City of Portland v. Bartlett

304 Or.App. 580

468 P.3d 980

CITY OF PORTLAND, an Oregon municipal corporation, Plaintiff-Respondent,

v.Mark BARTLETT, Defendant-Appellant.

A164469

Court of Appeals of Oregon, En Banc.

Argued and submitted June 10, 2019

Resubmitted en banc February 12, 2020

June 10, 2020

Duane A. Bosworth, Portland, argued the cause for appellant. Also on the briefs was Davis Wright Tremaine LLP.

Denis M. Vannier argued the cause and filed the brief for respondent.

Philip M. Thoennes filed the brief amicus curiae for League of Oregon Cities.

Before Egan, Chief Judge, and Armstrong, Ortega, DeVore, Tookey, DeHoog, Shorr, James, Aoyagi, Powers, Mooney, and Kamins, Judges.

SHORR, J.

Defendant appeals from a judgment granting declaratory relief to plaintiff City of Portland (city). The trial court granted the city's motion for summary judgment, ruling that public records that defendant sought were exempt from disclosure because they were attorney-client privileged documents. The court also denied defendant's cross-motion for summary judgment that contended that the city must permit disclosure of the same public records. Defendant appeals, assigning error to those rulings. Because we conclude that, in these circumstances, ORS 192.390 requires the disclosure of public records more than 25 years old, notwithstanding the exemption for privileged documents, we reverse and remand.

In Oregon, "[e]very person has a right to inspect any public record of a public body in this state, except as otherwise expressly provided by ORS 192.338, 192.345 and 192.355." ORS 192.314.¹ Defendant submitted a public records request to the city, seeking release of four documents that were all created more than 25 years ago: three city attorney opinions and one memorandum from then-city attorney Jeffrey Rogers to then-Mayor Bud Clark and then-City Commissioners Lindberg and Bogle. The city denied defendant's request, asserting attorney-client privilege under OEC 503 and contending that the documents were therefore exempt from disclosure under ORS 192.355(9)(a). Defendant then petitioned the Multnomah County District Attorney to review the city's denial of his request and to order the disclosure of the records.² The district attorney issued an order granting defendant's petition and ordering the city to promptly disclose the records. The district attorney concluded that ORS 192.390 unambiguously required disclosure of records older than 25 years, notwithstanding any claim of privilege by the city.

The city then sought a declaratory judgment that the "documents ordered produced by the District Attorney are attorney-client privileged material exempt from disclosure under ORS 40.255." Defendant filed a counterclaim seeking a declaratory judgment that the records must be disclosed. The city moved for summary judgment, arguing that the district attorney incorrectly construed ORS 192.390 and that the records were exempt from disclosure as a matter of law. Defendant filed a cross-motion for summary judgment also seeking declaratory relief.

After a hearing, the trial court concluded that the documents "remain privileged" and, accordingly, granted the city's motion for summary judgment. In a letter opinion, the court explained:

" ORS 40.225 and ORS [192.390] are in direct conflict. ORS 40.225 does not include a temporal limit on documents it protects nor create an exception for public records. ORS [192.390] does not include an exception for attorney-client privileged documents that are more than 25 years old in the carve outs listed in [ ORS 192.398 ]. The two statutes cannot be harmonized.

"Together, ORS 174.010 and 174.020 require the court to construe a statute by both looking to its plain meaning and, if possible, ascertaining legislative intent. See State v. Gaines , [346 Or. 160, 206 P.3d 1042 (2009) ]. Here, the first level of analysis—plain meaning of the two statutes—does not resolve the issue. The question then becomes whether, in adopting ORS [192.390] in 1979, the Legislative Assembly intended for public records protected by the attorney-client privilege to lose their exempt status after 25 years.

"The legislative history of ORS [192.390] includes no reference to attorney-client privilege or, for that matter, any clue whether the Legislative Assembly intended to impose a time limit on the privilege in the government setting. Without a more definitive statement of intent to terminate a fundamental privilege on which clients (including government clients) rely, the court should be reluctant to require disclosure of documents which were intended to be confidential.

"On the other hand, the legislative history suggests that ORS [192.390] had a defined purpose, which was the simplification of certain types of research. This interpretation of statutory intent is buttressed by the fact that, in codifying the attorney-client privilege in 1981, the Legislative Assembly did not create an exception for public records.

"After considering all of the arguments and the entire summary judgment record, the court concludes that the documents remain privileged."

The court entered a general judgment granting the city's requested declaratory relief.

Defendant now appeals from that judgment, assigning error to the trial court's grant of the city's motion for summary judgment and its denial of defendant's motion. "On review of cross-motions for summary judgment, we view the record for each motion in the light most favorable to the party opposing it to determine whether there is a genuine issue of material fact and, if not, whether either party is entitled to judgment as a matter of law." O'Kain v. Landress , 299 Or. App. 417, 419, 450 P.3d 508 (2019) ; see also Kluge v. Oregon State Bar , 172 Or. App. 452, 457, 19 P.3d 938 (2001) (explaining, in the context of a public records proceeding, that "we do not ignore the fact that this case is on appeal from a summary judgment" and "[c]onsequently, we review the summary judgment to determine whether there are any genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law"). Here, the only question is a legal one concerning the interpretation of statutes.

Defendant argues that ORS 192.390 unambiguously requires the disclosure of public records older than 25 years, notwithstanding the attorney-client privilege, and that the trial court erred in concluding otherwise. The city responds that the documents that defendant seeks are protected by attorney-client privilege as defined in OEC 503, and that the legislative history of ORS 192.390 does not indicate that the legislature intended to abrogate that privilege. The parties do not dispute that the records in question are subject to attorney-client privilege and that they are older than 25 years.

The question before us is whether the legislature, in enacting ORS 192.390, intended to require the disclosure of public records older than 25 years even though those records are otherwise exempt from disclosure under ORS 192.355 (9)(a) because they are subject to attorney-client privilege under OEC 503. To answer that question, we first construe ORS 192.390, which states as follows:

"Notwithstanding ORS 192.338, 192.345 and 192.355 and except as otherwise provided in ORS 192.398, public records that are more than 25 years old shall be available for inspection."

(Emphases added.) As always, when construing a statute, the "paramount goal" is to effectuate the intention of the legislature. Gaines , 346 Or. at 171, 206 P.3d 1042. In reaching that goal, we consider the text of the statute in context, along with any legislative history that is helpful. Id. at 171-72, 206 P.3d 1042. If the legislature's intentions remains unclear, we then resort to general maxims of statutory construction. Id. at 172, 206 P.3d 1042. As the Supreme Court observed in Gaines , "there is no more persuasive evidence of the intent of the legislature than the words by which the legislature undertook to give expression to its wishes." Id . at 171, 206 P.3d 1042 (internal quotation marks omitted).

Here, the text of ORS 192.390 unambiguously states that records that are older than 25 years shall be disclosed, notwithstanding the exemptions from disclosure contained in ORS 192.355. In turn, ORS 192.355 provides, in relevant part:

"The following public records are exempt from disclosure under ORS 192.311 to 192.478 :

"* * * * *

"(9)(a) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential or privileged under Oregon law."

Attorney-client privilege is a "privilege under Oregon law" that is incorporated into ORS 192.355(9)(a).³ See generally Port of Portland v. Ore. Center for Environ. Health , 238 Or. App. 404, 409-10, 243 P.3d 102 (2010), rev. den. , 350 Or. 230, 253 P.3d 1079 (2011) (noting that, when considered together, OEC 503 and ORS 192.502(9)(a) exempt attorney-client privileged documents from public records disclosure laws). Considered together, ORS 192.355(9) and ORS 192.390 indicate that, notwithstanding any attorney-client privilege that would otherwise exempt records from disclosure, public records that are more than 25 years old "shall," that is, must, be disclosed. See Doyle v. City of Medford , 356 Or. 336, 366, 337 P.3d 797 (2014) (noting that the term "shall" ordinarily imposes a mandatory duty).

The context of the public records statutes also favors disclosure. As noted above, ORS 192.314 requires disclosure of public records except as otherwise expressly provided. As the Supreme Court has observed, "Under the statutory scheme, disclosure is the rule. Exemptions from disclosure are to be narrowly construed." Guard Publishing Co. v. Lane County School Dist. , 310 Or. 32, 37, 791 P.2d 854 (1990).

The city raises various arguments for why we should overlook the text of ORS 192.390, none of which persuade us. The city first contends that the overall 25-year cap in ORS 192.390 on exemptions from public disclosure applies only to...