City of Portland v. Bartlett

606

Argued and submitted November 3, 2021; decision of Court of Appeals affirmed,

judgment of circuit court reversed, and case remanded to circuit court for

further proceedings April 28, 2022

CITY OF PORTLAND,

an Oregon municipal corporation,

Petitioner on Review,

v.

Mark BARTLETT,

Respondent on Review.

(CC 16CV01529) (CA A164469) (SC S067940)

509 P3d 99

Defendant sought disclosure under the public records law, ORS 192.390, of

four public records that were prepared by the Portland City Attorney for city

officials more than 25 years ago. The city sought a judgment declaring that those

records were privileged attorney-client communications and therefore exempt

from disclosure. The trial court held that the records were exempt from disclo-

sure, but the Court of Appeals reversed. Held: (1) The attorney-client privilege

does not exempt public records more than 25 years old from disclosure under the

public records law; and (2) that interpretation of the public records law does not

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

The decision of the Court of Appeals is affirmed. The judgment of the cir-

cuit court is reversed, and the case is remanded to the circuit court for further

proceedings.

On review from the Court of Appeals.*

Denis M. Vannier, Office of the City Attorney, Portland,

argued the cause and filed the briefs for petitioner on review.

Chris Swift, Davis Wright Tremaine LLP, Portland,

argued the cause for respondent on review. Duane A.

Bosworth filed the brief for respondent on review.

Carolyn H. Connelly, Local Government Law Group PC,

Eugene, filed the brief for amicus curiae League of Oregon

Cities.

______________

* Appeal from Multnomah County Circuit Court, Eric J. Neiman, Judge pro

tempore. 304 Or App 580, 468 P3d 980 (2020).

Cite as 369 Or 606 (2022) 607

Before Walters, Chief Justice, and Balmer, Flynn,

Duncan, Nelson, and Garrett, Justices.**

BALMER, J.

The decision of the Court of Appeals is affirmed. The

judgment of the circuit court is reversed, and the case is

remanded to the circuit court for further proceedings.

______________

** Nakamoto, J., retired December 31, 2021, and did not participate in the

decision of this case. DeHoog, J., did not participate in the consideration or deci-

sion of this case.

608 City of Portland v. Bartlett

BALMER, J.

This case requires us to consider the relationship

between two statutes that both protect important interests:

the public records law, which provides that “[e]very person

has a right to inspect any public record of a public body in

this state, except as otherwise expressly provided by [specific

statutes],” ORS 192.314,1 and the attorney-client privilege,

which gives a lawyer’s client “a privilege to refuse to disclose

and to prevent any other person from disclosing confiden-

tial communications” with the client’s lawyer, OEC 503(2).

In 1979, the legislature amended the public records law to

provide that, with certain exceptions, “public records that

are more than 25 years old shall be available for inspection.”

ORS 192.390 (former ORS 192.495 (2015)); Or Laws 1979,

ch 301, § 2. The specific question presented in this case

is whether four documents that were prepared more than

25 years ago by the Portland City Attorney for the mayor and

two city commissioners and that are subject to the attorney-

client privilege must be disclosed under ORS 192.390. For

the reasons set out below, we conclude that those documents

must be disclosed. We therefore affirm the decision of the

Court of Appeals and reverse the judgment of the circuit

court.

I. BACKGROUND

Defendant requested the City of Portland to release

three city attorney opinions and one legal memorandum.

The parties agree that the documents are public records,

are within the scope of the attorney-client privilege, and are

more than 25 years old. The city declined to release the docu-

ments, arguing that they are exempt from the public records

law because of the attorney-client privilege. Pursuant to the

statutory procedure for review of the city’s decision, ORS

192.415 (former ORS 192.460 (2015)), defendant petitioned

the district attorney to order release of the documents

on the ground that ORS 192.390 required their release,

1

ORS 192.314 and several of the other statutes referred to in this opinion

have been amended and renumbered since the events in this case took place, see

former ORS 192.420 (2015), renumbered as ORS 192.314 (2017); however, because

those amendments do not affect our analysis, we refer to the current versions

of the statutes cited throughout this opinion. Where applicable, renumbering is

indicated parenthetically.

Cite as 369 Or 606 (2022) 609

notwithstanding the attorney-client privilege. The district

attorney ordered the documents’ release, and the city then

brought this action seeking a declaratory judgment that

the documents are exempt from disclosure. The trial court

agreed with the city and held that the public records law did

not require the disclosure of the documents.

The Court of Appeals reversed in an en banc, split

decision. City of Portland v. Bartlett, 304 Or App 580, 468

P3d 980 (2020). The majority recognized that “the issue is

close because of the confusing intersection among the vari-

ous statutes,” including the competing policies of the broad

privilege protecting attorney-client communications and “a

public records law that promotes disclosure and a sunset on

exemptions to public disclosure.” Id. at 591. But it concluded

that “the text of ORS 192.390 unambiguously states that

records that are older than 25 years shall be disclosed, not-

withstanding the exemptions from disclosure contained in

ORS 192.355.” Id. at 585 (emphases in original). The express

exemptions in ORS 192.390 include ORS 192.355 (former

ORS 192.502 (2015)). That statute, in turn, refers to “[p]ublic

records or information the disclosure of which is prohibited

or restricted or otherwise made confidential or privileged

under Oregon law,” ORS 192.355(9)(a)—a category of records

sometimes referred to as the “catchall” exemption—which,

the majority held, include records subject to the attorney-

client privilege. Bartlett, 304 Or App at 585-86. The majority

also rejected the city’s argument that requiring disclosure

of the documents would interfere with its home-rule powers

under Article IV, section 1(5), and Article XI, section 2, of

the Oregon Constitution. Id. at 592-97.

Judge Powers dissented, joined by Judges DeVore

and James, asserting that the “[n]otwithstanding” clause in

ORS 192.390 applies only to exemptions “expressly listed in

ORS 192.345 and ORS 192.355—not the lawyer-client priv-

ilege codified at OEC 503, or any other privilege or confi-

dential public record not specifically identified in [the pub-

lic records law].” Bartlett, 304 Or App at 597 (Powers, J.,

dissenting). In particular, the dissent would read the “[n]ot-

withstanding” clause not to apply “to an exemption not

expressly identified by the legislature in ORS 192.345 or

ORS 192.355,” id.; that is, it would not read the clause to

610 City of Portland v. Bartlett

encompass an exemption that is operative only through the

catch-all exemption in ORS 192.355(9)(a). Because, in the

dissent’s view, the attorney-client privilege is not “expressly

identified” in those listed statutes, the dissent concluded

that the documents need not be disclosed.

II. THE STATUTORY FRAMEWORK

We turn to the critical statutes, utilizing the approach

set out in State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042

(2009). As we summarized Gaines in Kinzua Resources v.

DEQ, 366 Or 674, 680, 468 P3d 410 (2020), when interpret-

ing statutes, “the paramount goal is to discern the intention

of the legislature,” which we do by “giv[ing] primary weight

to the text and context of the disputed statutory terms,”

because “there is no more persuasive evidence of the intent

of the legislature than the words by which the legislature

undertook to give expression to its wishes.” (Internal quota-

tion marks omitted.) We also consider legislative history for

what it may be worth in a particular case. Id.

We first discuss in general terms the statutes whose

intersection creates the issue before us. Examining more

closely the text and context of those statutes, we then evalu-

ate the parties’ arguments about how those statutes should

be interpreted. We also consider whether any aspects of the

legislative history offered by the parties assist us in our

interpretative effort.

A. The Public Records Law and the Attorney-Client Privi-

lege: Text and Context

The statutory right of Oregonians to inspect public

documents goes back at least to 1862: “Every citizen of this

state has a right to inspect any public writing of this state,

except as otherwise expressly provided by this code or some

other statute.” General Laws of Oregon, Civ Code, ch VIII,

title V, § 707, p 326 (Deady 1845-1864). The public records

law took its current form in 1973, see Or Laws 1973, ch 794,

§ 3, but the statutory policy of disclosure, in the absence of a

specific exception, remains as it was in 1862: “Every person

has a right to inspect any public record of a public body in

this state, except as otherwise provided by ORS 192.338,

192.345 and 192.355.” ORS 192.314(1). We have said of the

Cite as 369 Or 606 (2022) 611

public records law, “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, recons den (1990). And we

have emphasized that the “people’s right to inspect public

records is fundamental.” American Civil Liberties Union v.

City of Eugene, 360 Or 269, 299, 380 P3d 281 (2016) (inter-

nal quotation marks omitted). Those general statements of

the importance of access to public records, however, cannot

resolve this case—which involves another fundamental and

deeply rooted right—and we turn to the operative text of the

public records law.

As set out above, ORS 192.314 establishes the

right of every person to inspect a public record “except as

otherwise expressly provided by ORS 192.338, 192.345 and

192.355.” The third statute listed, ORS 192.355, is the one

at issue here. The first of the three statutory provisions

listed, ORS 192.338 (former ORS 192.505 (2015)), simply

directs public bodies, if records are exempt under the sec-

ond and third statutes, to separate exempt material from

nonexempt material and disclose the nonexempt material.

The two other statutory provisions, ORS 192.345 (former

ORS 192.501 (2015)) and ORS 192.355, contain substantive

exemptions. ORS 192.345 lists records that are exempt from

disclosure “unless the public interest requires disclosure

in the particular instance.” Those records include materi-

als such as “[t]rade secrets,” “[i]nvestigatory information

compiled for criminal law purposes,” and “[t]est questions,

scoring keys, and other data” used in licensing or academic

testing. ORS 192.345(2) - (4). Those are sometimes referred

to as “conditional” exemptions because, when the public

interest requires, otherwise confidential records must be

disclosed. The third statute, ORS 192.335, unconditionally

exempts a wide variety of public records from disclosure,

including, for example, private personal information the

disclosure of which would be an unreasonable invasion of

privacy, personal addresses and phone numbers of public

employees (in certain circumstances), and certain finan-

cial investment records maintained by the state treasurer

and the Oregon Investment Council. ORS 192.355(2)(a),

(3), (13).

612 City of Portland v. Bartlett

ORS 192.355 also includes, as paragraph (9)(a), the

catchall exemption, which exempts from disclosure “[p]ublic

records or information the disclosure of which is prohibited

or restricted or otherwise made confidential or privileged

under Oregon law.” That provision, the parties agree, gen-

erally exempts communications less than 25 years old and

subject to the attorney-client privilege from the otherwise

applicable disclosure requirements of the public records law.

It is undisputed that the documents at issue here

were exempt from disclosure at the time they were prepared.

The controversy arises because of ORS 192.390 (former ORS

192.495 (2015)), the precursor to which was enacted in 1979,

and which requires the disclosure of records that are more

than 25 years old:

“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.”

That text mandates the disclosure of such public

records “[n]otwithstanding” the exemptions set out in ORS

192.355, which, as noted, is the provision that generally

excludes public records subject to the attorney-client priv-

ilege from disclosure. And ORS 192.390 also excludes from

disclosure, even after 25 years, certain categories of records,

such as certain medical records, records “sealed in compli-

ance with statute or by court order,” and “[s]tudent records

required by state or federal law to be exempt from disclo-

sure.” ORS 192.398 (former ORS 192.496 (2015)). Thus, by

the plain terms of ORS 192.390, the 25-year sunset pro-

vision applies to all public records “[n]otwithstanding” the

exemptions found in ORS 192.355 and “except[ing]” only

records included in ORS 192.398. The text and structure

of ORS 192.390 strongly suggest that there is no general

exemption for public records covered by the attorney-client

privilege that are more than 25 years old.2

2

We say no “general” exemption for public records of attorney-client commu-

nications, because some of those records may be subject to the express “except[ion]”

to disclosure in ORS 192.398. Other attorney-client communications, although in

the possession of a public entity, may not be “public record[s],” as defined in ORS

192.005(5), and therefore may not be subject to the public records law. There is no

dispute, however, that the records at issue here are public records.

Cite as 369 Or 606 (2022) 613

The city challenges that reading of the public records

law on textual, contextual, and legislative intent grounds,

and we consider those arguments below. But many of the

city’s contentions are founded on the importance of the

attorney-client privilege, and we begin there.

We agree, of course, that the attorney-client privi-

lege “promote[s] broader public interests in the observance

of law and administration of justice,” State ex rel OHSU v.

Haas, 325 Or 492, 500, 942 P2d 261 (1997), and that it is

a foundational principle of our legal system. But, like the

public records law, the attorney-client privilege is subject to

various exceptions and limitations, and it must be read and

applied consistently with other sources of law. The attorney-

client privilege is rooted in the common law, see State v.

Jancsek, 302 Or 270, 274, 730 P2d 14 (1986), but it has been

the subject of Oregon statutes since 1862, see General Laws

of Oregon, Civ Code, ch VIII, title III, § 702(2), p 325 (Deady

1845-1864). And with the enactment of the Oregon Evidence

Code in 1981, Or Laws 1981, ch 892, the definitions of

“[c]lient,” “[l]awyer,” and “[c]onfidential communication,” as

well as the scope of communications subject to the privilege,

waiver, and related issues of application, were codified in

OEC 503(1)(a) to (c). The core of the privilege is set out in

OEC 503(2):

“A client has a privilege to refuse to disclose and to pre-

vent any other person from disclosing confidential commu-

nications made for the purpose of facilitating the rendition

of professional legal services to the client.”

Although the attorney-client privilege is a key aspect

of the dispute here, the details of the application vel non of

the privilege are not in play in this case. Everyone agrees

that the records are privileged. The question is whether the

public records law requires the disclosure of the records not-

withstanding the fact that they are privileged. As explained

above, the text of ORS 192.390 suggests that it requires dis-

closure of records more than 25 years old notwithstanding

the exemptions in ORS 192.355, including paragraph (9)(a),

which exempts “[p]ublic records or information the disclo-

sure of which is prohibited or restricted or otherwise made

confidential or privileged under Oregon law.” Because the

614 City of Portland v. Bartlett

attorney-client privilege restricts the disclosure of “confiden-

tial communications,” OEC 503(2), privileged public records

come within the exemption to disclosure in ORS 192.355(9)(a).

But that also means that, after 25 years, they are subject to

disclosure “[n]otwithstanding” that exemption, unless other

grounds for an exemption exist.

The city responds to that textual argument by

asserting that the legislature cannot have intended the “[n]ot-

withstanding” clause to sweep so broadly as to require the

disclosure after 25 years of the “confidential or privileged”

records referred to in ORS 192.355(9)(a). That interpreta-

tion, the city claims, would render the “[n]otwithstanding”

clause, which cites three statutes, including ORS 192.355,

“superfluous” or “redundant” because the legislature instead

“could simply have stated, ‘public records older than 25 years

shall be available for inspection.’ ” But that argument fails

for several reasons. First, as we discuss in greater detail

below, the legislature clearly did not intend to make all pub-

lic records available for inspection after 25 years, as ORS

192.390 itself, in addition to the “[n]otwithstanding” clause,

expressly “except[s]” from disclosure a smaller category of

records described in ORS 192.398. Second, although we do

seek to give meaning to all the words in a statute, “nothing

prohibits the legislature from saying the same thing twice or

* * * from providing two different statutory paths” to achieve

the same result. Thomas Creek Lumber and Log Co. v. Dept.

of Rev., 344 Or 131, 138, 178 P3d 217 (2008); see also State

v. Cloutier, 351 Or 68, 97, 261 P3d 1234 (2011) (“We wish

to be clear that the fact that a proposed interpretation of a

statute creates some measure of redundancy is not, by itself,

necessarily fatal. Redundancy in communication is a fact

of life and of law.”). More fundamentally, the city’s textual

argument here suffers from the same shortcomings that the

Court of Appeals’ majority identified in the dissent in that

court:

“[F]or the dissent’s position to hold, it has to entirely

rewrite the ‘notwithstanding clause’ by inserting substan-

tial additional text. Under the dissent’s position, the sun-

set provision in ORS 192.390 would apply ‘notwithstanding

the expressly stated exemptions in ORS 192.338, 192.345,

and 192.355 but excepting those exemptions incorporated

Cite as 369 Or 606 (2022) 615

by ORS 192.355(9)(a).’ That would entirely redraft the text

of ORS 192.390, which we cannot do.”

Bartlett, 304 Or App at 591 (underscoring in original).

The textual analysis of ORS 192.390 is straightfor-

ward and contrary to the city’s claim that the documents

here are exempt from disclosure. The city, however, raises

a number of plausible arguments based on related statutes

and context in support of its position that a different inter-

pretation of the relevant statutes is not simply permissible,

but is required. We turn to those now.

The city first argues that the disclosure of records

more than 25 years old does not apply to records that are

subject to the attorney-client privilege because that privilege

“is not a creation of, and it is not codified in, any of the stat-

utes enumerated in ORS 192.390 or elsewhere in the Public

Records Law.” But nothing in the public records law sug-

gests that the disclosure requirement is so limited. Although

the attorney-client privilege is rooted in the common law

and now codified in the Oregon Evidence Code—rather

than being a “creation” of the public records law—it clearly

comes within the catchall provision of ORS 192.355(9)(a)

for public records “the disclosure of which is prohibited

or restricted or otherwise made confidential or privileged

under Oregon law.” That provision, of course, is a key part of

the public records law because it ensures that such records

are “exempt from disclosure” under the general disclosure

requirement of ORS 192.314, quoted above. ORS 192.355.

But ORS 192.390 then expressly requires disclosure of doc-

uments more than 25 years old “[n]otwithstanding * * * ORS

192.355.” (Emphasis added.) In other words, the statutory

text provides that records subject to the attorney-client

privilege are exempt from disclosure when created because,

under ORS 192.355(9)(a), they are “confidential or privileged

under Oregon law.” After 25 years, however, disclosure is

required “[n]otwithstanding” that exemption.

That conclusion from the statutory text and context

is further supported by the statutes that preceded the 1987

enactment of the catchall exception that now appears in ORS

192.355(9)(a). Or Laws 1987, ch 373, § 23e(8). As this court

has pointed out, before 1987, the public records law exception

616 City of Portland v. Bartlett

for records that were confidential or privileged “attempted to

list every statute outside the public records law that in any

way prohibited or restricted disclosure of public records,” but

the legislature abandoned that effort in favor of the catchall

exemption because of the difficulty of maintaining a com-

prehensive list when statutes were amended, added, and

repealed so frequently. Oregonian Publishing v. Portland

School Dist. No. 1J, 329 Or 393, 399, 987 P2d 480 (1999).

That history indicates that the attorney-client privilege—

which was listed in the predecessor to ORS 192.355(9)(a)

as an exemption from disclosure requirements, see former

ORS 192.500(2)(h) (1985), repealed by Or Laws 1987, ch 764,

§ 1—was intended to be captured by the catchall exemption.

And, in turn, that such documents would be subject to dis-

closure after 25 years, “[n]otwithstanding” that exemption.

The city’s argument that records over 25 years old

that are subject to the attorney-client privilege should be

exempt from disclosure is further undercut by the context

of ORS 192.390. As noted, the city argues that ORS 192.390

does not apply to exemptions other than those created by or

codified in the public records law. Yet the statute itself, while

requiring disclosure “[n]otwithstanding” certain exemption

provisions, like ORS 192.355, carves out a different excep-

tion: “except as otherwise provided in ORS 192.398.” ORS

192.398 sets a 75-year time period after which certain med-

ical records and records “sealed in compliance with statute

or by court order” must be disclosed, as well as different or

no time limits on the disclosure exemption for other records.3

3

ORS 192.398 provides:

“The following public records are exempt from disclosure:

“(1) Records less than 75 years old which contain information about the

physical or mental health or psychiatric care or treatment of a living indi-

vidual, if the public disclosure thereof would constitute an unreasonable

invasion of privacy. The party seeking disclosure shall have the burden of

showing by clear and convincing evidence that the public interest requires

disclosure in the particular instance and that public disclosure would not

constitute an unreasonable invasion of privacy.

“(2) Records less than 75 years old which were sealed in compliance with

statute or by court order. Such records may be disclosed upon order of a court

of competent jurisdiction or as otherwise provided by law.

“(3) Records of a person who is or has been in the custody or under the

lawful supervision of a state agency, a court or a unit of local government,

are exempt from disclosure for a period of 25 years after termination of such

Cite as 369 Or 606 (2022) 617

The exclusion of those records from disclosure

refutes the city’s claim that ORS 192.390 applies only to

exemptions created in or codified by the public records law.

ORS 192.398, for example, refers to records “sealed in com-

pliance with statute” and “[s]tudent records required by

state or federal law to be exempt from disclosure.” Those

exemptions are codified outside the public records law. If the

city’s argument were correct, ORS 192.398 would have been

unnecessary.

The legislature’s enactment of ORS 192.398 also

refutes the premise underlying several of the city’s conten-

tions: that the legislature gave no thought at all to maintain-

ing the confidentiality of sensitive public records. Indeed,

the presence of exceptions for records “sealed in compliance

with statute or by court order,” ORS 192.398(2), records

regarding the physical or mental health of living persons,

ORS 192.398(1), and student records exempt from disclosure

under state or federal law, ORS 192.398(4), shows that the

legislature knew how to—and did—protect such records

from disclosure. But, for whatever reason, the legislature

did not provide a similar exception for public records that

are covered by the attorney-client privilege.

The city also offers a number of arguments based

on the independent significance of OEC 503 and the impor-

tance of the attorney-client privilege. We address the spe-

cific textual and contextual arguments the city makes and

then turn to the city’s broader theme based on those asser-

tions. First, the city points out that OEC 503(2) provides

that “[a] client has a privilege to refuse to disclose and to

prevent any other person from disclosing confidential com-

munications made for the purpose of facilitating the rendi-

tion of professional legal services,” that “[c]lient” includes

public bodies and their officers, OEC 503(1)(a), and that the

rule provides “no limitation on the privilege based on time

custody or supervision to the extent that disclosure thereof would interfere

with the rehabilitation of the person if the public interest in confidentiality

clearly outweighs the public interest in disclosure. Nothing in this subsec-

tion, however, shall be construed as prohibiting disclosure of the fact that a

person is in custody.

“(4) Student records required by state or federal law to be exempt from

disclosure.”

618 City of Portland v. Bartlett

or the Public Records Law.” The city takes the position that

this “unlimited privilege” bars disclosure under the pub-

lic records law. But, as defendant argues, the city tends to

conflate the concepts of a “privilege” applicable to attorney-

client public records and an “exemption” from disclosure

under the public records law, seeming to contend that, if a

record is “privileged” under OEC 503, then it also must be

“exempt” under the public records law. But those statutes

operate independently, promote different goals, and use dif-

ferent terms.

That difference was recognized by the legisla-

ture and is highlighted in OEC 503(7), which provides,

“Notwithstanding [OEC 511]”—under which the voluntary

disclosure of a privileged communication may constitute a

waiver of the attorney-client privilege—“a privilege is main-

tained under this section for a communication ordered to

be disclosed under [the public records law].” That provision

makes clear that, although the disclosure of a communication

may be required because the communication is not exempt

from disclosure under the public records law, the commu-

nication nevertheless “maintain[s]” its “privilege[d]” char-

acter for evidentiary purposes under the Oregon Evidence

Code.

OEC 503(7) also answers the city’s argument that

the attorney-client privilege and the disclosure requirement

of ORS 192.390 are in unreconcilable conflict, which must

be resolved either by favoring the later enacted provision

over the earlier or the more particular provision over the

more general. Putting to one side the difficulty of deter-

mining which of two statutes that have been amended mul-

tiple times over the years is “later,” or which of two stat-

utes that address different subjects is more “particular,”

OEC 503(7) shows that the legislature did not view the

attorney-client privilege and the disclosure requirements

of the public records law as inconsistent. Rather, the legis-

lature gave effect to both statutes. OEC 503(7) recognizes

that the public records law may require disclosing some

communications subject to the attorney-client privilege—

and does not treat all such communications as exempt—

but nevertheless protects the evidentiary privilege for such

communications.

Cite as 369 Or 606 (2022) 619

The city is correct that the attorney-client privilege

in OEC 503 is not solely an evidentiary privilege. In addi-

tion to protecting against the use of privileged communi-

cations as evidence in legal proceedings, OEC 503(2) gives

a client “a privilege to refuse to disclose and to prevent any

other person from disclosing confidential communications

made for the purpose of facilitating the rendition of profes-

sional legal services to the client.” But OEC 503(7) expressly

acknowledges that privileged communications may be sub-

ject to disclosure under the public records law and clarifies

that such disclosure will not constitute a voluntary waiver

of the privilege. The drafters of the Oregon Evidence Code

apparently felt that that protection resolved any conflict

between the two laws. One can argue, as the city does, that

that resolution fails to give sufficient weight to the city’s

interest in preventing disclosure of privileged documents

over 25 years old, but that is the balance that the text of the

statutes appears to endorse.

The city also argues that ORS 192.390 cannot require

the disclosure of attorney-client communications because

“the exceptions codified in OEC 503(4) were ‘intended [by the

legislature] as a complete enumeration of the exceptions to

the attorney-client privilege.’ Crimson Trace Corp. v. Davis

Wright Tremaine LLP, 355 Or 476, 501, 326 P3d 1181 (2014).”

The city reads too much into the quoted sentence. Crimson

Trace Corp. used the word “exception” to the attorney-client

privilege, and although that word is not incorrect in describ-

ing the effect of OEC 503(4), it is imprecise because that

rule actually begins with the proviso, “There is no privilege

under this section.” (Emphasis added.) And the paragraphs

that follow that proviso are not actually exceptions, but

circumstances—none of them relevant to the issue before

us—where there is no attorney-client privilege. But that is

not the case here, where the parties agree that the docu-

ments at issue were privileged at the time they were created

and are privileged now.

The question is not whether the records are

“exempt” from OEC 503, but whether they are exempt from

disclosure under the public records law. In Crimson Trace

Corp., this court simply refused to recognize a “fiduciary

exception” (which, it stated, “does not exist in Oregon”) and

620 City of Portland v. Bartlett

to “compel production of communications that otherwise fell

within the general scope of the privilege.” 355 Or at 501.

Here, of course, the public records law does require disclo-

sure of public records over 25 years old, unless a specific

exemption applies. And, as noted, the text of OEC 503 itself

acknowledges, in subsection (7), that privileged documents

will sometimes be subject to disclosure under the public

records law, and for that reason, provides that the eviden-

tiary privilege will continue to apply to such communica-

tions, notwithstanding their disclosure.

For the reasons discussed above, the text of ORS

192.390 and the context provided by other provisions of the

public records law do not support the city’s proposed inter-

pretation of that statute as not applying to attorney-client

communications over 25 years old. Nor does the privilege

protected by OEC 503 conflict with the disclosure require-

ment of ORS 192.390. OEC 503 recognizes a privilege

against the disclosure of certain communications, but its

express reference to the public records law in OEC 503(7)

and its treatment of communications disclosed under that

law shows that the legislature understood the potential

problems of disclosure and adopted a policy to respond to

those concerns.

B. Legislative Intent and Legislative History

The city marshals a series of other arguments that

the legislature could not have intended the public records

law to require the city’s attorney-client communications,

even communications more than 25 years old, to be dis-

closed. Most of those arguments are unsupported by, or con-

trary to the intent reflected in, the words the legislature

used. The city contends that the legislature would not have

wanted to “create a second-class [attorney-client] privilege

for public bodies, their officers, and employees” by permit-

ting the disclosure of their privileged communications after

25 years, but not the privileged communications of nongov-

ernment entities. But the existence of the public records

law itself seriously undermines that argument. The public

records law—like other statutes that apply only to public

entities, such as the public meetings law, ORS 192.610 to

192.695, and the public contracting code, ORS chapters 279,

Cite as 369 Or 606 (2022) 621

279A, 279B, and 279C—was adopted to ensure transpar-

ency, openness, and fairness in government operations. See

ORS 192.620, ORS 279A.015. To be sure, with each of those

statutes, a balance must be struck that promotes those val-

ues, while ensuring that government agencies can conduct

their business efficiently and without unreasonable cost

or delay—and it is up to the legislature to establish that

balance. But the fact that a different disclosure rule may

apply to government attorney-client communications after

25 years than to such communications by private parties

is not necessarily surprising, given the purpose animating

the public records law. And that different treatment does

not indicate that the legislature intended ORS 192.390 to

operate in some other manner.

The city also claims that if ORS 192.390 requires

disclosure of public records that are privileged under state

law because of the catchall exemption in ORS 192.355(9)(a),

then ORS 192.390 would also necessarily apply to documents

the disclosure of which is prohibited by federal law. See ORS

192.355(8). That result, the city asserts, would violate the

Supremacy Clause of the United States Constitution, US

Const, Art VI, and therefore cannot have been intended by

the legislature. To the contrary, such a result would simply

mean that the public records law could not be enforced as

to those documents—and that the statute attempted (inef-

fectively) to extend state authority beyond federal constitu-

tional limits.

Underlying some of the city’s arguments discussed

above and explicit in other aspects of its briefing is its basic

contention that the legislature did not intend the disclosure

requirement for public records over 25 years old to apply to

communications subject to the attorney-client privilege. The

city notes that the 1979 amendment to the public records

law was proposed by the state archivist to “simplify use of

certain case file type records for longitudinal research, * * *

genealogical research.” Tape Recording, Senate Committee

on the Judiciary, SB 2011, May 16, 1979, Tape 43, Side 1

(statement of State Archivist J. D. Porter). And, although

potentially confidential records involving physical and

mental health reports, corrections and criminal justice

622 City of Portland v. Bartlett

matters, and some court documents were discussed, the city

explains, “the record does not show that any discussion of

the attorney-client privilege occurred.” Similarly, the city

argues that the legislative history of OEC 503—both its

enactment in 1981 and the addition of OEC 503(7) in 2007,

Or Laws 2007, ch 513, § 3—does not indicate any discussion

of exceptions to attorney-client privilege based on the public

records law.

The city is correct that the legislative history of ORS

192.390 does not indicate that the legislature specifically

discussed whether the disclosure requirement would apply

to records that are attorney-client communications and are

more than 25 years old. Furthermore, the legislative history

of OEC 503, including the addition of OEC 503(7), does not

affirmatively show that the legislature intended to create

an exception to the attorney-client privilege for such pub-

lic records. But neither does the legislative history demon-

strate that the legislature did not intend those results. The

legislative history is essentially silent on the specific issue

before us. In such circumstances, “text and context remain

primary, and must be given primary weight in the analysis,”

because “there is no more persuasive evidence of the intent

of the legislature than the words by which the legislature

undertook to give expression to its wishes.” Gaines, 346

Or at 171 (internal quotation marks omitted). As outlined

above, the text and context support defendant’s position.

Although the public records law and OEC 503 could more

clearly set out the relationship between the disclosure

requirement for public records over 25 years old and priv-

ileged attorney-client communications, the cross-references

between the statutes demonstrate that the legislature was

at least aware of the implications that one statute could have

for the other. ORS 192.390 expressly states that disclosure

of older records is required “[n]otwithstanding” the public

records law exemptions in ORS 192.355, which, until 1987,

expressly referred to the attorney-client privilege and, after

1987, grouped the privilege with other state laws making

records privileged or confidential. And OEC 503(7) shows

that the legislature understood that the public records law

could require the disclosure of communications subject to

the attorney-client privilege.

Cite as 369 Or 606 (2022) 623

III. LOCAL GOVERNMENT HOME-RULE

AUTHORITY

The city and amicus curiae League of Oregon Cities

argue that ORS 192.390, if interpreted to require the disclo-

sure of public records older than 25 years notwithstanding

the attorney-client privilege and applied to local govern-

ments, would violate the two “home-rule” provisions of the

Oregon Constitution. Or Const, Art IV, § 1(5); Art XI, § 2. In

the city’s view, those two provisions “prevent the legislature

from abrogating, limiting, or waiving the attorney-client

privilege of home-rule cities,” and this court should therefore

“construe ORS 192.390 to operate consistently with that con-

stitutional limitation.” For the reasons discussed below, we

do not agree that our interpretation of ORS 192.390 inter-

feres with the home-rule authority of local governments.

As we recently summarized in City of Damascus v.

State of Oregon, 367 Or 41, 54, 472 P3d 741 (2020), the first

home-rule provision, Article XI, section 2, “grants the voters

of every city and town the authority to enact and amend

their own municipal charter, and bars the legislature from

enacting, amending or repealing any city charter.”4 367 Or

at 54. The second, Article IV, subsection 1(5), by its text,

reserves the initiative and referendum powers to the voters

of each municipality “as to all local, special and municipal

legislation of every character in or for their municipality

or district.”5 Relying on this court’s foundational decision

in LaGrande/Astoria v. PERB, 281 Or 137, 576 P2d 1204,

4

Article XI, section 2, provides, in part:

“The Legislative Assembly 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.”

5

Article IV, section 1(5), provides:

“The initiative and referendum powers reserved to the people by subsec-

tions (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 legisla-

tion 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 pro-

vide the manner of exercising those powers as to their municipal legislation.

In a city, not more than 15 percent of the qualified voters may be required

to propose legislation by the initiative, and not more than 10 percent of the

qualified voters may be required to order a referendum on legislation.”

624 City of Portland v. Bartlett

aff’d on reh’g, 284 Or 173, 142-45, 586 P2d 765 (1978), we

observed:

“[T]he primary concern of those who advocated for the

measures was that the voters of municipalities be permit-

ted to determine the structure and organization of their

own municipal governments, but that they did not intend

to oust the state legislature from making substantive law

affecting cities and towns.”

City of Damascus, 367 Or at 55; see also LaGrande, 281 Or at

156 (statutes may not interfere with “the structure and pro-

cedures” of local government unless needed “to safeguard

the interests of persons affected by” those procedures). We

explained, however, that, although local governments had

the authority to enact and amend their own charters and

municipal legislation, the home-rule provisions

“did not impose limits on the legislature with respect to

making substantive law that affects municipalities. And

because the municipal government and the state legis-

lature will at times quite lawfully pursue substantive

objectives regarding the same subjects, * * * there will

be occasions when state and local substantive laws over-

lap or conflict. In such cases, * * * the state and local law

must be allowed to operate concurrently, if possible, but if

that is not possible, the state law will displace the local

law.”

City of Damascus, 367 Or at 55-56 (citation omitted; empha-

ses in original).

The city cites provisions in the Portland City Charter

that confer on the city “all governmental powers” permissi-

ble under state law and vest those powers in the mayor and

four commissioners. Portland City Charter §§ 1-102, 2-102.

And the city refers to sections of the Portland City Code

that establish “an attorney-client relationship” between the

city attorney and the city and that provide that “opinions

and advice” from the city attorney “are privileged attorney-

client communications.” Portland City Code 3.10.060(A), (B).

Based on those sources of law, the city argues that the “privi-

lege [is] part of its governmental structures and procedures”

and that requiring the disclosure of public records subject

to the privilege—even 25 years after the documents are

Cite as 369 Or 606 (2022) 625

created—would be an unconstitutional interference with

those “structures and procedures.”

The city’s argument touches on both aspects of

home-rule authority: local voters’ authority “to determine

the structure and organization of their own municipal gov-

ernments” without state interference, City of Damascus, 367

Or at 55, and local governments’ authority to make sub-

stantive laws for their residents, unless such laws conflict

with state legislation, id. at 55-56. As to the first aspect of

home-rule authority, the public records law, including ORS

192.390, simply has no effect on the “structure and organi-

zation” of the city’s government: It does not limit or alter the

city’s form of government, its charter’s locus of governmen-

tal authority, or the procedures for adopting ordinances. It

does not interfere with voters’ authority to “decide upon the

organization of their government and the scope of its pow-

ers.” LaGrande, 281 Or at 142.

As to the second aspect of home rule, the legisla-

ture enacted the public records law to establish uniform

rules with respect to such records for state and local govern-

ment entities conducting government operations. See ORS

192.001. The public records law is a statute of general appli-

cability, like the statute in LaGrande, which required local

governments to provide a certain level of retirement bene-

fits for police officers and firefighters, ORS 237.610 - 237.640;

ORS 243.005 - 243.055, and the statute in City of Damascus,

which established statewide procedures for local govern-

ment disincorporation elections, Or Laws 2019, ch 545. It is

“substantive law affecting cities and towns,” and the home-

rule provisions do not “oust the legislature from making”

such laws. City of Damascus, 367 Or at 55. State and local

substantive laws can and do operate concurrently, but, when

they are in conflict, “the state law will displace the local

law.” Id. at 56. Thus, even if we were to assume that the leg-

islature’s disclosure requirement in ORS 192.390 and that

provision’s related effect on OEC 503, as applied to the city’s

attorney-client communications, were somehow inconsistent

with provisions of the city code that make reference to that

privilege, the city would have to comply with the former. The

city’s argument that requiring disclosure of the documents

626 City of Portland v. Bartlett

at issue here would violate the home-rule provisions in the

Oregon Constitution is not well taken.

IV. CONCLUSION

To summarize, we conclude that the communica-

tions between the city attorney and city officials at issue

here are not exempt from disclosure under ORS 192.390

on the ground that they are subject to the attorney-client

privilege. The city has not asserted any other basis for not

disclosing those four documents. It may be that, in a dif-

ferent case—perhaps one involving ongoing litigation—the

city would have additional grounds to assert that such doc-

uments need not be disclosed under ORS 192.390. And, of

course, if documents subject to the attorney-client privilege

do not come within the definition of “[p]ublic record[s],” ORS

192.005(5), they are not subject to the public records law

at all. But those issues are not presented here, and we do

not address them. We also conclude that disclosure of the

records here does not interfere with the “structure and pro-

cedures” of the city’s government, but is instead the appli-

cation of “a general law addressed primarily to substantive

social, economic, or other regulatory objectives of the state,”

LaGrande, 281 Or at 156, and the public records law there-

fore prevails over any inconsistent city law.

We recognize the city’s argument that the legisla-

ture may not have intended the 25-year disclosure require-

ment for public records to sweep as broadly as it does. The

city identifies a number of legitimate concerns about poten-

tially adverse consequences for public bodies if they are

required to disclose privileged attorney-client communica-

tions over 25 years old.6 Perhaps, as the city suggests, if the

6

The city also asserts that our holding here cannot be limited to attorney-

client communications but would also apply to other public records subject to

the catchall exemption in ORS 192.355(9)(a). The city lists “confidential” records

that may be subject to disclosure after 25 years as including crime victim infor-

mation, ORS 18.048(2)(b), the identity of informants, ORS 40.275(2), informa-

tion on voter’s disability in voter registration records, ORS 247.973(5), and the

identity of individuals receiving HIV-related tests by any licensed health care

provider, ORS 433.045(4)(a), among others. See also Bartlett, 304 Or App at

605-06 (Powers, J., dissenting) (listing similar public records exemptions that

“will no longer be viable” for public records over 25 years old). We express no opin-

ion regarding the application of ORS 192.390 to those other categories of records,

as other statutes and arguments that we have not considered in this case may

apply to other records.

Cite as 369 Or 606 (2022) 627

legislature had considered the specific question of whether

ORS 192.390 should apply to attorney-client communica-

tions, then it would have exempted or limited its application.

But “[t]he legislature may and often does choose broader

language that applies to a wider range of circumstances

than the precise problem that triggered legislative atten-

tion.” South Beach Marina, Inc. v. Dept. of Rev., 301 Or 524,

531, 724 P2d 788 (1986). And when it does, “[i]n the absence

of an affirmative showing that the narrower meaning actu-

ally was intended by the drafters,” we ordinarily take the

legislature at its word and interpret the statute as written.

Id. We have no authority to rewrite the public records law,

and the city and amicus League of Oregon Cities must look

to the legislature to address their concerns.

For the reasons discussed above, the trial court

erred in granting the city’s motion for summary judgment

and denying defendant’s motion for summary judgment. We

agree with the Court of Appeals decision reversing the trial

court’s judgment and remanding for the trial court to enter

a declaratory judgment in favor of defendant, consistent

with this opinion.

The decision of the Court of Appeals is affirmed.

The judgment of the circuit court is reversed, and the case

is remanded to the circuit court for further proceedings.

Nevertheless, it is apparent that, given the potential scope of the conclusion

we reach here, the legislature may wish to revisit aspects of the public records

law or confidentiality statutes for particular records to ensure that the statutes

align with its policy choices and that uncertainty regarding public agency obliga-

tions and important privacy and confidentiality interests is minimized. We note

that exemptions from disclosure may be found both within the public records law,

e.g., ORS 192.398, or within other statutes relating to particular types of records,

e.g., ORS 279C.815(4) (exempting from disclosure reports made to the Bureau of

Labor and Industries for the purpose of determining prevailing wage rates, not-

withstanding the public records law); ORS 305.192(1) (exempting from disclosure

documents produced in connection with the appraisal or assessment of industrial

property, notwithstanding the public records law).