Portland Harbor Superfund Cleanup Agreement Exempt from Disclosure Under Oregon Public Records Act

The Port of Portland did not have to disclose a joint defense agreement among the lawyers for several parties potentially responsible for cleanup of the Portland Harbor Superfund Site.  A public interest group sought disclosure of the agreement under Oregon’s Public Records Act (“PRA”). The trial court and the Court of Appeals held that the agreement was exempt from disclosure under ORS 192.502(9)(a). Port of Portland v. Oregon Ctr. for Envtl. Health, 238 Or. App. 404 (Or. Ct. App. 2010. The Oregon exemption covers “public records or information the disclosure of which is prohibited or restricted or otherwise made confidential or privileged under Oregon Law.” The exemption encompasses materials that are subject to the attorney-client and work product privileges codified in Oregon’s Evidence Code, including “confidential communications made for the purpose of facilitating the rendering of professional legal services” and communications “by the client or the client’s lawyer to a lawyer representing another in a matter of common interest.” OEC 503(2). Despite the public interest group’s protestations that the agreement did not fit within the exemption, the Court held otherwise.  The Court held the agreement was exempt from disclosure under Oregon’s PRA as a confidential legal communication generated as a matter of common interest among lawyers representing the parties potentially responsible for the Superfund site.

Washington’s Public Records Act similarly contains exemptions for documents subject to attorney- client privilege. Washington’s general attorney-client privilege statute, RCW .60.060 (2)(a), is considered an "other statute" that provides for exemption from disclosure, as described in RCW 42.56.070 (1) of the PRA.  In addition, RCW 42.56.210 (1)(j) exempts attorney work-product involving a "controversy," i.e. completed, existing, or reasonably anticipated litigation involving the agency. See WAC 44-14-06002 (codifying the Washington State Attorney General’s Model Rules on Public Disclosure).  In general, the attorney-client privilege covers records reflecting communications made in confidence between a public official or agency employee acting in the performance of his or her duties, and an attorney serving in the capacity of legal advisor for the purpose of rendering or obtaining legal advice. The privilege also covers records prepared by the attorney in furtherance of the rendition of his or her legal advice. Id.  For example, recognizing a public interest in defending against civil liability, the Washington Supreme Court applied privilege protections to documents created by a school district’s legal team during the team’s investigation of a student’s death giving rise to potential liability. Soter v. Cowles Publ’g Co., 162 Wn.2d 716, 174 P.3d 60 (2007).

Washington State Supreme Court rules in Morgan v. City of Federal Way

Approximately 48 hours after oral argument, a unanimous Washington State Supreme Court issued an order in Morgan v. City of Federal Way that authorized the City of Federal Way to release the "Stephson Report."  An opinion will follow in the next few months.  (The order was slightly revised on Friday -- here is the final amended order.)  This is the relief sought by the City and the Tacoma News Tribune. 

Here is an analysis of the order from the Supreme Court of Washington Blog by EFF. 

Here are posts on the ruling at the Bellingham Herald,  Washington Policy Blog, the Og-Blog and the Reporters Committee for Freedom of the Press blog.

Foster Pepper represented the City of Federal Way in this case.

Oral Argument in the Washington State Supreme Court (video)

Update

Steve Maynard, the requester in Morgan, summarizes oral arguments in this TNT article: "Attorneys, Supreme Court justices joust over Federal Way judge investigation." 

Here is a TNT editorial on the Morgan case:   "FWay court probe should be public"

Here's a nice summary of the issues in both Morgan and Koenig from the Supreme Court of Washington Blog by the Evergreen Freedom Foundation. 

Original Post

The Washington State Supreme Court arguments for Morgan v. City of Federal Way and City of Federal Way v. Koenig (like all arguments) were televised and available on the web on TVW.   For more information on the issues in the case, see this post

Here are the videos: 

Morgan v. City of Federal Way

John Schochet, representing Judge Morgan, argues first. 

James Beck, representing the Tacoma News Tribune, starts at 17:20.

Ramsey Ramerman, representing the City of Federal Way, starts at 25:10.

John Schochet's rebuttal starts at 38:45. 

City of Federal Way v. Koenig

William Crittenden, representing Mr. Koenig, starts.

Ramsey Ramerman, representing the City of Federal Way, begins at 13:20.

Mr. Crittenden's rebuttal begins at 30:45.