Chaimov v. State

370 Or. 382

520 P.3d 406

Gregory A. CHAIMOV, Petitioner on Review,

v.STATE of Oregon, BY AND THROUGH the OREGON DEPARTMENT OF ADMINISTRATIVE SERVICES, Respondent on Review.

CC 18CV39159 (SC S069038)

Supreme Court of Oregon.

Argued and submitted June 8, 2022.

October 27, 2022

John DiLorenzo, Jr., Davis Wright Tremaine LLP, Portland, argued the cause and filed the briefs for petitioner on review. Also on the briefs were Chris Swift and Verónica Muriel Carrioni.

Jona J. Maukonen, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Jack L. Orchard, Ball Janik LLP, Portland, filed the brief for amici curiae Oregon Newspaper Publishers Association et al. Also on the brief was Adele J. Ridenour, Portland.

En Banc

DeHOOG, J.

The issue in this civil action is whether completed request forms prepared by state agencies seeking draft legislation from the Office of Legislative Counsel¹ are subject to disclosure under Oregon's Public Records Law, ORS 192.311 to 192.431. The Department of Administrative Services (DAS) contends that the request forms fall within the attorney-client privilege under OEC 503 and so are exempted from disclosure under the Public Records Law by ORS 192.355 (9)(a). The trial court granted summary judgment for plaintiff, holding that the request forms were not exempt and ordering their disclosure, but the Court of Appeals reversed, concluding that they were subject to the attorney-client privilege. Chaimov v. Dept. of Admin. Services , 314 Or App 253, 498 P.3d 830 (2021). On review, we affirm the decision of the Court of Appeals and reverse the judgment of the trial court.

I. BACKGROUND

A. Overview

Plaintiff made the underlying public records request in July 2018, seeking copies of completed request forms used by state agencies to propose legislation for the 2019 legislative session. Individual state agencies had completed approved blank forms and then submitted them to DAS for the Governor to decide whether to request that the Office of Legislative Counsel prepare draft bills. We describe that process in some detail below, together with the facts and procedural background, because it is central to the parties’ dispute.

B. Facts and Legal Context

The Oregon Constitution authorizes the Governor to "recommend" legislation to the Legislative Assembly. Article V, section 11, provides:

"[The Governor] shall from time to time give to the Legislative Assembly information touching the condition of the State, and reccommend [sic ] such measures as [s]he shall judge to be expedient[.]"

Our concern here is with the mechanism by which those recommendations are made.

1. Requests for bill drafting by state agencies

As one aspect of deciding what legislation to request, the Governor first seeks recommendations from state agencies. To propose legislation, agencies are required to use an approved request form describing proposed legislative concepts. The Governor reviews the submitted proposals and decides whether to request the legislation based on the legislative concepts proposed in the completed request forms.

To prepare for the 2019 legislative session, DAS notified state agencies to submit their proposals using the approved request form, entitled "2019 Agency Request to Office of Legislative Counsel for Drafting of Legislation." The form had been changed from previous years in at least two relevant respects. First, the request form stated at the top:

"Confidential and Attorney-Client Privileged." Second, that designation was immediately followed by this paragraph:

"This document is a request for legal services. By completing this form, the named agency asks the Office of Legislative Counsel to draft legislation for introduction in the 2019 Legislative Session based on the instructions below. Although it is expected that agencies will have discussed legislative concept ideas with stakeholders, agencies are directed to treat this document as confidential and privileged and, accordingly, not to share the text of this form outside of state government before legislation is drafted and finalized[.]"

(Emphasis omitted.)

The blank request form then set out several text boxes that appear largely unchanged from prior years. Among other things, the form asked the agency to provide the following information:

• "Problem (Completely describe the problem you propose to solve.)"

• "Proposed Solution (Completely describe what the concept does to fix the problem. Do not include proposed statute changes here.)"

• "Proposed Changes to Statute (Please attach your best attempt at proposing changes to statute to accomplish your goal; [h]owever, Legislative Counsel may draft alternate language.)"

(Emphases omitted.)

DAS separately informed state agencies that completed request forms would " ‘be temporally [sic ] exempt from disclosure [under the Public Records Law] until Legislative Counsel has submitted bill drafts to the Governor's Office for final approval (this should be done by November 30, 2018).’ " (First brackets added.)

2. Office of Legislative Counsel

As noted, for proposals that the Governor approves, the completed request forms are submitted to the Office of Legislative Counsel for bill drafting. The Legislative Assembly created that office in 1953. Or. Laws 1953, ch. 492; see Gregory Chaimov, How an Idea Really Becomes Law: What Only Jacques Cousteau Can Know , 36 Willamette L Rev 185, 190 (2000). By House and Senate rules, bills submitted to the Legislative Assembly must be drafted by that office. Rule 213.07, Rules of the Oregon Senate 2017-18; Rule 12.20(1), Rules of the Oregon House 2017-18.

The office is headed by Legislative Counsel, a position that can be held only by an attorney. See ORS 173.200(1) (Legislative Counsel must be "a person authorized to practice law in the highest court of one of the states of the United States"). At the relevant time, the Office of Legislative Counsel consisted of Legislative Counsel (in fact a licensed Oregon attorney), an additional 18 attorneys, and 28 nonattorney staff.

Legislative Counsel is chosen by, and "serve[s] at the pleasure of," the Legislative Counsel Committee. ORS 173.200. The committee is a joint committee of the Legislative Assembly. ORS 173.111. Its membership consists of the Speaker of the House of Representatives and the President of the Senate, plus those members of the House and Senate whom they select. ORS 173.191(1)(a).

3. Mechanics of bill drafting

The following describes the steps that the Office of Legislative Counsel takes when it receives a request for a bill.² When a request for a bill is received, it is assigned to an appropriate specialist attorney. Chaimov, 36 Willamette L Rev at 191 (explaining that the attorneys in the Office of Legislative Counsel specialize in particular subject matters). The attorney first reviews the request to determine what the requester is trying to achieve and, if necessary, will contact the requester for clarification. Id .

The attorney then researches the relevant legal framework surrounding the proposal, including substantive and procedural limitations. As summarized by the current Legislative Counsel in the proceeding below:

"For example, the attorney may research whether federal law or substantive provisions of the state or federal constitution bar[ ] the approach suggested in the request. The attorney must consider whether procedural requirements in the Oregon Constitution, such as the requirement that bills consist of a single subject, are satisfied. The attorney must research whether the proposal would modify or otherwise affect existing laws or programs."

See also Chaimov, 36 Willamette L Rev at 191-92 ("the attorney researches the issue to determine whether the law permits the attorney to fulfill the request" until "satisfied that the law allows the requested bill").

If legal problems are discovered, then the attorney communicates that to the requester and may suggest changes or alternatives to solve the problem. Again, in the words of the current Legislative Counsel:

"[I]t is up to the requester to decide whether to proceed in the face of identified constitutional or other issues. However, the attorneys in the Office of Legislative Counsel are expected to communicate relevant legal findings so that the requester can make an informed decision. The [attorney] may also, if appropriate, advise the requester regarding options for modifying the proposal to avoid the problems identified."

As Legislative Counsel further explained, the attorney then prepares a draft bill that, "in the attorney's judgment, best accomplishes the policy goals outlined in the request and has the best chance of resulting in a legally defensible bill." The draft bill is then proofread and copy-edited by staff.

C. Public Records Request; Civil Action; and Court of Appeals Decision

In 2018, state agencies submitted 270 completed request forms proposing legislation to DAS for gubernatorial review. The Governor rejected five, and the agencies withdrew 31. A total of 234 request forms were ultimately submitted to the Office of Legislative Counsel for bill drafting.

In July 2018, plaintiff submitted a public records request to DAS under Oregon's Public Records Law. He sought copies of the completed request forms that state agencies had prepared for the 2019 legislative session. DAS denied the request, asserting that the request forms were exempt from disclosure because they were attorney-client privileged. Plaintiff sought review of that decision by the Attorney General, who agreed with DAS.

Plaintiff then filed a civil action in circuit court to require DAS to produce the completed request forms. The parties filed cross-motions for summary judgment. Plaintiff argued (among other things) that there could be no attorney-client privilege between a state agency and the Office of Legislative Counsel. He reasoned that, under ORS 173.130(5),...