Chaimov v. State

Under ORS 173.130(2), “[u]pon the written request of a state agency, the Legislative Counsel may prepare or assist in the preparation of legislative measures that have been approved for preparation . . . .”

Plaintiff appealed the reversal of summary judgment for an action to request draft legislation under the Public Records Law. Plaintiff assigned error to the court’s conclusion that completed request forms prepared by state agencies seeking draft legisolation was subject to attorney-client privilege. Plaintiff argued that the request forms should not be subject to attorney-client privilege of OEC 503 according to ORS 173.130(5) which states, "the Legislative Counsel shall not... provide other legal services... to persons or agencies..." . State argued that the request forms were subject to attorney-client privilege under ORS 173.130(2), which provides that “[u]pon the written request of a state agency, the Legislative Counsel may prepare or assist in the preparation of legislative measures that have been approved for preparation . . . .” The Court reasoned that drafting legislation is a legal service and that ORS 173.130(2) clearly demonstrates that the Legislative Counsel can provide that service to state agencies and to read ORS 173.130(5) in favor of the plaintiff would render 173.130(2) meaningless. Further, the Court reasoned that the form clearly should be confidential and that any disclosure to the Legislative Counsel Committee would not waive confidentiality, because the communication would done to further the legal services. Lastly, the request forms do not need to be delivered to the office of Legislative Counsel to maintain confidentiality. Accordingly, the Court held that the draft legislation was subject to attorney-client privilege and therefore exempt from the Public Records Law. Affirmed.