City of Portland v. Bartlett

Under ORS 192.390, public records shall be made available after twenty-five years “notwithstanding ORS 192.355.” ORS 192.355(9)(a) creates an exemption for the disclosure of privileged documents.

The city appealed a Court of Appeals decision which required the city to release communications subject to attorney-client privilege because the documents fell within the public records law. The city assigned error to the Court of Appeals’ assignment that materials subject to attorney-client privilege must be released under ORS 192.390. The city argued the documents are not subject to mandatory disclosure because attorney-client privilege was created independently of the public records law and it was outside the legislature’s intent. In response, Defendant argued that “privilege” and “exemption” as independent concepts that do not necessarily have the same outcomes under the statute. Under ORS 192.390, public records shall be made available after twenty-five years “notwithstanding ORS 192.355.” ORS 192.355(9)(a) creates an exemption for the disclosure of privileged documents. The Court reasoned that while attorney-client privileged documents were not part of the creation of public records law, they do fall under ORS 192.355(9)(a) as privileged material. However, the Court reasoned that the language of ORS 192.390 requires those materials to be released after 25 years despite the exemption under ORS 192.355. Accordingly, the city must release the documents. Court of Appeals decision affirmed and remanded.