Chaimov v. State

• Decision Date: 09 September 2021
• Docket Number: A169203
• Citation: 498 P.3d 830,314 Or.App. 253
• Parties: Gregory A. CHAIMOV, Plaintiff-Respondent, v. STATE of Oregon, BY AND THROUGH the OREGON DEPARTMENT OF ADMINISTRATIVE SERVICES, Defendant-Appellant.
• Court: Oregon Court of Appeals

314 Or.App. 253

498 P.3d 830

Gregory A. CHAIMOV, Plaintiff-Respondent,

v.STATE of Oregon, BY AND THROUGH the OREGON DEPARTMENT OF ADMINISTRATIVE SERVICES, Defendant-Appellant.

A169203

Court of Appeals of Oregon.

Argued and submitted September 8, 2020.

September 9, 2021

Jona J. Maukonen, Assistant Attorney General, argued the cause for appellant. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

John DiLorenzo, Jr., Portland, argued the cause for respondent. Also on the brief were Duane Bosworth, Christopher Swift, Evan R. Christopher, and Davis Wright Tremaine LLP.

Jack L. Orchard, Adele J. Ridenour, Portland, and Ball Janik LLP filed the brief amicus curiae for Oregon Newspaper Publishers Association.

Before Armstrong, Presiding Judge, and James, Judge, and Aoyagi, Judge.

ARMSTRONG, P. J.

In this declaratory judgment action, the narrow question presented is whether state agencies that have submitted bill-drafting requests to the Office of Legislative Counsel (LC) are "clients" of LC for purposes of the lawyer-client privilege, OEC 503 (codified at ORS 40.225 ),¹ such that communications between the agencies and LC before and during the drafting process are exempt from disclosure under ORS 192.355(9) of the Public Records Law. The state appeals a judgment for plaintiff on the parties’ cross-motions for summary judgment. The judgment declared that bill-drafting requests by agencies to LC are not protected from disclosure by the lawyer-client privilege and directed the Department of Administrative Services (DAS) to turn the documents over to plaintiff. The state contends that the trial court erred in granting plaintiff's motion and denying the state's motion.

In reviewing a trial court's ruling on summary judgment, we apply the ordinary summary judgment standard under ORCP 47. A party is entitled to summary judgment when "there is no genuine issue as to any material fact and * * * the moving party is entitled to prevail as a matter of law." ORCP 47. The facts in this case are undisputed, and the only question is whether the limited communications between agencies and LC before and during the legislative-drafting process are subject to the lawyer-client privilege provided in OEC 503 and are therefore exempt from disclosure under the Public Records Law.

We conclude that LC's services to agencies in the drafting of legislation are legal services to a "client" within the meaning of OEC 503. Thus, we conclude that the communication from agencies to LC requesting bill drafts are protected communications exempt from disclosure under the Public Records Law, and that the trial court therefore erred in granting plaintiff's motion for summary judgment and denying the state's motion. We therefore reverse the judgment for plaintiff and remand for entry of a judgment declaring that the bill request forms are subject to the lawyer-client privilege and exempt from disclosure under the Public Records Law.

Under ORS 171.130(2),² the Governor "may file a proposed legislative measure with the Legislative Counsel." LC, in turn, provides legislative-drafting services to the Governor and to state agencies: "Upon the written request of a state agency, the Legislative Counsel may prepare or assist in the preparation of legislative measures that have been approved for preparation in writing by the Governor or the Governor's designated representative." ORS 173.130(2).³

Only LC may draft proposed legislation. See Rules of the Oregon Senate, 213.07 ("The Executive Department, administrative agencies, boards and commissions, and the Judicial Branch, shall have all measures for presession filing with the Senate drafted by Legislative Counsel."); Rules of the Oregon House 2017-2018, 12.20(1) (legislative counsel must draft language for all measures introduced in the House).

LC must keep confidential "the contents or nature of any matter before the Legislative Counsel in the official capacity of the Legislative Counsel" that is designated as confidential by the person bringing the matter to LC. ORS 173.230 provides:

"(1) The Legislative Counsel or any employee of the Legislative Counsel Committee may not reveal to any person not an employee of the committee the contents or nature of any matter before the Legislative Counsel in the official capacity of the Legislative Counsel, if the person bringing the matter before the Legislative Counsel or employee designates the matter as confidential. Matters not designated as confidential may be revealed only as prescribed by the rules of the committee.

"(2) Notwithstanding subsection (1) of this section, the Legislative Counsel may provide a copy of a draft measure to the Legislative Fiscal Officer and the Legislative Revenue Officer.

"(3) The provision by the Legislative Counsel of a copy of a draft measure under subsection (2) of this section is not a waiver of privilege under ORS 40.225."

In anticipation of the 2019 legislative session, the Governor asked state agencies in 2018 to identify problems or issues that they sought to resolve through the adoption of legislation and to propose ways of changing the law to address them. DAS required agencies to submit their proposals on a form entitled "2019 Agency Request to Office of Legislative Counsel for Drafting of Legislation" (the request form). DAS informed state agencies that legislative concepts

"will be temporally 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)."

The "header" on the request form stated, "Confidential and Attorney-Client Privileged." An italicized paragraph on the form stated:

"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."

Pursuant to those instructions, agencies created and submitted to the Governor's office request forms describing proposed legislative concepts. The request forms included the agencies’ description of the "problem," the "proposed solution," and a proposed drafted legislative change. The forms asked whether the concept had previously been introduced, whether it required an amendment of current law, and whether the proposal was related to a legal decision. The forms also asked the agencies to include an "equity analysis" and information concerning known stakeholders, known opposition or support, and any fiscal impact.

In 2018, the Governor approved 234 concepts for development, and DAS forwarded the request forms to LC for drafting as proposed legislation for the 2019 Legislative Assembly. ORS 173.230(1) requires LC to keep any matter before it confidential if the requester designates it as confidential; LC understood the request forms to be confidential and treated them that way.

Plaintiff is an attorney with the firm of Davis Wright Tremaine LLP who practices law in the area of government relations. In July 2018, plaintiff submitted a public records request to the Governor's office for the 2018 request forms. DAS, the custodian of the records, denied the request, explaining that the records "are exempt from disclosure under ORS 192.355(1) based on attorney-client privilege."

As permitted by ORS 192.411, plaintiff filed a petition with the Attorney General, seeking an order requiring DAS to produce copies of the request forms. Deputy Attorney General Frederick Boss issued an order denying the request on behalf of the Attorney General, explaining the Attorney General's opinion that the request forms were subject to lawyer-client privilege, as defined in OEC 503 (codified at ORS 40.225 ):

" ORS 192.355(9)(a) expressly 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.’ The lawyer-client privilege provides that ‘[a] client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client.’ ORS 40.225(2). Accordingly, ORS 192.355(9)(a) permits public bodies to decline to disclose public records that are protected by the lawyer-client privilege. See, e.g. , Port ofPortland v. Ore. Center for Environ. Health , 238 Or. App. 404, 409 (2011) [(2010)] (predecessor statute to ORS 192.355(9)(a) encompasses lawyer-client privileged communications); Klamath County School Dist. v. Teamey , 207 Or. App. 250, 259[, 140 P.3d 1152, rev. den. , 342 Or. 46, 148 P.3d 915] (2006) (same).

"The Oregon Supreme Court has held that application of the lawyer-client privilege is contingent upon three findings. See State ex rel OHSU v. Haas , 325 Or. 492, 501 (1997). First, the communication must be ‘confidential’ within the meaning of ORS 40.225(1)(b) (a communication ‘not intended to be disclosed to third persons’ other than to those necessary to facilitate the rendition of professional legal services). Second, the communication must have been made for the purpose of facilitating the rendition of professional legal services. And third, the communication must have been between the parties described in one of the paragraphs of ORS 40.225(2)(a)-(e). Id . If all three elements are satisfied, the lawyer-client privilege applies. Teamey , 207 Or. App. at 261-62 . If an entire communication is deemed confidential, a public body is not required to separate exempt from nonexempt material under ORS 192.338. See Port of Portland ,

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