Water v. Holloway

• Court: Oregon Court of Appeals
• Writing for the Court: SCHUMAN
• Citation: Water v. Holloway, 261 Or.App. 852, 322 P.3d 614 (Or. App. 2014)
• Decision Date: 26 March 2014
• Docket Number: A149667.,LV11040413
• Parties: CLACKAMAS RIVER WATER, Plaintiff–Respondent, v. Patricia HOLLOWAY and Warren Mitchell, Defendants–Appellants.

261 Or.App. 852

322 P.3d 614

CLACKAMAS RIVER WATER, Plaintiff–Respondent,

v.Patricia HOLLOWAY and Warren Mitchell, Defendants–Appellants.

LV11040413; A149667.

Court of Appeals of Oregon.

Argued and Submitted May 17, 2013.

Decided March 26, 2014.

James D. Huffman argued the cause and filed the briefs for appellant Patricia Holloway. Michael F. Sheehan filed the briefs for appellant Warren Mitchell.

Brenda K. Baumgart argued the cause for respondent. With her on the brief were Karen L. O'Connor and Stoel Rives LLP.

Before DUNCAN, Presiding Judge, and WOLLHEIM, Judge, and SCHUMAN, Senior Judge.

SCHUMAN, S.J.

Clackamas River Water (CRW), a domestic water supply district, brought this action seeking a declaration that defendants had to return to CRW documents that defendants had obtained through a public records request, so that CRW could determine which parts of the documents, if any, should have been withheld because they were exempt from public disclosure. CRW also sought a “temporary and preliminary” injunction requiring defendants immediately to return the documents. In response, defendants invoked Oregon's Anti–SLAPP statute, under which a defendant in an action arising out of some forms of the defendant's public participation can file a “special motion to strike” a plaintiff's claim unless the plaintiff can establish, at a preliminary hearing, “a probability that the plaintiff will prevail on the claim.” ORS 31.150(1), (3).¹ The trial court granted defendants' special motions and dismissed CRW's complaint. However, the trial court also included in the judgment an order that granted CRW injunctive relief. The judgment states:

“IT IS HEREBY ORDERED that defendants' respective Special Motions to Strike are GRANTED. It is also ordered that defendants are hereinafter prohibited from using, disclosing, or otherwise disseminating any records created, maintained, or kept in the ordinary course of plaintiff's business that are now or have been in defendants' possession at any time, if such records are or would be exempt from disclosure under Oregon's public records law, ORS 192.410 to 192.505.”

Defendants appeal the judgment, characterizing the second sentence as a grant of the injunction that CRW sought and to which the court determined, in the first sentence, that CRW was not entitled. CRW, for its part, does not cross-appeal; it concedes, in other words, that its action against defendants “arises out of” defendants' statements in a proceeding authorized by law—presumably, defendants' written request for CRW to comply with the public records law—and that CRW could not establish a probability that it would prevail on its claim. Rather, CRW characterizes the judgment as “effectively dismissing [CRW's] claims, and fashion[ing] appropriate equitable relief.” We agree with defendants. We therefore reverse and remand.

Because this action ended at an early stage, before either party had the opportunity to develop a factual record, and because the court made no findings, the facts are murky. As best we can discern, they are as follows. CRW, as noted above, is a domestic water supply district organized under ORS chapter 264 and subject to the public records disclosure laws in ORS chapter 192. Defendant Holloway was at all relevant times a CRW board member, and defendant Mitchell is a former board member. Between September 2007 and January 2008, Mitchell repeatedly sent public records requests to CRW's management seeking several months' e-mails sent or received through the CRW e-mail system. When his repeated requests went unfulfilled, Mitchell, pursuant to ORS 192.450 and ORS 192.460,² petitioned the Clackamas County District Attorney for an order requiring CRW to disclose the requested records.

The district attorney's office contacted CRW and informed it of the request. CRW provided a letter in response, attached to which were six compact computer discs. CRW claimed that “each individual disc” contained all of the requested e-mails. CRW also explained that it had not verified the contents of the discs and that it was possible that the discs contained material that could be exempt from public records requests. Specifically, CRW seems to have been concerned that the discs might have contained private personal information about CRW employees, as well as documents subject to attorney-client privilege. The district attorney's office did not open the contents of the discs due to “software problems.” Nevertheless, the district attorney issued an order explaining that e-mails are generally subject to disclosure as public records and that it was CRW's “responsibility to review [its] own records to determine whether any specific personal privacy exemptions or attorney-client privileges exist and to adequately articulate the same.” Finally, the order allowed petitioner's request “for disclosure of all emails received or sent through the Clackamas River Water e-mail system for the period July 2, 2007 through January 3, 2008 * * * as to all non-exempt e-mail detailing the public's business.” Presumably, “non-exempt” meant e-mail that CRW determined was not exempt from disclosure under the public records law. The district attorney, in other words, ordered CRW to determine which e-mails were exempt from disclosure, and to release the others to Mitchell.

Subsequently, in February and March of 2008, CRW's acting general manager, Lidston, provided Mitchell with approximately 24 computer disks—18 more than the district attorney had seen—supposedly containing all of the requested records, without claiming that any were exempt from disclosure. The parties disagree about some of the facts underlying that event. Defendants appear to assert that CRW turned over the records in response to the district attorney's order. CRW, however, while acknowledging that its acting general manager at the time (Lidston) arranged for defendants to receive “24 or possibly more computer discs,” nonetheless alleged in its complaint that “[d]efendants did not obtain the documents pursuant to the public records request process.” Regardless of whose account is more accurate, it is undisputed that (1) Mitchell repeatedly requested certain e-mails, (2) CRW originally did not provide them, (3) Mitchell requested intervention from the district attorney, (4) the district attorney ordered CRW to provide nonexempt e-mails, and (5) CRW's general manager subsequently provided Mitchell with the computer discs that CRW, in this action, wants returned. Holloway apparently received the discs from Mitchell.

In February 2009, CRW, having hired a new general manager, began its attempt to secure the return of the computer discs. It intensified its efforts after a representative of CRW's employees' union protested that the employees had “concerns * * * about the possible mishandlings of employees' personal information.” A series of communications between CRW and defendants followed. CRW offered to have the information in the discs reviewed by a neutral third-party who would identify information that was exempt from public disclosure, allowing defendants to retain the other information. Defendants did not accept the offer and did not return the discs.

CRW subsequently brought this action against defendants, asking for a judgment declaring that “defendants are required, in their capacities as both current or former CRW Commissioners and members of the public, to return the documents to CRW, so that CRW may determine what information the documents contain that is exempt from public disclosure.” CRW also requested an order “for temporary and preliminary injunctive relief, specifically requiring that defendants immediately return the documents to CRW, which shall remain in full force and effect until such time as the Court orders otherwise.” With respect to its claim for injunctive relief, CRW argued that it had no adequate remedy at law and it would “be irreparably harmed by defendants' continued possession of information that is likely exempt from public disclosure along with the possibility that such information will be disclosed to additional members of the public thus exposing CRW to the possibility of legal action by employees who feel their privacy rights may have been violated.”

In response, defendants filed special motions to strike under ORS 31.150, the “Anti–SLAPP statute.” Defendant Mitchell argued that CRW's case was a civil action arising out of a public records request. Thus, according to Mitchell, defendants had succeeded in making a prima facie showing that the case arose out of a proceeding authorized by law. Mitchell then argued that CRW would be unable to meet its burden by “establish[ing] that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case,” as required by ORS 31.150(3). Defendant Holloway filed a similar motion providing additional reasons why CRW could not meet its burden.

A hearing on defendants' special motions to strike occurred in July 2011. During the hearing, it became clear that CRW did not know precisely what information had been provided to defendants. The court reluctantly granted defendants' motions dismissing CRW's claim, explaining that “the motion at least on its face does appear to be an appropriate use of the anti-SLAPP statute.” ³ CRW responded that dismissing the lawsuit would leave it without any way of recovering any personal employee information that may have been disclosed. The court sought to address that concern by suggesting that the court add language to the order that would “prohibit the defendants from using, disseminating, [or] publishing” such information. Both defendants objected to the court's proposed order, to no avail.⁴ This appeal ensued.

The trial court's judgment and CRW's defense of it find no support in the law. For instance, CRW repeatedly states that the court did nothing more than require defendants to obey the mandates of...