Kluge v. Oregon State Bar

• Decision Date: 14 February 2001
• Citation: 172 Or. App. 452,19 P.3d 938
• Parties: David R. KLUGE, Appellant, v. OREGON STATE BAR, Respondent.
• Court: Oregon Court of Appeals

19 P.3d 938

172 Or. App. 452

David R. KLUGE, Appellant, v. OREGON STATE BAR, Respondent.

(98C-17944; CA A105548)

Court of Appeals of Oregon.

Argued and Submitted February 3, 2000.

Decided February 14, 2001.

David R. Kluge argued the cause and filed the briefs pro se.

Michael C. Livingston, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before HASELTON, Presiding Judge, and DEITS, Chief Judge,¹ and WOLLHEIM, Judge.

WOLLHEIM, J.

In this public records disclosure case, plaintiff appeals a judgment denying him access to certain Oregon State Bar (Bar) records. Plaintiff assigns as error the trial court's award of summary judgment, an award of costs and prevailing party fees to the Bar, an order dissolving a stay of Bar disciplinary proceedings, and an ex parte communication that occurred following the summary judgment hearing. Because summary judgment was not appropriate in this instance, we reverse the summary judgment and award of attorney fees and remand for further proceedings. We otherwise affirm.

In July 1998, the Bar notified plaintiff that it would institute a formal disciplinary proceeding against him. Plaintiff made a written demand, pursuant to the Oregon Public Records Act, ORS 192.410 to ORS 192.505, for all the records held by the Bar relating to that proceeding. The Bar replied that it would permit plaintiff to review, inspect, and receive copies of the requested records except for those records or sections of records that constituted the analysis portions of communications to or from the Local Professional Responsibility Committee (LPRC) or the State Professional Responsibility Board (SPRB).

Plaintiff subsequently petitioned the Attorney General to review the requested records to determine whether the contested portions were properly withheld from public inspection and to order the Bar to release the records. ORS 192.450(1). The Attorney General inspected the requested records and denied plaintiff's request for release of the contested portions on the ground that those portions are exempt from disclosure under ORS 192.502(1) as records that consist of "observations, assessments, analysis, advice and recommendations."² Plaintiff's petition for reconsideration was denied.

Plaintiff then filed this proceeding in the circuit court. ORS 192.450(2). Plaintiff's complaint asked the trial court to order the Bar to produce the contested records, to enjoin the Bar from proceeding with any disciplinary action against plaintiff until those records are produced, and to award plaintiff costs and attorney fees. Based upon the complaint, the trial court issued a temporary restraining order (TRO) directing the Bar not to initiate and prosecute any formal disciplinary proceeding so long as it continued to withhold any of the records at issue. The Bar moved to dissolve the TRO on the grounds that circuit courts lack jurisdiction over Bar disciplinary proceedings and that plaintiff had not shown irreparable harm. In response to that motion, the trial court dissolved the TRO.

The Bar then moved for summary judgment. In January 1999, the trial court held a hearing to consider the Bar's motion. Immediately following the conclusion of the hearing, the trial court judge met with the Bar's attorney and representative in his chambers. Notably, the trial court did not conduct an in camera inspection of the contested Bar records. The trial court granted summary judgment in favor of the Bar and awarded the Bar its costs and disbursements. Plaintiff appeals.

Oregon has a "strong and enduring policy that public records and governmental activities be open to the public." Jordan v. MVD, 308 Or. 433, 438, 781 P.2d 1203 (1989). The guiding principle in Oregon is to protect the public's right to inspect public records. ORS 192.420 ("Every person has a right to inspect any public record of a public body in this state, except as otherwise expressly provided * * *."); City of Portland v. Anderson, 163 Or.App. 550, 553, 988 P.2d 402 (1999). Disclosure is the rule and exemptions from disclosure are to be narrowly construed. Oregonian Publishing v. Portland School Dist. No. 1J, 144 Or.App. 180, 184, 925 P.2d 591 (1996), aff'd on other grounds 329 Or. 393, 987 P.2d 480 (1999). When a public body withholds public records from disclosure, that body carries the burden of sustaining that action upon judicial review. ORS 192.490(1).

Plaintiff assigns as error the trial court's decision to dissolve the TRO on the basis that the court did not have jurisdiction to issue a stay of a Bar disciplinary proceeding. ORS 9.529 provides that Bar disciplinary proceedings "are sui generis and within the inherent power of the Supreme Court to control." The Supreme Court has further explained that

"[d]isciplinary rules approved by this court have the status of law in Oregon. ORS 9.490. The enforcement of those rules by means of imposing disciplinary sanctions is in the jurisdiction of the professional boards created by the Oregon State Bar Rules of Procedure and ultimately of this court. It does not involve the state's other courts." State ex rel. Bryant v. Ellis, 301 Or. 633, 636, 724 P.2d 811 (1986) (emphasis added).

We therefore affirm the trial court's order dissolving the TRO.

Plaintiff also assigns as error the trial court's conclusion that there were no factual issues in dispute and that the Bar was entitled to judgment as a matter of law. Specifically, plaintiff argues that summary judgment was not appropriate in this instance, because none of the records he has requested falls within the exemptions from disclosure under the Oregon Public Records Act. The Bar responds that the trial court did not err and that the exempted materials constitute internal advisory communications that are exempt from disclosure under ORS 192.502(1).³

The requirements of ORS 192.502(1) are several. Under that exemption, a public record is exempt from disclosure if it meets all the following criteria: (1) It is a communication within a public body or between public bodies; (2) it is of an advisory nature preliminary to any final agency action; (3) it covers other than purely factual materials; and (4) in the particular instance, the public interest in encouraging frank communication clearly outweighs the public interest in disclosure.

Generally, we review public records proceedings de novo on the record. ORS 192.490(1); Turner v. Reed, 22 Or.App. 177, 189 n. 10, 538 P.2d 373 (1975). However, we do not ignore the fact that this case is on appeal from a summary judgment. Dimeo v. Gesik, 164 Or.App. 567, 569, 993 P.2d 183 (1999). See also City of Portland, 163 Or. App. at 552, 988 P.2d 402 (applying summary judgment standard of review in public records disclosure case). Consequently, 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. ORCP 47 C; Jones v. General Motors Corp., 325 Or. 404, 420, 939 P.2d 608 (1997). We view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the nonmoving party, in this instance plaintiff. Id. at 408, 939 P.2d 608. We will affirm only if no objectively reasonable factfinder could return a verdict for plaintiff. ORCP 47 C.

The trial court record consisted of memoranda in support of and in opposition to the motion for summary judgment, affidavits from plaintiff and a Bar representative (Sapiro affidavit), the Attorney General's order pertaining to the records at issue here, other related documents, and a 1989 Attorney General disclosure order. Because the trial court did not inspect the Bar records, the trial court's knowledge of the requested records was based upon a description, prepared by the Bar, of all the materials related to the Bar disciplinary action against plaintiff. The Bar's description of the exempted materials is as follows:

"1. The LPRC file actually consists of three files:

"(a) a file containing material regarding the assignment to the investigator. There are 35 pages, two of which we claim are exempt. The two pages contain the analysis portions of the staff memo assigning this matter to the LPRC;

"(b) a file containing the investigator's working file in the investigation, approximately 100 pages. * * * We do claim exemption for 24 pages which contain the investigator's draft analysis, final analysis, recommendation and other written material where his thought process or mental impressions are evident. On occasion, the investigator apparently wrote notes to himself on letters he received. * * * [W]e will redact the hand-written notes from the copy we make available to [plaintiff]. A copy of the staff memo assigning this matter to the PLRC is also found in this file. As mentioned above in # 1(a), we claim exemption to the analysis sections of the memo.

"* * * * *

"(6) Disciplinary Counsel's Office has a file consisting of 55 pages. We claim exemption to 12 of those pages, consisting of those portions of staff reports and the LPRC report that contain internal analysis or recommendations. Where a page contains both public and exempt materials, we will redact the exempt material and make the rest available."

That description was included in a letter that also described the materials that the Bar concluded were subject to disclosure and the materials requested by plaintiff that do not exist.

We conclude that, given the nature of this particular dispute—a public records request related to a still-active disciplinary proceeding against an attorney—and the trial court record, the trial court erred when it granted defendant's motion for summary judgment.

The trial court record arguably establishes that the requested documents, including the exempted portions, constitute communications within a public body or between public...