City of Portland v. Bartlett

580

Argued and submitted June 10, 2019; resubmitted en banc February 12;

reversed and remanded June 10, 2020

CITY OF PORTLAND,

an Oregon municipal corporation,

Plaintiff-Respondent,

v.

Mark BARTLETT,

Defendant-Appellant.

Multnomah County Circuit Court

16CV01529; A164469

468 P3d 980

Defendant appeals from a judgment granting declaratory relief to plaintiff

City of Portland. The trial court granted the city’s motion for summary judgment,

ruling that public records that defendant sought were exempt from disclosure

because they were attorney-client privileged. The court also denied defendant’s

cross-motion for summary judgment that contended that the city must permit

disclosure of the same public records under ORS 192.390, which provides that

documents that are otherwise exempt from disclosure under certain provisions

of Oregon public records law must be disclosed if they are more than 25 years

old. Defendant appeals, assigning error to those rulings. Held: The trial court

erred in granting summary judgment to the city. ORS 192.390 requires disclo-

sure of attorney-client privileged public records that are older than 25 years old.

Further, ORS 192.390 does not violate the city’s home-rule authority under the

Oregon Constitution. Finally, ORS 192.390 does not preempt PCC 3.10.060, a

provision of Portland City Code that identifies the relationships between the city

attorney and the city’s various staff and agencies.

Reversed and remanded.

En Banc

Eric J. Neiman, Judge pro tempore.

Duane A. Bosworth argued the cause for appellant. Also

on the briefs was Davis Wright Tremaine LLP.

Denis M. Vannier argued the cause and filed the brief for

respondent.

Philip M. Thoennes filed the brief amicus curiae for

League of Oregon Cities.

Before Egan, Chief Judge, and Armstrong, Ortega, DeVore,

Tookey, DeHoog, Shorr, James, Aoyagi, Powers, Mooney, and

Kamins, Judges.

Cite as 304 Or App 580 (2020) 581

SHORR, J.

Reversed and remanded.

Powers, J., dissenting.

582 City of Portland v. Bartlett

SHORR, J.

Defendant appeals from a judgment granting

declaratory relief to plaintiff City of Portland (city). The trial

court granted the city’s motion for summary judgment, rul-

ing that public records that defendant sought were exempt

from disclosure because they were attorney-client privileged

documents. The court also denied defendant’s cross-motion

for summary judgment that contended that the city must

permit disclosure of the same public records. Defendant

appeals, assigning error to those rulings. Because we con-

clude that, in these circumstances, ORS 192.390 requires

the disclosure of public records more than 25 years old, not-

withstanding the exemption for privileged documents, we

reverse and remand.

In Oregon, “[e]very person has a right to inspect

any public record of a public body in this state, except as

otherwise expressly provided by ORS 192.338, 192.345

and 192.355.” ORS 192.314.1 Defendant submitted a pub-

lic records request to the city, seeking release of four docu-

ments that were all created more than 25 years ago: three

city attorney opinions and one memorandum from then-city

attorney Jeffrey Rogers to then-Mayor Bud Clark and then-

City Commissioners Lindberg and Bogle. The city denied

defendant’s request, asserting attorney-client privilege

under OEC 503 and contending that the documents were

therefore exempt from disclosure under ORS 192.355(9)(a).

Defendant then petitioned the Multnomah County District

Attorney to review the city’s denial of his request and to

order the disclosure of the records.2 The district attorney

issued an order granting defendant’s petition and ordering

the city to promptly disclose the records. The district attor-

ney concluded that ORS 192.390 unambiguously required

disclosure of records older than 25 years, notwithstanding

any claim of privilege by the city.

1

The provisions of ORS chapter 192 that are relevant to this appeal were

renumbered in 2017. The statutes have not changed unless otherwise noted

herein; we use the current numbering throughout this opinion.

2

Under ORS 192.411 and ORS 192.415, the district attorney had authority

to review the denial of defendant’s request and to issue an order granting or

denying the request.

Cite as 304 Or App 580 (2020) 583

The city then sought a declaratory judgment that

the “documents ordered produced by the District Attorney

are attorney-client privileged material exempt from disclo-

sure under ORS 40.255.” Defendant filed a counterclaim

seeking a declaratory judgment that the records must be

disclosed. The city moved for summary judgment, arguing

that the district attorney incorrectly construed ORS 192.390

and that the records were exempt from disclosure as a mat-

ter of law. Defendant filed a cross-motion for summary judg-

ment also seeking declaratory relief.

After a hearing, the trial court concluded that the

documents “remain privileged” and, accordingly, granted

the city’s motion for summary judgment. In a letter opinion,

the court explained:

“ORS 40.225 and ORS [192.390] are in direct conflict.

ORS 40.225 does not include a temporal limit on documents

it protects nor create an exception for public records. ORS

[192.390] does not include an exception for attorney-client

privileged documents that are more than 25 years old in

the carve outs listed in [ORS 192.398]. The two statutes

cannot be harmonized.

“Together, ORS 174.010 and 174.020 require the court

to construe a statute by both looking to its plain meaning

and, if possible, ascertaining legislative intent. See State v.

Gaines, [346 Or 160, 206 P3d 1042 (2009)]. Here, the first

level of analysis—plain meaning of the two statutes—does

not resolve the issue. The question then becomes whether, in

adopting ORS [192.390] in 1979, the Legislative Assembly

intended for public records protected by the attorney-client

privilege to lose their exempt status after 25 years.

“The legislative history of ORS [192.390] includes no

reference to attorney-client privilege or, for that matter,

any clue whether the Legislative Assembly intended to

impose a time limit on the privilege in the government set-

ting. Without a more definitive statement of intent to ter-

minate a fundamental privilege on which clients (including

government clients) rely, the court should be reluctant to

require disclosure of documents which were intended to be

confidential.

“On the other hand, the legislative history suggests

that ORS [192.390] had a defined purpose, which was the

584 City of Portland v. Bartlett

simplification of certain types of research. This interpreta-

tion of statutory intent is buttressed by the fact that, in cod-

ifying the attorney-client privilege in 1981, the Legislative

Assembly did not create an exception for public records.

“After considering all of the arguments and the entire

summary judgment record, the court concludes that the

documents remain privileged.”

The court entered a general judgment granting the city’s

requested declaratory relief.

Defendant now appeals from that judgment, assign-

ing error to the trial court’s grant of the city’s motion for

summary judgment and its denial of defendant’s motion.

“On review of cross-motions for summary judgment, we view

the record for each motion in the light most favorable to the

party opposing it to determine whether there is a genuine

issue of material fact and, if not, whether either party is

entitled to judgment as a matter of law.” O’Kain v. Landress,

299 Or App 417, 419, 450 P3d 508 (2019); see also Kluge v.

Oregon State Bar, 172 Or App 452, 457, 19 P3d 938 (2001)

(explaining, in the context of a public records proceeding,

that “we do not ignore the fact that this case is on appeal

from a summary judgment” and “[c]onsequently, we review

the summary judgment to determine whether there are any

genuine issues of material fact and whether the moving

party is entitled to judgment as a matter of law”). Here, the

only question is a legal one concerning the interpretation of

statutes.

Defendant argues that ORS 192.390 unambiguously

requires the disclosure of public records older than 25 years,

notwithstanding the attorney-client privilege, and that the

trial court erred in concluding otherwise. The city responds

that the documents that defendant seeks are protected by

attorney-client privilege as defined in OEC 503, and that

the legislative history of ORS 192.390 does not indicate that

the legislature intended to abrogate that privilege. The par-

ties do not dispute that the records in question are subject

to attorney-client privilege and that they are older than 25

years.

The question before us is whether the legislature, in

enacting ORS 192.390, intended to require the disclosure of

Cite as 304 Or App 580 (2020) 585

public records older than 25 years even though those records

are otherwise exempt from disclosure under ORS 192.355

(9)(a) because they are subject to attorney-client privilege

under OEC 503. To answer that question, we first construe

ORS 192.390, which states as follows:

“Notwithstanding ORS 192.338, 192.345 and 192.355

and except as otherwise provided in ORS 192.398, public

records that are more than 25 years old shall be available

for inspection.”

(Emphases added.) As always, when construing a statute,

the “paramount goal” is to effectuate the intention of the

legislature. Gaines, 346 Or at 171. In reaching that goal,

we consider the text of the statute in context, along with

any legislative history that is helpful. Id. at 171-72. If the

legislature’s intentions remains unclear, we then resort to

general maxims of statutory construction. Id. at 172. As the

Supreme Court observed in Gaines, “there is no more per-

suasive evidence of the intent of the legislature than the

words by which the legislature undertook to give expression

to its wishes.” Id. at 171 (internal quotation marks omitted).

Here, the text of ORS 192.390 unambiguously states

that records that are older than 25 years shall be disclosed,

notwithstanding the exemptions from disclosure contained

in ORS 192.355. In turn, ORS 192.355 provides, in relevant

part:

“The following public records are exempt from disclo-

sure under ORS 192.311 to 192.478:

“* * * * *

“(9)(a) Public records or information the disclosure of

which is prohibited or restricted or otherwise made confi-

dential or privileged under Oregon law.”

Attorney-client privilege is a “privilege under Oregon law”

that is incorporated into ORS 192.355(9)(a).3 See generally

3

The OEC 503 attorney-client privilege is also specifically discussed in ORS

192.355(9)(b)(A). That section provides that certain factual information in a pub-

lic record that may otherwise be subject to a claim of privilege under OEC 503

may nevertheless be subject to disclosure when certain conditions are met. The

application of ORS 192.355(9)(b) is not at issue in this case although that section

is context for our statutory analysis.

586 City of Portland v. Bartlett

Port of Portland v. Ore. Center for Environ. Health, 238 Or

App 404, 409-10, 243 P3d 102 (2010), rev den, 350 Or 230

(2011) (noting that, when considered together, OEC 503 and

ORS 192.502(9)(a) exempt attorney-client privileged doc-

uments from public records disclosure laws). Considered

together, ORS 192.355(9) and ORS 192.390 indicate that,

notwithstanding any attorney-client privilege that would

otherwise exempt records from disclosure, public records

that are more than 25 years old “shall,” that is, must, be

disclosed. See Doyle v. City of Medford, 356 Or 336, 366,

337 P3d 797 (2014) (noting that the term “shall” ordinarily

imposes a mandatory duty).

The context of the public records statutes also favors

disclosure. As noted above, ORS 192.314 requires disclosure

of public records except as otherwise expressly provided.

As the Supreme Court has observed, “Under the statutory

scheme, disclosure is the rule. Exemptions from disclosure

are to be narrowly construed.” Guard Publishing Co. v. Lane

County School Dist., 310 Or 32, 37, 791 P2d 854 (1990).

The city raises various arguments for why we should

overlook the text of ORS 192.390, none of which persuade

us. The city first contends that the overall 25-year cap in

ORS 192.390 on exemptions from public disclosure applies

only to those exemptions that are created specifically within

the public records laws—“such as the exemptions for per-

sonal medical information [ORS 192.355(2)(a)] and [r]ecords

of the Energy Facility Siting Council [ORS 192.355(11)]”—

and should be interpreted to exclude the catch-all provi-

sion of ORS 192.355(9). (Internal quotation marks omitted.)

That proposed interpretation, however, would require us to

ignore the plain text of ORS 192.390, which we cannot do.

See ORS 174.010 (“In the construction of a statute, the office

of the judge is simply to ascertain and declare what is, in

terms or in substance, contained therein, not to insert what

has been omitted or to omit what has been inserted[.]”). ORS

192.390 states that, “[n]otwithstanding” the exemptions in

ORS 192.355—which necessarily includes the confidential-

ity and privilege exemption under ORS 192.355(9)—records

older than 25 years “shall” be disclosed. As we discuss fur-

ther below, ORS 192.390 does not treat one exemption in

ORS 192.355 differently from any other.

Cite as 304 Or App 580 (2020) 587

We also understand the city to contend more broadly

that, even if attorney-client privileged records are not exempt

from disclosure under the public records law, the city never-

theless retains the right not to disclose privileged records

under the independent grounds of OEC 503. We address

that issue again later in this opinion when we address

whether there is a conflict between the public records law

and OEC 503. We note that our review in this case is limited

to the public records law and its interaction with OEC 503.4

Significantly, OEC 503(7) provides that “a privilege is main-

tained under this section for a communication ordered to be

disclosed under ORS 192.311 to ORS 192.478 [the Oregon

Public Records Law].” OEC 503 works in harmony with the

public records law, and recognizes that public entities may

ultimately be ordered to disclose privileged records under

the public records law, but provides that the privilege is

maintained for the purpose of OEC 503 at least insofar as

the evidentiary rules are concerned. Therefore, even to the

extent that the city relies entirely on the privilege under

OEC 503 to withhold documents, OEC 503(7) provides that

privileged public records may be ordered disclosed under the

public records law, but the privilege survives the ordered

disclosure of those records for evidentiary purposes. As we

discuss later, the public records law and the evidence code

work together.

The city also points to the legislative history of the

public records law. The city argues that statements from the

state archivist to the relevant committees indicate that the

purpose of enacting ORS 192.390 was to simplify historical

and genealogical research and that attorney-client privi-

lege was not part of the consideration. See Exhibit F, House

Committee on Judiciary, HB 2011, May 17, 1979 (accompa-

nying statement from state archivist stating that “[t]his bill

4

We recognize that ORS 192.355 identifies many exemptions from disclo-

sure that may overlap with other laws that may provide independent bases for

confidentiality and nondisclosure. See, e.g., ORS 192.355(8) (exempting from dis-

closure under the public records law “[a]ny public records or information the dis-

closure of which is prohibited by federal law or regulations”). ORS 192.345 also

conditionally exempts from disclosure similar records that may have indepen-

dent bases for nondisclosure. See, e.g., ORS 192.345(2) (conditionally exempting

from disclosure trade secrets information). We do not finally resolve here how the

public records law interacts with other laws besides OEC 503 that may protect

the confidentiality or privilege of certain records.

588 City of Portland v. Bartlett

sets reasonable limits on the duration of access restrictions

which presently inhibit inspection of many public records”).

The state archivist’s statement acknowledges that the stat-

ute places an outer limit of 25 years, after which it would

be reasonable to permit general access to public records. We

otherwise find nothing in the legislative history of the state

archivist’s statement that sheds meaningful light on the

issue before us. And even setting that aside, “whatever the

legislative history might show about the legislature’s inten-

tions, those intentions must be reflected in actual statutory

wording that, when reasonably construed, is capable of car-

rying out such an intention.” State v. Patton, 237 Or App

46, 53, 238 P3d 439 (2010), rev den, 350 Or 131 (2011). Here,

the plain text of ORS 192.390 is capable of only one con-

struction: attorney-client privilege notwithstanding, public

records older than 25 years shall be disclosed.

We also note that ORS 192.390 does not require dis-

closure of all public records older than 25 years. The statute

specifically exempts from disclosure—even after 25 years—

those records identified in ORS 192.398, which, in general

terms, includes certain documents with medical informa-

tion regarding living persons; sealed court records; inmate,

supervisory, and custodial records; and exempt student

records. Those documents are either exempt from disclosure

for a longer time period than 25 years or are exempt from

disclosure altogether. Notably, ORS 192.398 does not exempt

from disclosure attorney-client privileged documents. That

ORS 192.398 continues to carve out certain typically confi-

dential documents from required disclosure even after 25

years demonstrates that the legislature considered whether

there were certain documents that were otherwise generally

confidential or privileged that deserved continued protection

from disclosure after 25 years. That consideration at least

did not extend that continued protection to attorney-client

privileged documents.

The trial court reasoned that, “[w]ithout a more

definitive statement of intent to terminate a fundamental

privilege on which clients (including government clients)

rely, the court should be reluctant to require disclosure

of documents which were intended to be confidential.” We

Cite as 304 Or App 580 (2020) 589

understand the trial court’s concern for the “fundamental”

privilege at stake, but the courts have also recognized that

the “people’s right to inspect public records is fundamen-

tal.” American Civil Liberties Union v. City of Eugene, 360

Or 269, 299, 380 P3d 281 (2016) (internal quotation marks

omitted). The legislature may limit a public body’s reliance

on attorney-client privilege after 25 years in favor of the

fundamental principle of public access. Again, the best indi-

cation of the legislature’s intention is the text of the statute

itself, which here is unambiguous.

The city also argues that OEC 503, which is the

“statutory embodiment of the attorney-client privilege in

this state,” State v. Riddle, 330 Or 471, 476, 8 P3d 980 (2000),

is more specific and therefore controls over the more general

provision in ORS 192.390. The rule that a particular provi-

sion controls over a general one applies only when there is

an irreconcilable conflict between the two provisions. Olsen

v. Deschutes County, 204 Or App 7, 13, 127 P3d 655, rev den,

341 Or 80 (2006) (“Applying the maxim necessarily renders

one of the [two] statutes—the older and more general—

meaningless, and should therefore be used only when a con-

flict actually exists and cannot be avoided.”); see also Wilson

v. Tri-Met, 234 Or App 615, 625, 228 P3d 1225, rev den, 348

Or 669 (2010) (“[I]f the full effect cannot be given to both

statutes, the more specific statute will control over the more

general one.”).

Here, there is no such unavoidable conflict. OEC

503 protects attorney-client privileged information and

ORS 192.355(9)(a) provides that public bodies are exempt

from disclosing privileged information. ORS 192.355(9)

expressly recognizes that attorney-client privileged records

are exempt from public disclosure. See ORS 192.355(9)(b)

(referring to the OEC 503 attorney-client privilege and

the treatment of factual information compiled in an other-

wise attorney-client privileged public record). ORS 192.390

then provides that, notwithstanding that exemption, pub-

lic records older than 25 years shall be disclosed. The two

statutes are not in unavoidable conflict, but rather present

a coherent set of rules whereby attorney-client privileged

documents that also are public records older than 25 years

590 City of Portland v. Bartlett

are required to be disclosed. As noted above, it is significant

that OEC 503 specifically contemplates that public records

that contain attorney-client privileged documents may be

ordered to be disclosed under the public records law but

provides that the privilege is maintained and the ordered

disclosure of such documents does not constitute a waiver of

the privilege. See OEC 503(7) (stating that, notwithstand-

ing OEC 511, addressing voluntary waiver of the privilege,

“a privilege is maintained under this section for a communi-

cation ordered to be disclosed under ORS 192.311 to 192.478

[the Oregon Public Records Law]”). The trial court erred in

ruling otherwise.

Before turning to address the city’s final argument,

we briefly address the well-stated dissent. Some of the dis-

sent’s arguments mirror those made by the city and are

addressed above. Our primary disagreement with the dis-

sent lies in its failure to grapple fully with ORS 192.314, its

stated rule, and the limited exemptions provided therein.

As noted earlier in the opinion, the default rule of the public

records law is disclosure. ORS 192.314 provides that rule

and three limited exemptions: “Every person has a right

to inspect any public record of a public body in this state,

except as otherwise expressly provided by ORS 192.338,

192.345 and 192.355.” (Emphasis added.) As the dissent

accurately states at the outset of its opinion, the notwith-

standing clause in ORS 192.390 is limited to the conditional

and unconditional exemptions expressly listed in those stat-

utes. But absent those exemptions, public bodies generally

must disclose public records. In other words, without the

ability to rely on those limited exemptions, the default rule

for public bodies is disclosure.

The dissent and the city maintain that ORS

192.390’s notwithstanding clause applies only to the

exemptions from public record disclosure that are expressly

stated in ORS 192.345 and ORS 192.355 and do not apply

to a stand-alone privilege statute that is incorporated into

the public records law through the “catch-all” exemption in

ORS 192.355(9)(a). As we noted above, we do not address

all privilege and confidentiality statutes that might provide

an independent basis for confidentiality and exist outside

Cite as 304 Or App 580 (2020) 591

the public records statute. We only resolve the applica-

tion of the public records law to attorney-client privileged

documents. But for the dissent’s position to hold, it has to

entirely rewrite the “notwithstanding clause” by inserting

substantial additional text. Under the dissent’s position,

the sunset provision in ORS 192.390 would apply “notwith-

standing the expressly stated exemptions in ORS 192.338,

192.345, and 192.355 but excepting those exemptions incor-

porated by ORS 192.355(9)(a).” That would entirely redraft

the text of ORS 192.390, which we cannot do. The dis-

sent’s opinion effectively carves out the application of ORS

192.355(9)(a) and renders the 25-year sunset of that provi-

sion meaningless.

The dissent also fails to contend with the fact that,

even within the notwithstanding clause, the legislature

made a conscious choice to continue to except certain doc-

uments from the 25-year sunset provision, namely those

set forth in ORS 192.398. See ORS 192.390 (stating that,

“[n]otwithstanding ORS 192.338, 192.345 and 192.355 and

except as otherwise provided in ORS 192.398, public records

that are more than 25-years old shall be available for

inspection” (emphasis added)). As noted, that statute pro-

vides exceptions from the 25-year sunset provision for cer-

tain medical records, sealed court records, certain records

of a person’s custody, and student records. ORS 192.398

(1) - (4). The legislature chose to except only a limited number

of documents from the 25-year sunset on exemptions from

public disclosure; the exceptions did not include attorney-

client privileged public records.

We acknowledge that the issue is close because

of the confusing intersection among the various statutes,

including the relationship between a statutory privilege that

applies broadly to protect attorney-client communications—

whether involving public entities and their counsel or private

entities or persons and their counsel—and a public records

law that promotes disclosure and a sunset on exemptions to

public disclosure. The legislature may ultimately choose to

reconsider which documents are excepted from the 25-year

sunset provision in ORS 192.390 and extend that exception

to attorney-client privileged documents for longer or even

592 City of Portland v. Bartlett

indefinite periods of time.5 But we cannot do so without sub-

stantially redrafting the public records law, which is not

within our authority.6

We turn to the city’s final argument. The city and

amicus curiae League of Oregon Cities contend that, if we

conclude—as we do—that ORS 192.390 requires the dis-

closure of public records older than 25 years notwithstand-

ing attorney-client privilege, then the statute violates the

“home-rule” provisions of the Oregon Constitution. Before

addressing the parties’ specific arguments on that issue, it is

helpful to first provide a legal framework for the home-rule

doctrine. “ ‘Home rule’ itself is not a constitutional term, and

the actual constitutional terms differ from state to state.

But ‘home rule’ has been described as the ‘political symbol’

for the objectives of local authority.” LaGrande/Astoria v.

PERB, 281 Or 137, 140 n 2, 576 P2d 1204, aff’d on reh’g, 284

Or 173, 586 P2d 765 (1978).

The Oregon Constitution contains two provisions

that, together, provide home rule for Oregon cities and

towns. Id. at 140. Article XI, section 2, provides that the

legislature

“shall not enact, amend or repeal any charter or act of

incorporation for any municipality, city or town. The legal

voters of every city and town are hereby granted power to

enact and amend their municipal charter, subject to the

Constitution and criminal laws of the State of Oregon.”

Article IV, section 1(5), further provides that

5

Alternatively, the legislature could amend OEC 503 to provide that the

privilege prevents disclosure of privileged public records notwithstanding the

public records law. See, e.g., ORS 279C.815(4) (providing that, “[n]otwithstanding

ORS 192.311 to 192.478,” certain wage reports provided to the Bureau of Labor

and Industries are not available for public inspection).

6

The dissent notes that the effect of the opinion is to create a disparity

between the protection afforded attorney-client communications between private

parties and their attorneys, in one instance, and those between public bodies and

their attorneys, in the other instance. For the latter category, barring a change

by the legislature, the attorney-client privilege will not prevent the disclosure of

privileged public records after 25 years. But that disparity is not unusual in the

general context of public records law. There are many documents that private

persons and companies do not voluntarily share with others that we ultimately

expect our government to disclose upon request.

Cite as 304 Or App 580 (2020) 593

“[t]he initiative and referendum powers reserved to the

people by subsections (2) and (3) of this section are further

reserved to the qualified voters of each municipality and

district as to all local, special and municipal legislation of

every character in or for their municipality or district. The

manner of exercising those powers shall be provided by

general laws, but cities may provide the manner of exercis-

ing those powers as to their municipal legislation.”

Taken together, these constitutional home-rule provisions

“address the manner in which governmental power is

granted and exercised, not the concrete uses to which it is

put.” LaGrande/Astoria, 281 Or at 143. “[A] local law is valid

and not preempted if it is authorized by the local charter or

by a statute, and if it does not contravene state or federal

law.” Qwest Corp. v. City of Portland, 275 Or App 874, 882,

365 P3d 1157 (2015), rev den, 360 Or 465 (2016) (internal

quotation marks and brackets omitted).

State law, however, may preempt local law enacted

under a city’s home-rule authority in two ways:

“First, the state might pass a law or laws expressly pre-

cluding all municipal regulation in an area, such that the

state ‘occupies the field’ in that area. [Rogue Valley Sewer

Services v. City of Phoenix, 357 Or 437, 454, 353 P3d 581

(2015).] Second, state law will preempt a municipal law if

the laws conflict, such that they ‘cannot operate concur-

rently.’ LaGrande/Astoria, 281 Or at 148; accord Advocates

for Effective Regulation v. City of Eugene, 160 Or App

292, 299, 981 P2d 368 (1999). When conducting that con-

flict analysis, we must construe the local law ‘if possible,

to be intended to function consistently with state laws.’

LaGrande/Astoria, 281 Or at 148.”

Qwest Corp., 275 Or App at 883 (brackets in Qwest Corp.

omitted). In regard to express preemption, “a statute will

displace a local ordinance only where the text, context, and

legislative history of the statute unambiguously expresses

an intention to preclude local governments from regulating

in the same area as that governed by the statute.” Northwest

Natural Gas Co. v. City of Gresham, 359 Or 309, 336, 374

P3d 829 (2016) (emphasis and internal quotation marks

omitted)). However, in regard to conflict preemption, “when

a local enactment is found incompatible with a state law in

594 City of Portland v. Bartlett

an area of substantive policy, the state law will displace the

local rule.” LaGrande/Astoria, 281 Or at 149.

“When a statute is addressed to a concern of the state

with the structure and procedures of local agencies, the

statute impinges on the powers reserved by the amend-

ments to the citizens of local communities. Such a state

concern must be justified by a need to safeguard the inter-

ests of persons or entities affected by the procedures of

local government.

“Conversely, a general law addressed primarily to sub-

stantive social, economic, or other regulatory objectives of

the state prevails over contrary policies preferred by some

local governments if it is clearly intended to do so, unless

the law is shown to be irreconcilable with the local commu-

nity’s freedom to choose its own political form. In that case,

such a state law must yield in those particulars necessary

to preserve that freedom of local organization.”

Id. at 156 (footnote omitted). With that understanding, we

turn to the dispute at hand.

The city argues that the Portland City Code cre-

ates an independent basis for attorney-client privilege

for the documents at issue here. See PCC 3.10.060(B)

(“Correspondence between the City Attorney and others in

the City and the opinions and advice provided by the City

Attorney to the City or to any City department, official, or

employee are privileged attorney-client communications.”).

Therefore, the city argues, to the extent that ORS 192.390

conflicts with the city’s own attorney-client privilege rule,

that statute is unconstitutional under the home-rule provi-

sions of the Oregon Constitution because the city’s ability to

obtain privileged legal advice is fundamental to its gover-

nance and structure.7 Defendant argues that ORS 192.390

does not violate the home-rule provisions of the Oregon

Constitution because it is not a statute that affects “the

7

The city also advances an argument that PCC 3.10.060(B) and ORS 192.390

are not in conflict because, similar to its argument regarding OEC 503, we can

and should interpret ORS 192.390 as excluding attorney-client privileged docu-

ments from those required to be disclosed after 25 years. For the same reasons

that we rejected that argument as it related to OEC 503, we reject it as it relates

to PCC 3.10.060(B).

Cite as 304 Or App 580 (2020) 595

structure and organization involved in the exercise of local

self-government.”

Applying LaGrande/Astoria, we consider first whether

the public records law, and specifically the requirement in

ORS 192.390 that requires disclosure of attorney-client priv-

ileged public records more than 25 years old, is “addressed

to a concern of the state with the structure and proce-

dures of local agencies.” 281 Or at 156. If so, it “impinges

on the powers reserved by the amendments to the citizens

of local communities.” Id. On the other hand, the statute

is not an impingement on those powers if it is a “general

law addressed primarily to substantive social, economic,

or other regulatory objectives of the state.” Id. We readily

conclude that ORS 192.390 is not directed at the structures

and procedures of local government, but is a general law

addressed primarily to social objectives. The legislature has

concluded that government documents, even those that are

subject to the attorney-client privilege, should be disclosed

to the public after 25 years. As discussed above, the legisla-

ture is exercising its authority to favor the societal value of

public disclosure of government documents after 25 years,

even when those documents might otherwise be confidential

due to a recognized privilege.

We turn next to whether the state law expressly or

impliedly preempts municipal law. We have noted two forms

of preemption, express and implied. The parties do not con-

tend that there is an issue of express preemption here, and

we see none. Therefore, the issue is whether ORS 192.390

preempts PCC 3.10.060(B) because the laws conflict such

that they “cannot operate concurrently.” Id. at 148. We con-

strue the municipal law, “if possible, to be intended to func-

tion consistently with state laws.” Id.

As noted above, the city claims that the records

requested here “are also privileged under the Portland City

Code,” suggesting that the Portland City Code, itself, cre-

ates an attorney-client privilege. PCC 3.10.060 states:

“A. The relationship between the Office of City

Attorney and the City shall be an attorney-client relation-

ship, with the City being entitled to all benefits thereof.

596 City of Portland v. Bartlett

“B. Correspondence between the City Attorney and

others in the City and the opinions and advice provided

by the City Attorney to the City or to any City depart-

ment, official, or employee are privileged attorney-client

communications.

“C. In suits, actions, or other proceedings in which

the City Attorney, with the concurrence of the OMF Risk

Management Division, accepts the defense of a City official,

employee, or other person pursuant to the requirements of

the Oregon Tort Claims Act, the relationship between the

Office of the City Attorney, and the official, employee, or

other person shall be an attorney-client relationship, with

the official, employee, or other person being entitled to all

the benefits thereof regarding the subject matter of the

suit, action, or proceeding.”

Even assuming for the purpose of this opinion that the city

could create an independent attorney-client privilege by

municipal code that functions independently of OEC 503,

we do not construe PCC 3.10.060 as creating a new attorney-

client privilege, particularly in light of our duty to construe

state and municipal law consistently with each other where

possible. At most, PCC 3.10.060 sets out to identify the rela-

tionships between the city attorney and the city’s various

staff and agencies to which the attorney-client privilege

already existing under Oregon law applies. Attorney-client

privilege is a creature of existing state law codified as OEC

503. Frease v. Glazer, 330 Or 364, 370, 4 P3d 56 (2000).

Further, as discussed above, we see no conflict in the state

legislature deciding that public records should be disclosed

after 25 years even if the documents are otherwise subject

to the attorney-client privilege under state law.8 In other

words, ORS 192.390 does not preempt PCC 3.10.060(B).

In sum, we conclude that ORS 192.390 does not

violate the city’s home-rule authority under the Oregon

Constitution. We also conclude that ORS 192.390 and PCC

8

The League of Oregon Cities contends that the legislature cannot waive

municipalities’ attorney-client privilege, but, as noted above, OEC 503(7) specif-

ically provides that “a privilege is maintained under this section for a communi-

cation ordered to be disclosed under [the Oregon Public Records Law].” Thus, the

disclosure under the public records law may cause the document to be public, but

that does not mean that the privilege is waived such that the document at issue

can be offered in court.

Cite as 304 Or App 580 (2020) 597

3.10.060 may be construed together such that the statute

does not preempt the municipal law.

For the reasons explained above, we conclude that

ORS 192.390 requires the disclosure of the requested records,

namely the requested attorney-client privileged public

records that are older than 25 years. The trial court erred

in granting summary judgment to the city and also erred in

denying summary judgment to defendant. Accordingly, we

reverse and remand for the trial court to enter a declaratory

judgment in favor of defendant consistent with this opinion.

Reversed and remanded.

POWERS, J., dissenting.

In my view, principles of statutory interpretation

do not allow a “notwithstanding” clause that specifically

references three statutes to be stretched beyond those spe-

cific statutes absent a clear indication of legislative intent.

More specifically, because the “notwithstanding” clause

in ORS 192.390 is limited to the conditional and uncondi-

tional exemptions expressly listed in ORS 192.345 and ORS

192.355—not the lawyer-client privilege codified at OEC

503, or any other privilege or confidential public record not

specifically identified in ORS chapter 192—the majority

opinion improperly expands the application of the 25-year

sunset. That is, the notwithstanding clause of ORS 192.390

cannot be read to apply to an exemption not expressly iden-

tified by the legislature in ORS 192.345 or ORS 192.355

through the catch-all exemption in ORS 192.355(9)(a)

because, as I explain, doing so renders the notwithstand-

ing clause itself superfluous. And, the analytical leapfrog

articulated by the majority opinion not only sunsets the

lawyer-client privilege for public bodies after 25 years, but

by logical extension sunsets all other public-record exemp-

tions found in Oregon law that are codified outside of ORS

chapter 192. For those reasons, I respectfully dissent.

As the majority opinion explains, this case requires

us to discern the intent of the legislature embodied in ORS

192.390, which provides:

“Notwithstanding ORS 192.338, 192.345 and 192.355

and except as otherwise provided in ORS 192.398, public

598 City of Portland v. Bartlett

records that are more than 25 years old shall be available

for inspection.”

More specifically, the question in this case is whether the

legislature intended the general 25-year sunset provided

by ORS 192.390 to restrict public bodies from asserting the

lawyer-client privilege (commonly known as the attorney-

client privilege) codified in OEC 503 or ORS 40.225. Using

the well-established statutory interpretation framework

described in State v. Gaines, 346 Or 160, 171-72, 206 P3d

1042 (2009), I would conclude that ORS 192.390 does not

place a 25-year time limit on records that are exempt from

disclosure under the lawyer-client privilege in OEC 503.

The text of ORS 192.390 begins with a notwith-

standing clause that specifically references three statutes:

ORS 192.338, ORS 192.345, and ORS 192.355. ORS 192.345

and ORS 192.355 involve conditional and unconditional

public-records exemptions outlined in the Public Records

Law. ORS 192.345 lists the conditional exemptions, which

apply “unless the public interest requires disclosure in the

particular instance.” Those conditional exemptions include,

for example, criminal investigatory information like an

arrest record or crime report, ORS 192.345(3), and univer-

sity faculty writings that have yet to be publicly released

or protected by copyright or patent, ORS 192.345(14). ORS

192.355 lists the unconditional exemptions, which apply

without regard to whether the public interest requires dis-

closure. Those unconditional exemptions include, for exam-

ple, images of a dead body that are part of a law enforcement

investigation, ORS 192.355(2)(b), records of the Energy

Facility Siting Council concerning the review of security pro-

grams, ORS 192.355(11), and State Treasurer records relat-

ing to both publicly traded investments and privately placed

investment funds, ORS 192.355(13), (14). The third statute,

ORS 192.338, addresses situations where a public record

contains both exempt and nonexempt material and requires

a public body to separate the nonexempt material from the

exempt material so that the nonexempt material can be

made available for inspection. ORS 192.338; see American

Civil Liberties Union v. City of Eugene, 360 Or 269, 300, 380

P3d 281 (2016) (recognizing that under former ORS 192.505

Cite as 304 Or App 580 (2020) 599

(2015), renumbered as ORS 192.338 (2017), “disclosure of

requested records is not an all-or-nothing proposition”).

Applying ordinary precepts of statutory interpre-

tation, the notwithstanding clause of ORS 192.390 signals

that the operational aspect of the statute (i.e., a 25-year

limitation or sunset) works as an exception to the three

statutes addressed by the clause. See, e.g., Severy v. Board

of Parole, 318 Or 172, 178, 864 P2d 368 (1993) (explaining

that the “function of the ‘notwithstanding’ clause * * * [is] to

make the statute an exception to the provisions of law ref-

erenced in the clause”). Said differently, ORS 192.390 gen-

erally operates as a 25-year sunset for those three specified

exemptions.1 Practically speaking, ORS 192.390 generally

prevents a public body from asserting specified exemptions

to withhold records that are 26 years old when it could have

relied on those same exemptions if the record was 24 years

old.

The majority opinion, however, interprets the not-

withstanding clause more broadly than just the three stat-

utes that it references. Using the catch-all provision, ORS

192.355(9)(a), the majority opinion applies the 25-year sun-

set provision in ORS 192.390 to records exempt from dis-

closure by the lawyer-client privilege, codified in OEC 503.

The catch-all exemption in ORS 192.355(9)(a) exempts from

disclosure:

“Public records or information the disclosure of which is

prohibited or restricted or otherwise made confidential or

privileged under Oregon law.”

See American Civil Liberties Union, 360 Or at 283 n 6 (using

the term “catch-all” to describe former ORS 192.502(9)(a)

(2015), renumbered as ORS 192.355(9)(a) (2017)). The pro-

vision effectively captures all public records exemptions in

state law that are not expressly identified as a conditional or

nonconditional exemption in ORS 192.345 or ORS 192.355.

That is, not all public records exemptions are found in ORS

192.345 or ORS 192.355. Indeed, the legislature has codified

1

Although it is not relevant in this case, ORS 192.390 also incorporates an

exception to the general 25-year sunset records described in ORS 192.398. See

ORS 192.390 (providing “except as otherwise provided in ORS 192.398”).

600 City of Portland v. Bartlett

hundreds of exemptions outside of the conditional and non-

conditional exemptions throughout Oregon law. A reader

starting in volume one of the Oregon Revised Statutes would

first come across ORS 1.002(3) (exempting personal identify-

ing information required to be submitted to state courts if

made confidential by Chief Justice rule) and end in volume

19 with ORS 837.310(1) (exempting from disclosure infor-

mation law enforcement obtains from operating a drone).

Thus, the listed conditional and unconditional exemptions

expressly identified in ORS 192.345 and ORS 192.355, and

the catch-all provision of ORS 192.355(9)(a) cover a broad

swath of exemptions, but not all exemptions found in Oregon

law.

However, ORS 192.390 includes a notwithstanding

clause that references only three statutes. If the function

of the notwithstanding clause is to except more than the

identified statutes, why did the legislature include a lim-

ited notwithstanding clause? It simply could have enacted

ORS 192.390 to require that “public records that are more

than 25 years old shall be available for inspection” without

a notwithstanding clause. It did not. In effect, the major-

ity opinion’s interpretation of the 25-year sunset provision

renders the notwithstanding clause superfluous, and, in my

view, therefore impermissibly rewrites the notwithstanding

clause to be broader than the text commands. See State v.

Cloutier, 351 Or 68, 98, 261 P3d 1234 (2011) (stating that

“an interpretation that renders a statutory provision mean-

ingless should give us pause, both as a matter of respect

for a coordinate branch of government that took the trou-

ble to enact the provision into law and as a matter of com-

plying with the interpretative principle that, if possible,

we give a statute with multiple parts a construction that

‘will give effect to all’ of those parts” (quoting Vsetecka v.

Safeway Stores, Inc., 337 Or 502, 510, 98 P3d 1116 (2004));

ORS 174.010 (providing that courts are “to ascertain and

declare what is, in terms or in substance, contained therein,

not to insert what has been omitted, or to omit what has

been inserted”).

I could join the majority’s interpretation if the leg-

islature drafted the notwithstanding clause more broadly

Cite as 304 Or App 580 (2020) 601

to incorporate more than just the three statutes explicitly

referenced in the text. For instance, the legislature could

have used an expansive phrase such as “notwithstanding

any other provision of Oregon law,” which is used in ORS

25.245(1). Alternatively, the legislature could have recycled

the oft-used phrase “notwithstanding any other provision of

law” (or its close, but lesser used, cousin “notwithstanding

any other provisions of law”), which can be found in, among

other places, ORS 197.772(1), ORS 475B.968(7), and OEC

412(2), to signal a more expansive intent than it did when it

drafted ORS 192.390. For whatever reason, the legislature

did not choose broad language and, thus, the notwithstand-

ing clause in ORS 192.390 should be read more narrowly

than the majority opinion concludes. Accordingly, because

the legislature did not use a broadly worded notwithstand-

ing clause, I would conclude that it did not intend to extin-

guish the lawyer-client privilege for public bodies after 25

years. That is, without any explicit textual reference in ORS

192.390 that the 25-year sunset should apply to OEC 503 or

any other public-records exemptions found outside of ORS

192.338, ORS 192.355, or ORS 192.345, we should read-

ily conclude that the legislature intended to enact a more

circumscribed 25-year sunset provision. See Sundermeir v.

PERS, 269 Or App 586, 595-96, 344 P3d 1142, rev den, 357

Or 415 (2015) (“[W]hen a statute clearly and unambiguously

says one thing, we cannot simply conclude that the legisla-

ture meant something entirely different.”).

To reach its conclusion, the majority opinion co-opts

the catch-all exception in ORS 192.355(9)(a) to apply the

25-year sunset to the lawyer-client privilege in OEC 503.

Respectfully, in addition to rendering the notwithstand-

ing clause superfluous, the problem with that analytical

approach is two-fold. First, the majority opinion’s approach

unnecessarily creates a conflict between a public body’s

lawyer-client privilege, codified as OEC 503, and ORS

192.390. Neither the text nor the context lend support to the

conclusion that there is unavoidable conflict in the statutes.

Second, the interpretation offered by the majority opinion

effectively places a 25-year sunset on all public-records

exceptions thereby effectively rewriting ORS 192.390 to

apply more broadly than the text provides.

602 City of Portland v. Bartlett

First, there is no textual or contextual reason to

interpret the sunset provision in ORS 192.390 to create

a conflict with OEC 503. As the Supreme Court has rec-

ognized, “[t]he correct analytical route * * * is to avoid the

statutory interpretation that would produce irreconcilable

conflict and, instead, to construe the statute according to

the probable intention of the legislature, had it considered

the issue.” Carlson v. Myers, 327 Or 213, 226, 959 P2d 31

(1998). The interpretation adopted by the majority opinion

unnecessarily creates a conflict between the 25-year sun-

set provision and the specific exception to disclosure covered

by the lawyer-client privilege. Instead of avoiding that con-

flict, the majority opinion overlays the 25-year time limit of

ORS 192.390 onto OEC 503 to place a 25-year time limit on

lawyer-client privileged records for public bodies. Not only

does this create an avoidable interpretive conflict, it also

creates a disparity between lawyer-client communications

involving public bodies and private parties.

When statutes appear to conflict, we must first

“determine whether there is any way to reconcile the appar-

ent conflict without exceeding the bounds of the reason-

able construction of the wording of the statutes.” Preble v.

Centennial School Dist. No. 287, 298 Or App 357, 364, 447

P3d 42 (2019). Second, if the potential conflict cannot be

avoided, then we “must apply established rules of construc-

tion that give precedence to one of the conflicting statutes

over the other.” Id.

In this case, we can avoid a conflict between the

general 25-year sunset in ORS 192.390 and OEC 503 by

not using the catch-all exemption in subsection (9)(a).2 That

is, we can give full effect to the 25-year sunset in ORS

192.390 by applying it to the specific exemptions contained

in ORS 192.355, not to exemptions only cross-referenced by

the catch-all exemption. Using that approach, we would be

2

It is worth noting that, even if it were necessary to conclude that the stat-

utes could not be reconciled, the general sunset provision in ORS 192.390 should

give way to the more specific lawyer-client privilege codified in OEC 503. See

State ex rel Juv. Dept. v. M. T., 321 Or 419, 426, 899 P2d 1192 (1995) (“When a

general statute and a specific statute both purport to control an area of law, this

court considers the specific statute to take precedence over an inconsistent gen-

eral statute related to the same subject.”).

Cite as 304 Or App 580 (2020) 603

faithful to the explicit text of ORS 192.390 and the exemp-

tions expressly identified in ORS 192.345 and ORS 192.355

would be subject to the 25-year sunset. In short, because we

need not use the catch-all exemption in ORS 192.355(9)(a) to

expand the application of the 25-year sunset to exemptions

that are codified outside of ORS 192.355, the reasoning of

the majority opinion unnecessarily creates a statutory con-

flict that could be avoided.

Further, to the extent that the majority opinion

relies on the statutory context of OEC 503—specifically

OEC 503(7)—to support its interpretation of ORS 192.390,

that reliance is misplaced for at least two reasons. First,

OEC 503(7)—which provides that a public body may be

required under the Public Records Law to disclose privileged

material—was enacted long after the legislature enacted

the 25-year sunset in ORS 192.390 and thus cannot be con-

text in determining what the legislature intended when it

enacted the 25-year sunset. See Holcomb v. Sunderland, 321

Or 99, 105, 894 P2d 457 (1995) (explaining that the proper

inquiry in interpreting a law focuses on what the legislature

intended at the time of enactment). Second, because OEC

503(7) was enacted in response to Klamath County School

Dist. v. Teamey, 207 Or App 250, 140 P3d 1152, rev den, 342

Or 46 (2006), to curb the use of the lawyer-client privilege

to prevent the disclosure of internal investigative reports,

its enactment cannot provide meaningful insight into the

legislature’s intent about whether a general 25-year sunset

should be extended to the lawyer-client privilege for public

bodies.3 For either of those reasons, OEC 503(7) is not help-

ful context to interpreting what the legislature intended

when it enacted the 25-year sunset in ORS 192.390.

Second, the logic of the majority opinion applies the

25-year sunset to all public records exemption in Oregon

3

In 2007, the legislature enacted SB 671 to add OEC 503(7), which was

drafted in response to the Teamey decision. See Audio Recording, House

Committee on Judiciary, SB 671, May 14, 2007, at 7:19:00 (statement of Sen

Burdick), https://olis.leg.state.or.us (accessed Feb 26, 2020). In so doing, the leg-

islature sought to require a public body to release a condensed version of fac-

tual information, not any legal opinions or legal advice, that would otherwise be

exempt under the lawyer-client privilege without waiving its privilege. See Staff

Measure Summary, Senate Committee on Judiciary, SB 671, Apr 3, 2007.

604 City of Portland v. Bartlett

law, which effectively rewrites ORS 192.390 to apply more

broadly than the explicitly narrow notwithstanding clause

allows. ORS 192.355(9)(a) is broadly written to exempt

from disclosure under the Public Records Law all public

records and information where the disclosure “is prohibited

or restricted or otherwise made confidential or privileged

under Oregon law.” As explained earlier, to use the catch-

all exemption as an interpretive vehicle to apply the sunset

to OEC 503, the majority opinion effectively sunsets every

exemption in Oregon law despite the narrowly tailored lan-

guage of ORS 192.390. Or, to put it in the language of the

catch-all exemption, the 25-year sunset applies where dis-

closure would be “prohibited or restricted or otherwise made

confidential or privileged under Oregon law.” That logic,

respectfully, leads to an absurd result that can and should

be avoided. See McKean-Coffman v. Employment Div., 312

Or 543, 549, 824 P2d 410, adh’d to on recons, 314 Or 645,

842 P2d 380 (1992) (explaining that “courts must refuse to

give literal application to language when to do so would pro-

duce an absurd or unreasonable result” and instead “courts

must construe the statute if possible so that it is reasonable

and workable and consistent with the legislature’s general

policy”); State v. Stout, 281 Or App 263, 273, 382 P3d 591

(2016), aff’d, 362 Or 758, 415 P3d 567 (2018) (“We are not

to read a statute out of context so as to produce an unwork-

able or absurd result, or counteract the legislature’s clear

intention.”).4

The legislature, to be sure, could have intended

such a limitation on the attorney-client privilege for pub-

lic bodies that the majority opinion suggests, but we should

expect a clearer statement of legislative intent in the text

of ORS 192.390 before so concluding.5 Cf. Crane v. School

4

To the extent that the majority opinion looks to ORS 192.314 for sup-

port, that statute does little to corroborate the expansive interpretation of ORS

192.390. To be sure, ORS 192.314 embodies the legislative policy that disclosure

of public records is the presumption and that exemptions from disclosure are nar-

rowly construed. It provides little guidance, however, on whether the legislature

intended the 25-year sunset to apply to every exemption embodied in Oregon law

through the application of the catch-all exemption in ORS 192.355(9)(a).

5

The legislature’s authority in this area would necessarily be circumscribed

by any constitutional limitations in this area but I have assumed—as the par-

ties’ arguments have—that the legislature could limit the attorney-client priv-

ilege for the records at issue in this case. Further, because I conclude that ORS

Cite as 304 Or App 580 (2020) 605

District No. 14, 95 Or 644, 654, 188 P 712 (1920) (“If it had

been the intent of the legislature to confer such a vast power

* * *, it should have used language far more specific and

certain[.]”). This is especially true when considering the

importance of the lawyer-client privilege, which encourages

“full and frank communication between lawyers and their

clients,” whether those clients are public bodies or private

parties. State ex rel OHSU v. Haas, 325 Or 492, 500, 942

P2d 261 (1997) (citation omitted); see also State v. Jancsek,

302 Or 270, 274, 730 P2d 14 (1986) (discussing purpose of

lawyer-client privilege). As the Supreme Court has recog-

nized, the privilege “promote[s] broader public interests in

the observance of law and administration of justice,” Haas,

325 Or at 500 (citation omitted), and therefore we should

require more than a catch-all cross-reference to sunset this

important privilege.6

The full impact of the reasoning by the majority

opinion will have far reaching consequences. By using the

catch-all exemption in ORS 192.355(9)(a) to apply a 25-year

sunset to all public records exemptions found in Oregon law,

a wide range of exemptions will no longer be viable despite

the underlying policy interest embodied in the exceptions

not necessarily being diminished by the passage of time

such as:

• ORS 18.048(2)(b)—crime victim information;

• ORS 40.275(2)—identity of an informant;

• ORS 247.973(5)—information on voter’s disability

in voter registration records;

192.390 does not require the disclosure of public records older than 25 years if

OEC 503 applies, I would not reach the alternative argument based on Article IV,

section 1(5), and Article XI, section 2, of the Oregon Constitution. Accordingly, I

express no opinion on that issue.

6

It is worth noting that, although I conclude that OEC 503 is an available

exemption after 25 years, the ultimate decision on whether the requested record

would be disclosed remains with the public-body client that may decide to waive

any available exemption or privilege. See Guard Publishing Co. v. Lane County

School Dist., 310 Or 32, 37-38 & n 6, 791 P2d 854 (1990) (“If the public body

is satisfied that a claimed exemption from disclosure is justified, it may, but is

not required to, withhold disclosure of the information.” (emphasis and foot-

note omitted)); Freaze v. Glazer, 330 Or 364, 370, 4 P3d 56 (2000) (explaining

that the attorney-client privilege is not absolute and that a client may waive it

voluntarily).

606 City of Portland v. Bartlett

• ORS 314.835(1)—information in state tax returns;

• ORS 342.850(8)—teacher personnel files where a

district school board has adopted rules governing

access;

• ORS 409.273(2)—location of sexual assault crises

centers that have received grants from, or entered

into a contract with, the Department of Human

Services;

• ORS 409.292(3)—location of facilities for family

and domestic violence programs that have received

grants from, or entered into a contract with any

public agency; and

• ORS 433.045(4)(a)—identity of individuals receiv-

ing HIV-related tests by any licensed health care

provider.

In short, the legislature undoubtedly intended to place a

time limit on the use of specified public records exemptions

when it enacted ORS 192.390 using a narrow notwithstand-

ing clause. Because we should take the legislature at its word

and not expand the reach of that tailored notwithstanding

clause by effectively turning it from a targeted 25-year sun-

set provision into a comprehensive sunshine provision that

forecloses the use of each and every public records exception

under Oregon law after 25 years, I respectfully dissent.

DeVore, J., and James, J., join in this dissent.