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High court turns away public records case

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NEWS MEDIA UPDATE   ·   OREGON   ·   Freedom of Information   ·   Dec. 7, 2006

NEWS MEDIA UPDATE   ·   OREGON   ·   Freedom of Information   ·   Dec. 7, 2006


High court turns away public records case

  • The state high court declined to review a decision that found the attorney-client privilege blocked the release of a school board investigation under the state public records law.

Dec. 7, 2006  ·   The Oregon Supreme Court has declined to review a lower court decision that blocked the release of a school board investigation into employee misconduct because the lower court ruled the investigation was conducted by a lawyer in the course of providing legal advice.

The dispute goes back to 2000, when residents of Klamath County, Ore., approached the local school board with allegations that district employees were mismanaging finances. The school board chairman contacted a lawyer for advice on how to handle the accusations and the lawyer recommended an investigation, which the lawyer subsequently led.

In 2002, resident Bert Teamey asked the local district attorney to order the details of the then-completed investigation released. The district attorney did so, but the school board went to court, where a trial judge overturned the district attorney’s decision. In August, the Oregon Court of Appeals upheld that decision.

The appeals court ruled that the state public records law did not allow for disclosure because the attorney-client privilege applied to the investigation, which was conducted by the attorney for the purpose of advising the school board on what it should do. In Oregon, the attorney-client privilege applies to “confidential communications made for the purpose of facilitating the rendering of professional legal services to the client.”

The court said the state public records law explicitly exempts from disclosure documents that are privileged under other state laws, and thus documents subject to attorney-client privilege do not have to be released, even in cases where there is a strong public interest in accessing the documents in question.

The law does not “provide for discretion for courts to apply the exemption ‘sparingly and with restraint’ or to apply it only when there is ‘an overwhelming public interest in maintaining confidentiality,'” the appeals court wrote.

Teamey’s lawyer argued that the purpose of the communications between the school board and its attorney was investigation of wrongdoing, not to give and receive legal advice, and thus the attorney-client privilege did not apply.

More broadly, Teamey’s attorney argued that in the absence of ongoing litigation, the attorney-client privilege should not apply to public bodies merely looking into wrongdoing or else there would be an incentive for public officials to hire attorneys to conduct investigations so that they could conceal embarrassing results behind the wall of attorney-client privilege.

“Quite frankly, this case provides a road map to hide anything that is potentially embarrassing to a public body,” Bradford Aspell, Teamey’s lawyer, told The Associated Press last week.

Several media organizations filed a friend-of-the-court brief urging the Supreme Court to take the case and overturn the decision, which they said “unnecessarily impinges on the strong, enduring policy favoring public disclosure of public records.”

(Klamath County School District v. Teamey, Media Counsel: Bradford Aspell, Aspell, Della-Rose & Richard, Klamath Falls, Ore.)NW

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