Filed 7/31/15; Supreme Ct. 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,                                             A142963

v.                                                              (Alameda County
THE SUPERIOR COURT OF ALAMEDA                                   Super. Ct. No. RG14738281)
COUNTY,
        Respondent;
ELIZABETH BRAZIL,
        Real Party in Interest.


        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.
       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.


                                              2
       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



                                             3
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 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 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.”


                                              4
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


                                              5
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.


                                             6
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


                                              7
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


                                                8
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” (Merriam-
Webster 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’ well-
accepted 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


                                              9
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.


                                               10
       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.


                                             11
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


                                             12
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.


                                                 13
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 attorney-
client and attorney work product privileges “if any holder of the privilege, without
coercion, has disclosed a significant part of the communication or has consented to
disclosure made by anyone.” (Id., subd. (a).) On its face, the statute applies equally with
Government Code section 6254.5 to the present situation; both involve disclosures of
documents protected by the applicable privileges.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

                                              14
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.


                                              15
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


                                             16
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


                                             17
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


                                                18
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


                                              19
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


                                            20
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.


                                              21
       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.


                                             22
                                   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).)




                                                  _________________________
                                                  Margulies, Acting P.J.


We concur:


_________________________
Dondero, J.


_________________________
Banke, J.




                                             23
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.




                                            24
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, Petitioner,

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




                                                  ______________________________
                                                         Chief Justice
