City of Portland v. Bartlett

369 Or. 606

509 P.3d 99

CITY OF PORTLAND, an Oregon municipal corporation, Petitioner on Review,

v.Mark BARTLETT, Respondent on Review.

CC 16CV01529 (SC S067940)

Supreme Court of Oregon.

Argued and submitted November 3, 2021.

April 28, 2022

Denis M. Vannier, Office of the City Attorney, Portland, argued the cause and filed the briefs for petitioner on review.

Chris Swift, Davis Wright Tremaine LLP, Portland, argued the cause for respondent on review. Duane A. Bosworth filed the brief for respondent on review.

Carolyn H. Connelly, Local Government Law Group PC, Eugene, filed the brief for amicus curiae League of Oregon Cities.

Before Walters, Chief Justice, and Balmer, Flynn, Duncan, Nelson, and Garrett, Justices.^**

BALMER, J.

This case requires us to consider the relationship between two statutes that both protect important interests: the public records law, which provides that "[e]very person has a right to inspect any public record of a public body in this state, except as otherwise expressly provided by [specific statutes]," ORS 192.314,¹ and the attorney-client privilege, which gives a lawyer's client "a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications" with the client's lawyer, OEC 503(2). In 1979, the legislature amended the public records law to provide that, with certain exceptions, "public records that are more than 25 years old shall be available for inspection." ORS 192.390 (former ORS 192.495 (2015) ); Or. Laws 1979, ch. 301, § 2. The specific question presented in this case is whether four documents that were prepared more than 25 years ago by the Portland City Attorney for the mayor and two city commissioners and that are subject to the attorney-client privilege must be disclosed under ORS 192.390. For the reasons set out below, we conclude that those documents must be disclosed. We therefore affirm the decision of the Court of Appeals and reverse the judgment of the circuit court.

I. BACKGROUND

Defendant requested the City of Portland to release three city attorney opinions and one legal memorandum. The parties agree that the documents are public records, are within the scope of the attorney-client privilege, and are more than 25 years old. The city declined to release the documents, arguing that they are exempt from the public records law because of the attorney-client privilege. Pursuant to the statutory procedure for review of the city's decision, ORS 192.415 (former ORS 192.460 (2015) ), defendant petitioned the district attorney to order release of the documents on the ground that ORS 192.390 required their release, notwithstanding the attorney-client privilege. The district attorney ordered the documents’ release, and the city then brought this action seeking a declaratory judgment that the documents are exempt from disclosure. The trial court agreed with the city and held that the public records law did not require the disclosure of the documents.

The Court of Appeals reversed in an en banc, split decision. City of Portland v. Bartlett , 304 Or. App. 580, 468 P.3d 980 (2020). The majority recognized that "the issue is close because of the confusing intersection among the various statutes," including the competing policies of the broad privilege protecting attorney-client communications and "a public records law that promotes disclosure and a sunset on exemptions to public disclosure." Id. at 591, 468 P.3d 980. But it concluded that "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." Id. at 585, 468 P.3d 980 (emphases in original). The express exemptions in ORS 192.390 include ORS 192.355 (former ORS 192.502 (2015) ). That statute, in turn, refers to "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential or privileged under Oregon law," ORS 192.355(9)(a) —a category of records sometimes referred to as the "catchall" exemption—which, the majority held, include records subject to the attorney-client privilege. Bartlett , 304 Or. App. at 585-86, 468 P.3d 980. The majority also rejected the city's argument that requiring disclosure of the documents would interfere with its home-rule powers under Article IV, section 1(5), and Article XI, section 2, of the Oregon Constitution. Id. at 592-97, 468 P.3d 980.

Judge Powers dissented, joined by Judges DeVore and James, asserting that the "[n]otwithstanding" clause in ORS 192.390 applies only to exemptions "expressly listed in ORS 192.345 and ORS 192.355 —not the lawyer-client privilege codified at OEC 503, or any other privilege or confidential public record not specifically identified in [the public records law]." Bartlett , 304 Or. App. at 597, 468 P.3d 980 (Powers, J., dissenting). In particular, the dissent would read the "[n]otwithstanding" clause not to apply "to an exemption not expressly identified by the legislature in ORS 192.345 or ORS 192.355," id. ; that is, it would not read the clause to encompass an exemption that is operative only through the catch-all exemption in ORS 192.355(9)(a). Because, in the dissent's view, the attorney-client privilege is not "expressly identified" in those listed statutes, the dissent concluded that the documents need not be disclosed.

II. THE STATUTORY FRAMEWORK

We turn to the critical statutes, utilizing the approach set out in State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009). As we summarized Gaines in Kinzua Resources v. DEQ , 366 Or. 674, 680, 468 P.3d 410 (2020), when interpreting statutes, "the paramount goal is to discern the intention of the legislature," which we do by "giv[ing] primary weight to the text and context of the disputed statutory terms," because "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." (Internal quotation marks omitted.) We also consider legislative history for what it may be worth in a particular case. Id.

We first discuss in general terms the statutes whose intersection creates the issue before us. Examining more closely the text and context of those statutes, we then evaluate the parties’ arguments about how those statutes should be interpreted. We also consider whether any aspects of the legislative history offered by the parties assist us in our interpretative effort.

A. The Public Records Law and the Attorney-Client Privilege: Text and Context

The statutory right of Oregonians to inspect public documents goes back at least to 1862: "Every citizen of this state has a right to inspect any public writing of this state, except as otherwise expressly provided by this code or some other statute." General Laws of Oregon, Civ. Code, ch. VIII, title V, § 707, p. 326 (Deady 1845-1864). The public records law took its current form in 1973, see Or. Laws 1973, ch. 794, § 3, but the statutory policy of disclosure, in the absence of a specific exception, remains as it was in 1862: "Every person has a right to inspect any public record of a public body in this state, except as otherwise provided by ORS 192.338, 192.345 and 192.355." ORS 192.314(1). We have said of the public records law, "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, recons. den. (1990). And we have emphasized that the "people's right to inspect public records is fundamental." American Civil Liberties Union v. City of Eugene , 360 Or. 269, 299, 380 P.3d 281 (2016) (internal quotation marks omitted). Those general statements of the importance of access to public records, however, cannot resolve this case—which involves another fundamental and deeply rooted right—and we turn to the operative text of the public records law.

As set out above, ORS 192.314 establishes the right of every person to inspect a public record "except as otherwise expressly provided by ORS 192.338, 192.345 and 192.355." The third statute listed, ORS 192.355, is the one at issue here. The first of the three statutory provisions listed, ORS 192.338 (former ORS 192.505 (2015) ), simply directs public bodies, if records are exempt under the second and third statutes, to separate exempt material from nonexempt material and disclose the nonexempt material. The two other statutory provisions, ORS 192.345 (former ORS 192.501 (2015) ) and ORS 192.355, contain substantive exemptions. ORS 192.345 lists records that are exempt from disclosure "unless the public interest requires disclosure in the particular instance." Those records include materials such as "[t]rade secrets," "[i]nvestigatory information compiled for criminal law purposes," and "[t]est questions, scoring keys, and other data" used in licensing or academic testing. ORS 192.345(2) - (4). Those are sometimes referred to as "conditional" exemptions because, when the public interest requires, otherwise confidential records must be disclosed. The third statute, ORS 192.335, unconditionally exempts a wide variety of public records from disclosure, including, for example, private personal information the disclosure of which would be an unreasonable invasion of privacy, personal addresses and phone numbers of public employees (in certain circumstances), and certain financial investment records maintained by the state treasurer and the Oregon Investment Council. ORS 192.355(2)(a), (3), (13).

ORS 192.355 also includes, as paragraph (9)(a), the catchall exemption, which exempts from disclosure "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential or privileged under Oregon law." That provision, the parties agree, generally exempts communications less than 25 years old and subject to the attorney-client privilege from the otherwise applicable...