520 P.3d 406
Or.2022Background
- In July 2018 plaintiff requested copies of agencies’ completed "2019 Agency Request to Office of Legislative Counsel for Drafting of Legislation" forms used to propose bills for the 2019 session.
- The blank forms were labeled "Confidential and Attorney-Client Privileged" and instructed agencies not to share form text outside state government; DAS told agencies the forms would be temporarily exempt until drafts were returned.
- Agencies submitted 270 forms to DAS for gubernatorial review; 234 were later submitted to the Office of Legislative Counsel for bill drafting.
- DAS denied the public-records request asserting the forms were protected by the attorney-client privilege; the Attorney General agreed.
- The trial court ordered disclosure; the Oregon Court of Appeals reversed, holding the forms privileged; the Oregon Supreme Court affirmed the Court of Appeals, reversed the trial court, and remanded.
Issues
| Issue | Chaimov's Argument | DAS's Argument | Held |
|---|---|---|---|
| Whether attorney-client communications under OEC 503 are exempt under ORS 192.355(9)(a) | Privilege should not bar access where public-records law favors disclosure | OEC 503 privilege is an Oregon-law privilege and falls within ORS 192.355(9)(a) exemption | Exemption includes OEC 503 communications; privilege can exempt records from disclosure |
| Whether the Office of Legislative Counsel provides legal services to state agencies/Governor (making them a client) or only to the Legislative Assembly | OL Counsel provides services only to the Legislative Assembly; agencies must use DOJ for legal services | ORS 173.130(2) authorizes OL Counsel to prepare measures on written request of a state agency approved by the Governor; agencies (and the Governor) are within client/representative definitions | OL Counsel provides bill‑drafting legal services to the Governor (client); agencies are client representatives; statutory text and history support that result |
| Whether completed request forms were "confidential communications" under OEC 503(1)(b) | Forms not confidential because (a) some substance may have been shared with stakeholders, (b) possibility of later disclosure, or (c) potential disclosure to Legislative Counsel Committee | Forms were expressly designated confidential and privileged; privilege attaches to communications (not merely facts); limited disclosures to further legal services do not defeat confidentiality | Forms were communications intended to be confidential and so qualify as confidential communications under OEC 503 |
| Whether forms never submitted to OL Counsel (withdrawn or rejected) are privileged | Privilege requires communication to a lawyer, so forms never sent to OL Counsel are not privileged | OEC 503 protects communications made for the purpose of facilitating legal services and includes communications among client and client representatives even before delivery to lawyer | Privilege attached when the confidential communication was made to facilitate legal services, even if not later delivered to OL Counsel |
Key Cases Cited
- City of Portland v. Rice, 308 Or 118 (discussing Oregon public-records disclosure policy)
- City of Portland v. Bartlett, 369 Or 606 (confirming ORS 192.355(9)(a) covers attorney-client privileged communications)
- Gaines v. State, 346 Or 160 (statutory interpretation methodology)
- PGE v. Bureau of Labor and Industries, 317 Or 306 (statutory construction maxims)
- Rooney v. Kulongoski, 322 Or 15 (separation-of-powers framework)
- Frohnmayer v. SAIF, 294 Or 570 (discussion of ORS 180.220 in statutory context)