal.4th 1415, 1421.) 

“ ‘ “Ultimately we choose the construction that comports most closely with the apparent 

intent of the lawmakers, with a view to promoting rather than defeating the general 

purpose of the statute.” ’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1369.) 

“ ‘ “[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 reading but to consult other interpretive 

aids, including legislative history and the context of the enactment.” (City of Los Angeles 

v. County of Kern (2014) 59 Cal.4th 618, 628 (County of Kern).) “ ‘ “[W]e may reject a 

literal construction that is contrary to the legislative intent apparent in the statute or that 

would lead to absurd results . . . .” ’ ” (Stiglitz, supra, 60 Cal.4th at p. 630.)

1. Reasonable and Plausible Interpretations

Under the long-established principles of statutory interpretation, we first consider 

the “ ‘ “plain, commonsense meaning” ’ ” (Stiglitz, supra, 60 Cal.4th at p. 630) of 

“disclose” to determine whether it can accommodate the two meanings urged by the 
9

parties. In determining that meaning, we begin with the definitions of “disclose” from 

two online dictionaries: “to expose to view” or “to make known or public” (MerriamWebster Online Dict. (2015) <http://www.merriam-webster.com/dictionary/disclose> [as 

of July 31, 2015]) and “to make known; reveal or uncover” or “to cause to appear; allow 

to be seen; lay open to view” (Dictionary.com (2015) 

<http://dictionary.reference.com/browse/disclose?s=t> [as of July 31, 2015].). While 

these definitions certainly include the meaning urged by Brazil, essentially to “reveal,” 

what is also common to them is a sense of purpose: to “expose,” to “make known,” to

“allow,” to “lay open.” (Italics added.) These do not seem to be events that happen by 

accident.

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.

The ambiguity in the meaning of “disclosure” is reflected in the courts’ wellaccepted interpretation of Evidence Code section 912, which governs waiver of the 

attorney-client and similar privileges, to exclude waiver based on inadvertent disclosures.

Under subdivision (a) of section 912, the right to claim the specified privileges “is 

waived . . . if any holder of the privilege, without coercion, has disclosed a significant 

part of the communication or has consented to disclosure made by anyone.” Despite the 

statute’s declaration that any uncoerced “disclosure” creates a waiver, courts have 

consistently held that inadvertent disclosures do not. In the leading case, State Comp.

Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644 (WPS), the court read into the statute 

the requirement that a disclosure be “intentional,” notwithstanding the failure of 

section 912 to distinguish between intentional and inadvertent disclosures. (WPS, at 
10

p. 653.) The court concluded, “Based on the language of Evidence Code section 912, we 

hold that ‘waiver’ does not include accidental, inadvertent disclosure of privileged 

information by the attorney.” (Id. at p. 654.) That holding has not been judicially 

challenged, nor has the Legislature seen fit in the 16 years since WPS to amend section 

912 to bring inadvertent disclosures within its reach. On the contrary, by enacting Code 

of Civil Procedure section 2031.285 in 2009 (Stats. 2009, ch. 5, § 18), the Legislature 

codified the rule, at least as to electronically stored materials produced during discovery.

4

 

This is consistent with the long-standing principle that a privilege is not waived in the 

absence of a manifest intent to waive. (E.g., Torbensen v. Family Life Ins. Co. (1958) 

163 Cal.App.2d 401, 404.)

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.) 

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.

 

4 Code of Civil Procedure section 2031.285 states, in part: “(a) If electronically 

stored information produced in discovery is subject to a claim of privilege or of 

protection as attorney work product, the party making the claim may notify any party that 

received the information of the claim and the basis for the claim. [¶] (b) After being 

notified of a claim of privilege or of protection under subdivision (a), a party that 

received the information shall immediately sequester the information and either return the 

specified information and any copies that may exist or present the information to the 

court conditionally under seal for a determination of the claim.” Necessarily, the statute 

presumes that mere disclosure of privileged information in response to a discovery 

request does not waive the privilege.
11

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 Cal.4th at p. 1040) or “plausible” (County of 

Kern, supra, 59 Cal.4th at p. 628) meanings. While “disclosure” could refer to any action 

by which documents are communicated, as Brazil argues, it is also both reasonable and 

plausible to restrict the use of the term to intended communications, thereby excluding 

the type of inadvertent release that occurred here. Given our conclusion the plain 

meaning of section 6254.5 is ambiguous, it is appropriate to turn to extrinsic aids to 

determine legislative intent.

2. Legislative History

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.5

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 regarding ‘selective disclosures’ by state agencies of 

‘confidential information.’ ” (Dept. of Corporations, Enrolled Bill Rep. on Sen. Bill 

 

5

In considering documents from the bill’s legislative history, we take judicial 

notice of a binder of Senate Bill No. 879 materials maintained in the library of the 

California Supreme Court, containing copies of contemporary committee analyses, the 

Governor’s chaptered bill file, and the author bill file.
12

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. (Id. 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.)

Kehoe nonetheless ordered the documents disclosed on the basis of a “special 

basis for disclosure” raised by the plaintiffs—that the Bureau “routinely discloses 

complaints to the affected collection agencies.” (Kehoe, supra, 42 Cal.App.3d at p. 655.) 

As the court explained: “The defendant state agencies assert authority to give collection 

agencies access to citizens’ complaints and to deny access to plaintiffs. The claim is 

really one of power to indulge in selective disclosure. The [PRA] impliedly but firmly 

negates that claim. After listing 14 permissible exemptions from disclosure, section 6254 

declares that its provisions do not prevent ‘any agency from opening its records 

concerning the administration of the agency to public inspection.’ [¶] The term public

inspection necessarily implies general, nonselective disclosure. It implies that public

officials may not favor one citizen with disclosures denied to another. When a record 

loses its exempt status and becomes available for public inspection, section 6253, 

subdivision (a), endows every citizen with a right to inspect it. By force of these 

provisions, records are completely public or completely confidential. The [PRA] denies 

public officials any power to pick and choose the recipients of disclosure. When 

defendants elect to supply copies of complaints to collection agencies, the complaints 

become public records available for public inspection.” (Id. at pp. 656–657, fns. 

omitted.) This is the ruling section 6254.5 was intended to codify.

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 
13

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 choosing by an agency of the 

members of the public to whom documents will be released. 6 While Brazil characterizes

the District’s inadvertent disclosure as “selective” merely because it is made to a 

particular group of recipients, rather than to the public as a whole, this misunderstands 

the meaning of “selective” as used in Kehoe. When a release is inadvertent, no 

“selection” occurs because the agency has not exercised choice in making the release. It 

was an accident. Accordingly, an inadvertent release does not involve an attempt to 

 

6

The “exceptions” to waiver of the exemptions, listed in subdivisions (a) through 

(i) of section 6254.5, illustrate the Legislature’s focus on selective disclosure. Each of 

these exceptions permits disclosure by a specified governmental body to specified entities 

and persons, for a specified purpose. In the case of these exceptions, the Legislature has 

declared such selective disclosure permissible, in contrast to the general rule of 

section 6254.5.
14

assert the exemption as to some, but not all, members of the public, the problem 

section 6254.5 was intended to address. The inadvertent release of privileged documents

thus appears to be an example of “ ‘ “ ‘a thing . . . within the letter of the statute and yet 

not within the statute, because not within . . . the intention of its makers.’ ” ’ ” (County of 

Kern, supra, 59 Cal.4th at p. 628.)

3. Conflict with Evidence Code Section 912

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 attorneyclient 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.

7

 Nothing in the language of Evidence 

Code section 912 restricts its application to disclosures in litigation discovery. 8 Yet, as 

 

7 Contrary to O’Mary v. Mitsubishi Electronics America, Inc. (1997) 

59 Cal.App.4th 563 (O’Mary), we do not view the inadvertent release of documents in 

response to a discovery request to be “coerced” and therefore outside Evidence Code 

section 912. (O’Mary, at p. 577.) If that were the case, even an intentional release of 

privileged documents would not waive the privilege, since all releases that occur pursuant 

to the discovery statutes, whether intentional or inadvertent, would be equally “coerced.” 

Yet to the extent an inadvertent release of privileged documents in response to a 

discovery request is “coerced” for purposes of Evidence Code section 912, an inadvertent 

release in response to a PRA request is as well. Either way, the statutes conflict.

8

It is technically possible to distinguish section 6254.5 as waiving only the PRA 

exemption from disclosure, rather than the underlying evidentiary privilege, while 

Evidence Code section 912 addresses the privilege. Under this argument, a finding that 

an inadvertent disclosure has waived the exemption under section 6254.5 would not 
15

discussed above, judicial interpretation of Evidence Code section 912 dating back nearly

two decades holds that the inadvertent disclosure of documents covered by these 

privileges does not effect a waiver. (WPS, supra, 70 Cal.App.4th at p. 653; O’Mary, 

supra, 59 Cal.App.4th at p. 577.) Accordingly, if Brazil’s construction of Government 

Code section 6254.5 is adopted, the statutes would be potentially in conflict.

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 (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.

“ ‘ “A court must, where reasonably possible, harmonize statutes, reconcile 

seeming inconsistencies in them, and construe them to give force and effect to all of their 

provisions. [Citations.] This rule applies although one of the statutes involved deals 

generally with a subject and another relates specifically to particular aspects of the 

subject.” [Citation.] Thus, when “ ‘two codes are to be construed, they “must be 

regarded as blending into each other and forming a single statute.” [Citation.] 

Accordingly, they “must be read together and so construed as to give effect, when 

possible, to all the provisions thereof.” [Citation.]’ ” [Citation.] Further, “ ‘ “[a]ll 

presumptions are against a repeal by implication. [Citations.]” [Citation.] Absent an 

 

constitute a finding of waiver as to the underlying privilege under Evidence Code section 

912. While this distinction might have some appeal in theory, as practical matter it is a 

distinction without a difference. Once the exemption is lost, the harm against which the 

privilege protects—the disclosure of confidential information—occurs. Further, there is a 

significant risk that the public availability of the document would be found to work a loss 

of the privilege, precisely because confidentiality has been lost. We therefore find the 

theoretical distinction between waiver of an exemption based on privilege and waiver of 

the underlying privilege to be of no legal significance. For public agencies, loss of a 

PRA exemption based on privilege is tantamount to loss of the privilege. 
16

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.’ ” ’ ” ’ [Citations.] [¶] But the requirement that courts 

harmonize potentially inconsistent statutes when possible is not a license to redraft the 

statutes to strike a compromise that the Legislature did not reach. [Citation.] The cases 

in which we have harmonized potentially conflicting statutes involve choosing one 

plausible construction of a statute over another in order to avoid a conflict with a second 

statute. [Citations.] This canon of construction, like all such canons, does not authorize 

courts to rewrite statutes.” (DPH, supra, 60 Cal.4th at pp. 955–956.)

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 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.

While we adopt this interpretation of section 6254.5 in the interests of statutory 

harmony, solid policy grounds support it. Protection of the attorney-client privilege is 

regarded as fundamental to the administration of justice, and its waiver is disfavored. 

“Without [the privilege], full disclosure by clients to their counsel would not occur, with 

the result that the ends of justice would not be properly served.” (WPS, supra, 

70 Cal.App.4th at p. 657.) “[A] waiver of confidentiality is not to be assumed lightly: 

‘In considering whether the attorney-client privilege has been waived, we start with 

the proposition that . . . : “The privilege of confidential communication between client 

and attorney should be regarded as sacred. It is not to be whittled away by means of 
17

specious argument that it has been waived. Least of all should the courts seize upon 

slight and equivocal circumstances as a technical reason for destroying the privilege.” ’ ” 

(People v. Gardner (1980) 106 Cal.App.3d 882, 888.) Because it would result in a 

waiver of this critical privilege, the interpretation of section 6254.5 urged by Brazil

begins with a strike against it.

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 upon request. (Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 

807, 817–818.) If mere inadvertent release of privileged documents under the PRA 

creates a waiver of the attorney-client and attorney work product privileges, however, 

counsel receiving such documents are presumably under no similar ethical duty to refrain 

from review and return them, since the documents are no longer privileged by the time

they come into the attorney’s possession. These differing consequences encourage 

attorneys litigating against a public agency to accompany every discovery request with an 

identical PRA request, merely on the chance that an inadvertent production of privileged 

documents should occur. This is just the type of “ ‘gotcha’ theory of waiver” decried by 

O’Mary in concluding inadvertent disclosures do not result in a waiver under Evidence 

Code section 912. (O’Mary, supra, 59 Cal.App.4th at p. 577.)

4. Interpretive Rule of the State Constitution

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 
18

construed if it limits the right of access.” (Id., subd. (b)(2).) At the same time, 

subdivision (b)(5) of section 3 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 (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 

subdivisions (b)(2) and (b)(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 requires us to construe 

Government Code section 6254.5 to require a waiver of the privilege when privileged 

documents are inadvertently produced. As discussed above, the Legislature by no means 

expressed a clear intent to exclude inadvertently produced privileged documents from 

waiver under section 6254.5. Although an examination of the legislative history of the 

statute reveals that inadvertently produced privileged documents were not the focus of the 

legislation, such documents are arguably within the scope of its waiver language. 

Article I, section 3 of the Constitution weighs in favor of adopting an interpretation 

resulting in greater disclosure.

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 
19

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.) 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 p. 955.) 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; 

see similarly Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 

921, 943 [“ ‘ “ ‘ “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 the express 

preservation of legislative exemptions from public disclosure in subdivision (b)(5) of 

section 3 demonstrates, the interpretive rule of subdivision (b)(2) was intended to defer to 

contrary legislative judgments regarding the appropriate scope of public records 

disclosure. Reasonably reconciling the Legislature’s enactments on the scope of 

privilege waiver is the most appropriate means for giving effect to its judgment in these 

circumstances.

C. Other Contrary Arguments

Amici 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 
20

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.) 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 as precluding any means 

for their recovery. Because, as we have construed section 6254.5, privileged documents 

inadvertently released are similarly excluded from waiver, such documents would be 

recoverable in the same manner. We have been presented with no basis for concluding
21

the current action for injunctive relief is an inappropriate method for obtaining such 

relief.

Brazil and amici 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.
22

Amici 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 disseminated to third parties. Again, we 

view this as an issue to be considered on a case-by-case basis, rather than as a reason to 

bar any relief. Because the District’s complaint seeks only the return or destruction of 

privileged documents in the hands of the persons to whom they were released, we have 

no reason to consider the propriety of more intrusive relief.

9

Finally, our decision in Masonite Corp. v. County of Mendocino Air Quality 

Management Dist. (1996) 42 Cal.App.4th 436, 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. (Id. 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.

 

9 Amici also argue certain of the documents listed on the privilege log are not 

actually privileged. While we decline to address the validity of amici’s argument, which 

was not raised in the trial court, this issue can presumably be raised with the trial court on 

remand. We have not granted the District’s request for a writ of mandate directing return 

of the documents because this and other issues, such as the availability of effective relief, 

remain to be resolved.
23

III. DISPOSITION

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 to refrain from dissemination of inadvertently produced privileged 

documents; and (2) to resume and complete these proceedings as to real party Elizabeth 

Brazil in a manner consistent with this decision. Pending further order of the trial court, 

the temporary restraining order precluding real parties’ review and dissemination of the 

privileged documents is continued in effect. The District is entitled to costs incurred in 

these writ proceedings. (See Cal. Rules of Court, rule 8.493(a)(1)(A).)
24

_________________________

Margulies, Acting P.J.

We concur:

_________________________

Dondero, J.

_________________________

Banke, J.

A142963

Newark Unified School District v. Superior Court
25

Trial Court: Alameda County Superior Court

Trial Judge: Hon. Evelio M. Grillo

Counsel: 

Lozano Smith, Jerome Behrens, Steve Ngo and Frances Valdez for Petitioner Newark 

Unified School District.

Paul Nicholas Boylan for Real Party in Interest Elizabeth Brazil.

Paul Nicholas Boylan for The Sacramento Valley Mirror, Lake County News, The

People’s Vanguard of Davis, Rio Dell Times, The Woodland Record and Daniel Webster 

as Amicus Curiae on behalf of Real Party in Interest Elizabeth Brazil.

Law Offices of Kelly A. Aviles, Kelly A. Aviles for First Amendment Coalition, 

Californians Aware, California Newspaper Publishers Association, Los Angeles Times 

Communications LLC, The Sacramento Bee, Los Angeles News Group, Station Venture 

Operations, KFMB CBS 8 San Diego and inewsource as Amicus Curiae on behalf of 

Real Party in Interest Elizabeth Brazil.