City of Portland v. Bartlett
Decision Date | 10 June 2020 |
Docket Number | A164469 |
Citation | 304 Or.App. 580,468 P.3d 980 |
Parties | CITY OF PORTLAND, an Oregon municipal corporation, Plaintiff-Respondent, v. Mark BARTLETT, Defendant-Appellant. |
Court | Oregon Court of Appeals |
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.
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:
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) ( ). 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:
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) ( ). 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) ( ).
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, 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...
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City of Portland v. Bartlett
...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 statute......
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Chaimov v. State
...the interplay of the Public Records Law and the attorney-client privilege in a slightly different context in City of Portland v. Bartlett , 304 Or. App. 580, 468 P.3d 980 (2020). There, the plaintiff sought disclosure under the Public Records Law of communications more than 25 years old bet......
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Depaul Indus. v. City of Portland
... ... of local conditions by a statewide law unless that intention ... is apparent”). State law conflicts with, and may ... preempt, local law either expressly or by implication ... See City of Portland v. Bartlett , 304 Or.App. 580, ... 593 (2020). A state law expressly preempts a local law if ... “the legislature meant its law to be exclusive,” ... and a state law impliedly preempts a local law when ... “both cannot operate concurrently.” ... Owen , 368 Or. at 667 ... ...