Filed 7/31/15 ; Supreme C t. pub. order 3/17/16 ( see end of opn. ) ( originally published at 239 Cal.App.4th 33 ) 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 Part y in Interest. A142963
(Alameda County Super. Ct. No. RG14738281)

Current and former r eal parties in interest Jennifer Snyder, Elizabeth Brazil, Newark Advocates for Change, and Newark Citizens for Change request ed documents

un der 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 inadvertent ly 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

- mail s 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 privilege s

. Under that statute, the disclosure of a document to the public waives any claim by an agency that the documen t is exe mpt 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 . T he trial court initially granted a temporary restraining order preventing their dissemination , but it ul timately 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. W e 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 bo th parties and examine t he legislative history of
the st atute . That history demonstrates conclusively the Legislature’s i n tent in enacting section 6254.5 was to prevent public agenc ies from disclosing documents to some members of the public while asserting confidentiality as to other persons

. Waiver as a

resu lt 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

a ttorney

- 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 injuncti ve relief (complaint) against r eal parties in August 2014. The complaint alleges Snyde r 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

. I n August, t he District releas ed documents in response to the requests

. Soon after , the
District realized not all of the documents had been reviewed for privilege or other exemption s and s ent an e

- mail to the recipients requesting their return. Br azil and Snyder declined to comply, Snyder t aking the position the District had waived any applicable privilege s by releas ing the documents. The complaint s eeks injunctive relief requiring
the return or destruction of the privileged, exempt, or confidenti al records that had been
releas ed.3

Promptly after filing the complaint, t he 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 applicati on 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 r esponsive
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 severa l hu n dreds 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 request ed 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 waiv ed 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 exemption s from disclosure

. In response to the District ’s request for a TRO , Sny der submitted an unsworn opposition . According to the opposition
, the PRA requests sought information about the resignation of Erwin’s predecessor, Dav e Marken. Some members of the community
believed the District ’s governing board had n ot properly explai ned the circumstances4

surrounding h is 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 wit h 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 constit uted a waive r 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 record s have already been viewed by hundreds of parent s and the Alameda County District Attorney , ” but th is claim was n ot supported by evidence. With respect to this issue, t he evidentiary material supporting the opposition, a declaration by Snyder with attached documents, stated only, “at least 10 parents pick [ s ic ] up the public records request on Friday from the d istrict .” 2 As recognized by the trial court, t he documentary
material attached to her declaration contained evidence of the documents’ review by o nly

one person. The trial court initially refused the District ’s application for an order show cause,

c oncluding any applicable privileges had been waived by the document s ’ release under
section 6254.5

. It nonetheless issued a restraining order temporarily precluding further
dissemination of the documents. The order grant ed the District six days to review the
release d documents and identify all those as to which i t sought to claim the attorney

client 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 releas ed 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 r ecord 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 Frida y from the District.”5

the time for production of the privilege log, the restraining order expire d by its own terms
as to all docume nts 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 b een en t ered.
The District thereafter produced a privilege log identifying well over a hundred of the

r eleased documents as communications between counsel and District officials or as discuss ing such communications. On September 9, 2014, the trial court issued an amended order denying the request for a temporary restraining order. The amended order reaff irm ed 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, t he

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 fil ed 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. W e grant ed the req uested stay by continu ing 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 respon se to a PRA request waives the otherwise applicable exemption from disclosure bas ed on6

the attorney

- client and attorney work product privilege s

. 3 For the reasons discussed below, we conclu de such an inadvertent release does not waive the privilege

. A. Th e California Public Records Act

“ The California Legislature in 1968, recognizing that ‘ access to information

conce rning the conduct of the people’ s business is a fundamental and necessary righ t of every person in this state ’ [citation] , enacted the Califo rnia 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 pr epared, 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 , t he 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 privile ges. 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 privilege s.7

example because the record s 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 r elating 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, sec tion 6254.5, states, in relevant part, “ N otwithstanding 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 wai ver 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).) A ccordingly, 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 sec tion 6254 , subdivision (k), would otherwise confer.
B. The Meaning o

f “Disclosure” i n 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 a rgue s 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” require s 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 “disclo sure” for purposes of section 6254.5, we apply the familiar rules governing8

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, commonsens e 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 a mbiguous or open to more than one reasonable interpretation, we may turn to legislative history for guidance.” ( Tuolumne Jobs , at p. 1040.) Other “ ‘ “ ‘e xtrinsic 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 Ca l.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 co nstruction 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 6 18, 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 a nd Plaus ible 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 meanin gs urged by the9

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

two online dictionaries: “ to expose to view” or “ to make known or public” ( Merriam

Webster Online Dict. (2015) < http://www.merriam

- webster.com/dictiona ry/disclose > [as
of July 31 , 2015 ] ) and “ to make known; reveal or uncover ” or “ to cause to appear; allo w 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 defini tions certainly include the meaning urged by Brazil , essentially to “reveal,”

w hat is also common to t he m 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
acci dent.
A similar sense of intent is arguably inherent in our everyday use of the term. If
the District had mail ed a set of the documents to the wrong address, would we say the privileged documents were “disclosed” to the unintended recipient ? Or w ere the y 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 th e eavesdropper merely learn of t hem ? While it is certainly sens ible to use the
term “disclosure” in both these circumstances, it i s not necessarily the first choice
, precisely because a disclosure is typically not something that occurs by accident.
T h e ambiguity in the meaning of “disclosure” is reflected in the cour ts’ well

accepted interpretation of Evidence Code section 912, which governs waiver of the attorney

- client and similar privileges
, to exclud e waiver based on inadvertent disclosures

. Under s ubdivision (a) of section 912, the right to claim the s pecified p rivileges “ 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 disclosure s 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,” notwith standing the failure of
section 912 to distinguish between intentional and inadvertent disclosures. ( WPS , at10

p. 653.) The court concluded, “ B ased 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 1 6 years since WPS to amend section 912 to bring inadvertent disclosures within its reach

. On the contrary, by enacting Code
of Civil Procedure section 20 3 1.285 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

- standi ng 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 requiremen t 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 reli nquish 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 t hat 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 eithe r 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 respon se to a discovery request does not waive the privilege.11

It might seem we are splitting grammati cal 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 , sup ra , 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 argue s , 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 occurr ed here. Given our conclusion the plain meaning of section 6254.5 is ambiguous, it is appropriate to turn to extrinsic aids to determine legislative i ntent.
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 inadvert ent r elease of privileged documents. 5 The bill creating section 6254.5, Senate Bill No. 879 ( 1981

– 1982 Reg. Sess.) , was enacted in 1981. (St ats. 1981, ch. 968, § 3, p. 3682 .) Although section 6254.5 has been amended several times since, t he language cri tical here was present in the statute from the
first. Repeatedly in contemporary legislative documents con cerning Senate Bill No. 879,
it was stated that the por tion of the bill containing section 6254.5 was intended to codif y existing case law. An enrol led 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) 4 2 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, containi ng 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 ch arge 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 i n section 6254, subdivision (f). A fter an extensive analysis of the language of subdivision (f), the c ourt 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 citiz ens’ 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 ma y 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, r ecords 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 publi c 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, i n addition to stating section 6254.5 was intended to codify the holding of Kehoe , repeatedly characterized the statute’s13

purpose in language take n from Kehoe. A staff analysis, for example, characterized t he proposed statute as a “ ban on selective withholding of government documents.” (Assem. Com. on Governmental Organizati on, 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 doc uments 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 Servic es, 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 m embers 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 no t at all. While finding a waiver of the privilege exemption as to doc uments 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 characterize s the District ’s inadvertent disclosure as “selective” merely because it i s made to a particular group of recipients, rather than to the public as a who le, this mis understands the meaning of “selective” as used in Kehoe

. When a release is inadvertent, n o “selection” occurs b e cause the agency has not exercise d choice in making the release

. It

wa s a n accident. Accordingly, an inadvertent release does not involve a n 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 sele ctive 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 gener al 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

. Th e inadvertent release of privileged documents
thus appears to be an example of “ ‘ “ ‘a thing .

. . within th e 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 S ection 912 Although i nadvertent disclosure s w ere not wit hin 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 inconsist ent 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 a ttorney

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 applie s equally with
Government Code section 6254.5 to the present situation ; both involve disclosures of documents protected by the applicable privileges

. 7 N othing in the language of Evidence
Code section 912 restricts its application to disclosures in litigat ion 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 intenti onal 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 reques t 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 not15

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. ( WP S , supra , 70 Cal.App .4th at p. 653; O ’ Mary
, supra , 59 Cal.App.4th at p. 577

. ) Accordingly, i f Brazil ’ s construction of Government
Code section 6254.5 is adopted, t he statutes would be potentially in conflict

. When two statutes potential ly conflict, our first task is not to dec lare a winner, but
instead to find a way , if possible, to avoid the conflict. Th is principl e was reiterated most recently in State Dept

. of Public Health v. Superior Court (2015) 60 Cal.4th 940 ( DP H ) , 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. 95 1), while the other labeled them confidential ( i d. at p p

. 952

– 953 )

. In add ress ing the apparent conflict, the court not ed its first duty was to attempt to clos e the gap between them.

“ ‘ “A court must, where reasonably possible, harmonize statutes, reconcile seeming inconsistencies in them, and construe them to give force and ef fect 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 c onstrued, 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 h ave 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 tha t 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 un derlying 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 potenti ally conflicting statutes [c itation], and the statutes are ‘ irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation. ’ ” ’ ” ’ [Citation s .] [¶] 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. [Citation s .] This canon of construction, like all such canons, does not authorize
courts to rewrite statutes. ” ( D PH , supra , 60 Cal.4th at p p

. 955

– 956 .)
The D PH court ultimately f ound 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 p p

. 960

– 961

. ) W e do not face that situation. As discussed above, section 6254.5 can plausibly be interpreted to ex clude 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 interpr etation would do no violence to the objectives of the Legislatur e 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 a s 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 i t

. Protection of t he attorney

- client privilege is regarded as fundamental to the administration of justice , and its waiver is disfavored

. “Without [ t he 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 of17

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 manipul ation. 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 t o refrain from unnecessary review of the documents, notify opposing counsel, and return the documents upon request. ( Rico v. Mitsubishi Motor s Corp. (2007) 42 Cal.4th 807, 817

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

create s 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 privil eged 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. Interpre tive 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 narrowly18

construed if it limits the right of access.” ( Id. , subd. (b)(2).) At the same time, subdivision (b)(5) of section 3 p rovides: “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.) T he court explained the interaction of subdivisions (b)(2) and (b)(5) as follows: “[I]n light of ar ticle 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
inte nt 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 li mits 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 6 254.5 to require a waiver of the privilege when privileged documents are inadvertently produced. As disc uss e d 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, s ection 3 of the Constitution weighs in favor of adopting an interpretation resulting in greater disclosure.
W e decline to adopt Brazil’s proposed construction of section 6254.5 , however,
because of the imperative to avoid creating s tatutory conflicts. As discus sed 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 c onsistent judicial interpretation of Evidence Code section 912 hold that the inadvert ent production19

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 d ictate 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. [Citatio ns.]” [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

presum ed intent of the Legislature. ( G arcia v. McCutche n (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 tog ether .” ’ ” ’ ” ] .) The need to reconcile these statutes, if feasible, takes precedence over the interpretive directive of section 3 of a rticle I of the Constitution . Further, a s the express preservation of legislative exemptions from public disclosure in subdivision (b)(5) of
section 3 demonstrate s, 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 ena ctments on the scope of privilege waiver is the mo st appropriate means for giv ing effect to its judgment in these
circumstances

. C. Other Contrary Arguments
A mici argue the District was precluded from bringing an action to recover the inadvertently relea sed documents by Filarsky , supra , 28 Cal.4th 419, in which the20

Supreme Court hel d a public agenc y 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 c ourt held, an action by the requesting party under section 6258
i s “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 c ourt’s careful choice of words suggests, Filarsky ’s holding was narrowly drawn to address only the circumstances before it. “ T he 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 maintain s that, once released, the documents
cannot be take n 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 b ecause

w e are unwilling to adopt an interpretation of the PRA that would leave a public agency with no means to recover improper ly released documents. Putting aside the issue of privileged documents, t here can be no question that inadvertently released documents
within the express exclusions from waiver in section 6254.5

— for example, documen ts 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).) G iven the clear statement in section 6254.5 th at 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, privilege d 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 concluding21

the current action for injunctive relief is an inappropriate method for obta ining 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. D ocuments produced in discovery are provi ded to a ttorneys , 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 Motor s 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 thir d parties , making it difficult, if not impossible, to preserve the ir confidentiality.
While we acknowledge the validity of this concern, we view t he dissemination of privileged documents as a circumstance for trial court s to take into consideration in

gra nting 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 ma de 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,

s he submitted no actual proof the ir confidentiality had been irretrievably compromised. Rather, t he re was evidence of the documents’ review by only one mem ber 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 recogni zed, 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, w e have no reason to
conclude that effective relief can not be granted i n this case.22

Amici are also rightly concerned that
, in attempt ing to preserve the confidentiality of inadvertently released documents
, courts might be tempt ed improperly to restrict the use that may be made of such documents once disseminated to third par ties . 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 s eeks only the return or destruction of privileged documents in the hands of the persons to whom t hey were released
, we have

no reason to consider the propriety of more intrus ive 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 Mas onite 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 t o the specific documents at issue, the court held that the y 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 se ction 6254.5, which h o ld that a disclosure of otherwise protected documents by a public employee acting within the proper scope of his or her duties create s a waiver. ( Masonite , at p p. 454

– 455.)
Because this comment assumed an intentional rather than ina dvertent 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 C ourt 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 privil eged
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 dis semination of the privileged documents is continued in effect. The District is entitle d to costs incurred in these writ proceedings. (See Cal. Rules of Court, rule 8.493(a)(1) (A) .)

_________________________ Margulies, Acting P.J.

W e concur:

_________________________ Dondero, J.

_________________________ Banke, J.24

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, Ca lifornia 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 Braz il.Filed 3/17/16

Court of Appeal, First Appellate District, Division One

- No. A142963

S229112


## IN THE SUPREME COURT OF CALIFORNIA

En Banc

________________________________________________________________________

NEWARK UNIFIED SCHOOL DISTRICT, Petitione r,

v. SUPERIOR COURT OF ALAMEDA COUNTY, Respondent;
ELIZABETH BRAZIL, Real Parties in Interest.

________________________________________________________________________ The Reporter of Decisions is directed to publish the Court of Appeal opinion in t he above

- entitled matter in the Official Reports. (Cal. Rules of Court, rule 8.1105(e)(2).)

______________________________ Chief Justice