Oregon State Bar Bulletin — JANUARY 2008
Legal Practice Tips
The Standard Has Been Altered
Does Attorney-Client Privilege Protect Public Records?
By Calon Russell, Peter Jarvis and Roy Pulvers

Imagine this scenario. You are an ordinary citizen who suspects the city parks and recreation bureau of widespread corruption. You finally succeed in getting city council to hire an attorney to investigate. Upon completion of the investigation you contact a city council member to discuss the results. She discloses a significant amount of information to you. Although you are disturbed by this information, the city is not. The city takes no remedial action and issues a press release stating that no wrongdoing was uncovered. Your best chance to advance your cause is by demanding public disclosure of the results.

Based on Oregon Senate Bill 671, you may be out of luck. This amendment to the state public records law applies to public records created on or after the date the bill took effect, June 20, 2007.

Background
Senate Bill 671 addresses the issues raised in Klamath County School District v. Teamey, 207 Or App 250, 104 P3d 1152 (2006) rev. denied 342 Or 46, 148 P3d 915 (2006), namely the tension between attorney-client privilege and the public’s right to access government records. In June 2000, Klamath County residents attended a school board meeting and presented allegations of misconduct and mismanagement by district employees. In response to these allegations, the district’s outside counsel recommended and conducted an investigation. His investigation involved hiring an auditor and an investigator, each of whom produced a report. He then discussed these reports with the school board in December 2000. In January 2001, the district issued a press release stating in part:

There are a few of our district policies that need to be strengthened and our purchasing procedures need to be reviewed. This is now being accomplished and will be monitored by the superintendent. We also believe the charges against the district administrators are not substantiated and we believe there is clear evidence of no wrongdoing!

Klamath County, 207 Or App at 255.
Two months later defendant Teamey requested copies of the reports; the superintendent denied his request. Teamey then petitioned the district attorney to order compliance with Teamey’s request. The district attorney ordered the school district to submit the reports to him for review; the district did not comply. He then ordered the school district either to submit the reports to Teamey or to seek declaratory relief. The district chose the latter.

The Case
The Klamath County Circuit Court held that the reports were privileged. On appeal the Oregon Newspaper Publishers Association (ONPA) joined by 24 newspapers and the Associated Press filed an amicus brief on the defendant’s side. Nevertheless, the decision was upheld. The ONPA was subsequently involved in the effort that resulted in Senate Bill 671.

Potential Issues of Statutory Interpretation
Our hypothetical is somewhat similar to the Klamath County case; it is designed to highlight some of the provisions of the bill that may lead to statutory interpretation issues.

The key provisions of the bill amend ORS 192.502(9), which exempts from public disclosure public records and information that are privileged under Oregon law. The legislature added a new exception, ORS 192.502(9)(b), requiring disclosure of "factual information compiled in a public record" when:

(A) The basis for the claim of exemption is ORS 40.225 [attorney-client privilege];

(B) The factual information is not prohibited from disclosure under any applicable state or federal law, regulation or court order and is not otherwise exempt from disclosure under ORS 192.410 to 192.505 [Oregon Public Records law];

(C) The factual information was compiled by or at the direction of an attorney as part of an investigation on behalf of the public body in response to information of possible wrongdoing by the public body;

(D) The factual information was not compiled in preparation for litigation, arbitration or an administrative proceeding that was reasonably likely to be initiated or that has been initiated by or against the public body; and

(E) The holder of the privilege under ORS 40.225 [OEC 503] has made or authorized a public statement characterizing or partially disclosing the factual information compiled by or at the attorney’s direction.

In Klamath County, the court had interpreted the language in section 9(a) as a catchall privilege exemption from disclosure. Senate Bill 671 carves out a narrow exception to this rule when a holder of the privilege has made or authorized a public statement of a certain character, and creates an additional attorney-client privilege analysis.

Based on these provisions, several issues of interpretation may come up in our hypothetical. The first issue involves the meaning of "factual information." The remaining issues involve interpreting subsections (C) and (E).

What Constitutes Factual Information?
"Factual information" is not defined in Senate Bill 671. Nor is it defined elsewhere in Chapter 192. Given the breadth of information potentially gathered in an investigation, parsing out factual information could be difficult. For example, would allegations made by parks and recreation employees constitute factual information? Further, this issue would likely come up under Section 2 of the bill, which allows public bodies subject to disclosure under these provisions to release a condensation of the "significant facts" uncovered in the investigation without further waiving the privilege.

Who Compiled The Factual Information?
In our hypothetical, as in Klamath County, an attorney conducted the investigation. The likely issue under subsection (C) is whether a given fact was compiled "at the direction of an attorney." For example, if an accountant working under an attorney acquires information outside the scope of the attorney’s directions, would that information be privileged? Similarly, if the accountant hired an assistant, would the assistant be working "at the direction of an attorney"?

Who Is The Subject Of The Investigation?
Subsection (C) is unclear with respect to the context and meaning of the term "the public body," when it provides for disclosure of factual information compiled "in response to information of possible wrongdoing by the public body." Assuming that the statute refers to wrongdoing committed by the public body, then how should the term "public body" be interpreted? Does it refer to the government body itself or, rather, to individuals who may be authorized to act on behalf of the government (officials or certain employees), or does it extend to cover lower-level governmental employees? Does it include the conduct of a single elected official, such as a county commissioner, who may be a constituent member of a public body but who may not have any authority to act as an individual on behalf of the public body?

How Much Was Disclosed Following The Investigation?
This question (as well as the next two questions) gets at whether the privilege was waived under subsection (E). It seems unlikely that the press release alleging no wrongdoing could be construed as "characterizing or partially disclosing" factual information. In contrast, the plaintiff school district in Klamath County issued a press release stating, inter alia, "[t]here are a few of our district policies that need to be strengthened and our purchasing procedures need to be reviewed." Klamath County, 207 Or App at 255. This statement seems closer to a waiver under subsection (E), but it would not likely be a waiver under the traditional OEC 511 test, which requires that a "significant part of the matter or communication" be disclosed. In fact, although this issue was not preserved on appeal in Klamath County, the circuit court ruled that the statement did not waive privilege. Klamath County School District v. Teamey, Klamath County No. 03-00627CV at 10 (August 17, 2004).

Who Was Responsible For The Disclosure?
Even if a statement "characterizes or partially discloses" factual information, the privilege may remain intact. For example, in our hypothetical, even though the city council member disclosed a significant amount of information, there is still an issue as to whether she is "the holder of the privilege." Would a majority, or even all of the city council members have to consent to the statement?

To Whom Was the Disclosure Made?
Finally, even if the city council member was the holder of privilege, her statement may not have been a "public statement," because it was made to a single person over the phone. Does a "public statement" require a certain size or type of audience or a certain type of forum? This issue might also come up in situations where the press is allowed to sit in on an executive session. The presence of the press points toward a "public statement," but the exclusive nature of such sessions suggests a private statement.

Conclusion
Senate Bill 671 alters attorney client privilege standards for public bodies seeking to withhold records of internal investigations. In order to assert this privilege, public bodies must be careful in disclosing any information related to such records. However, so long as the records are not "characterized or partially disclosed" to the public, public bodies may be able to withhold any such records by simply hiring an attorney or utilizing the government body’s legal counsel to direct the investigation.

 

ABOUT THE AUTHOR
Calon Russell is a law clerk in the Portland office of Hinshaw and Culbertson. Peter Jarvis and Roy Pulvers are partners in the firm.

© 2008 Calon Russell, Peter Jarvis and Roy Pulvers


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