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Newark Unified School District v. Superior Court (Elizabeth Brazil)

California Court of Appeals, First District, First Division

July 31, 2015


Supreme Ct. pub. order Filed 3/17/16

Alameda County Superior Court No. RG14738281 Hon. Evelio M. Grillo Trial Judge

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.

Margulies, Acting P.J.

Current and former real parties in interest Jennifer Snyder, Elizabeth Brazil, Newark Advocates for Change, and Newark Citizens for Change requested documents under the California Public Records Act (Gov. Code, [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.

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.


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.

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 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 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 ...

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