509 P.3d 99
Or.2022Background
- Mark Bartlett requested four public records (three city-attorney opinions and one legal memorandum) prepared by the Portland City Attorney for the mayor and two commissioners more than 25 years earlier.
- The City of Portland refused disclosure, asserting the attorney-client privilege; the county district attorney ordered release and the city sued for a declaratory judgment that the records were exempt.
- The Multnomah County Circuit Court granted summary judgment for the city; the Oregon Court of Appeals reversed in an en banc decision.
- The Oregon Supreme Court granted review to decide whether ORS 192.390’s 25-year disclosure requirement overrides attorney-client privileged public records and whether that reading violates municipal home-rule.
- The parties agreed the documents were public records, privileged under OEC 503, and older than 25 years; no other exemption was asserted.
- The Supreme Court held ORS 192.390 requires disclosure of such records and that applying the statute to city records does not violate home-rule.
Issues
| Issue | City of Portland (Plaintiff) Argument | Bartlett (Defendant) Argument | Held |
|---|---|---|---|
| Whether ORS 192.390 requires disclosure of public records older than 25 years notwithstanding the catchall exemption in ORS 192.355(9)(a) (which covers records "confidential or privileged under Oregon law"). | The "notwithstanding" clause was not meant to sweep in privileges (like the attorney-client privilege) that are not expressly listed in the public records statutes; to read it so broadly is redundant and incorrect. | ORS 192.390 unambiguously requires disclosure of records older than 25 years "notwithstanding ORS 192.355," and the catchall exemption includes attorney-client privileged public records, so they must be disclosed. | Held for Bartlett: the text and context of ORS 192.390 require disclosure of public records >25 years old notwithstanding ORS 192.355(9)(a). |
| Whether the attorney-client privilege in OEC 503 creates a conflict that precludes enforcement of ORS 192.390. | OEC 503 provides an unlimited privilege to refuse disclosure and is not overridden by the public records law; disclosure would conflict with the privilege. | The statutes operate independently; OEC 503(7) contemplates that privileged communications may be disclosed under the public records law without waiving evidentiary privilege. | Held for Bartlett: no irreconcilable conflict—OEC 503(7) confirms disclosure under public records law can occur while preserving evidentiary privilege. |
| Whether applying ORS 192.390 to privileged municipal records violates Oregon home-rule provisions (Or Const Art IV §1(5) and Art XI §2). | Requiring disclosure of privileged communications of a home-rule city interferes with municipal structure and charter-granted powers and exceeds state power over municipal charters/procedures. | The public records law is a statewide substantive statute of general applicability; home-rule does not bar state laws that affect municipalities and state law displaces inconsistent local law. | Held for Bartlett: no home-rule violation; ORS 192.390 is a general state law and does not unconstitutionally impair municipal home-rule. |
| Whether legislative history or silence indicates the legislature did not intend ORS 192.390 to apply to attorney-client communications. | The 1979 origin and subsequent legislative history do not show consideration of attorney-client privilege; thus the legislature likely did not intend the 25-year disclosure to include privileged records. | Legislative history is silent on the point; where text and statutory context are clear, they control; the legislature has elsewhere enacted specific exceptions when intended. | Held for Bartlett: legislative history is essentially silent; clear statutory text and context govern and support disclosure. |
Key Cases Cited
- State v. Gaines, 346 Or 160 (statutory interpretation framework—text and context control)
- Kinzua Resources v. DEQ, 366 Or 674 (application of Gaines principles)
- Guard Publ’g Co. v. Lane County School Dist., 310 Or 32 (public records law: disclosure is the rule; exemptions narrowly construed)
- Am. Civil Liberties Union v. City of Eugene, 360 Or 269 (people’s right to inspect public records is fundamental)
- State ex rel. OHSU v. Haas, 325 Or 492 (importance and public-interest basis of attorney-client privilege)
- Oregonian Publ’g Co. v. Portland School Dist. No. 1J, 329 Or 393 (history and purpose of the catchall exemption)
- Crimson Trace Corp. v. Davis Wright Tremaine LLP, 355 Or 476 (limits on nonstatutory exceptions to attorney-client privilege)
- City of Damascus v. State of Oregon, 367 Or 41 (home-rule principles; state may enact substantive law affecting municipalities)
- LaGrande/Astoria v. PERB, 281 Or 137 (home-rule background and limits on state interference with municipal structure)