Brown v. Guard Publishing Co.
267 Or. App. 552
| Or. Ct. App. | 2014Background
- EWEB (a municipal electric utility) contracted with Seneca (a biomass generator) for power; Register-Guard requested the purchase contract under Oregon public records law.
- EWEB refused disclosure citing exemptions in ORS 192.502(26) (sensitive electricity-related business/commercial/financial information whose disclosure would cause competitive disadvantage); Seneca intervened to oppose disclosure.
- Lane County DA ordered disclosure; EWEB and Seneca sued for declaratory and injunctive relief and moved for summary judgment that the entire contract is exempt. Register-Guard cross-moved, arguing redaction under ORS 192.505 was required. The trial court held the whole contract exempt and entered judgment for EWEB and Seneca.
- On appeal, the court reviewed the summary judgment record (which did not include the contract itself) and the parties’ affidavits asserting harm from disclosure and confidentiality agreements between the parties.
- The appellate court concluded the record did not establish that every part of the contract constituted "sensitive business, commercial or financial information" the disclosure of which would cause a competitive disadvantage, and reversed and remanded for further proceedings (possibly including in camera review).
Issues
| Issue | Plaintiff's Argument (Register-Guard) | Defendant's Argument (EWEB/Seneca) | Held |
|---|---|---|---|
| Whether ORS 192.502(26) permits withholding an entire power purchase contract | The public body must separate exempt from nonexempt material and provide redacted document under ORS 192.505; Register-Guard lacks the contract so specific objections are premature | The contract is the product of negotiations and should be treated as indivisible "information" wholly exempt; redaction is unnecessary and would defeat the exemption's purpose | Reversed: the statute targets "information" and redaction is required where possible; the record did not show the entire contract met both elements of the exemption |
| Whether affidavits asserting general competitive harm suffice on summary judgment | Affidavits must identify particular exempt information; generalized assertions are insufficient | Affidavits showing confidentiality and likely market effects justify treating the contract as wholly exempt without in camera review | Held for Register-Guard: affidavits were too general to compel the conclusion that all contract contents are exempt; genuine factual issues remain |
| Proper standard of review on appeal from summary judgment in public records cases | De novo public-records review but must honor summary judgment standards (view facts in light most favorable to nonmoving party) | Same; defendants argued trial court could decide without contract in record | Court applied summary judgment standard and found issues of fact precluded judgment as a matter of law |
| Whether in camera review or alternative procedures were required before affirming nondisclosure | Register-Guard argued absence of the document in the record and limited affidavits meant in camera review or more specific proof was necessary | Defendants argued in camera review not always necessary where affidavits demonstrate confidentiality | Court found in camera review not always required but on this record further proceedings (and possibly in camera review) were appropriate |
Key Cases Cited
- Guard Publishing Co. v. Lane County School Dist., 310 Or 32 (exemptions construed narrowly; disclosure is the rule)
- Jones v. General Motors Corp., 325 Or 404 (summary judgment standard: view facts in light most favorable to nonmoving party)
- Kluge v. Oregon State Bar, 172 Or App 452 (agency descriptions alone insufficient; need more than assertions when records not reviewed in camera)
- Hagler v. Coastal Farm Holdings, Inc., 354 Or 132 (summary judgment standard explanation)
- Port of Portland v. Ore. Center for Environ. Health, 238 Or App 404 (distinguishing exemptions that make entire documents privileged/confidential)
- State v. Gaines, 346 Or 160 (statutory interpretation methodology)
- In Defense of Animals v. OHSU, 199 Or App 160 (interpretation of "sensitive" in similar exemptions)
- Turner v. Reed, 22 Or App 177 (practical limits and standards for redaction under predecessor statute)
- Mail Tribune, Inc. v. Winters, 236 Or App 91 (burden on public body to establish exemptions on an individualized basis)