190921

The City of Portland ordains:

Section 1. The Council finds:

1. In late 2015, Mark Bartlett (“Bartlett”) submitted a public-record request for three City Attorney opinions and a 1990 memorandum from then-City Attorney Jeffrey Rogers to then-Mayor Bud Clark. The City denied that request, citing the attorney-client privilege. Bartlett challenged that denial to the Multnomah County District Attorney.
2. On January 8, 2016, the District Attorney concluded that the requested records were indeed covered by the attorney-client privilege, but that ORS 192.390 required their release because all were more than 25 years old.
3. On January 13, 2016, the City Council adopted Resolution 37183, which authorized the City Attorney to institute proceedings to challenge the District Attorney’s order of disclosure, noting that the intersection of public records law and the attorney-client privilege presents complex and important issues that would be served by judicial or legislative clarification.
4. In 2017, the Multnomah County Circuit Court ruled for the City, holding that ORS 192.390 does not require the disclosure of attorney-client privileged documents that are more than 25 years old. Bartlett appealed from that adverse judgment.
5. In 2020, the Oregon Court of Appeals reversed the judgment of the County Circuit Court in a split en banc decision. City of Portland v. Bartlett, 304 Or App 580, 468 P3d 980 (2020). The majority recognized that “the issue is close” but concluded that “ORS 192.390 requires the disclosure of * * * attorney-client privileged records that are older than 25 years old.” Id., 304 Or App at 591, 597. The dissent would have would have held otherwise. Id. at 597-606 (Powers, J., dissenting, joined by DeVore and James, JJ.) The City petitioned the Supreme Court for review.
6. In April 2022, the Oregon Supreme Court affirmed the judgment of the Court of Appeals and held that ORS 192.390 requires the disclosure of attorney-client privileged records after 25 years. City of Portland v. Bartlett, 369 Or 606, 509 P3d 99 (2022). In doing so, the court acknowledged the City’s “legitimate concerns about potentially adverse consequences for public bodies if they are required to disclose privileged attorney-client communications” and that “the legislature may not have intended the 25-year disclosure requirement [of ORS 192.390] to sweep as broadly as it does.” Id., 369 Or at 626. The court further noted that “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 obligations and important privacy and confidentiality interests is minimized.” Id. at 626 n6.
7. Under ORS 192.431(3), Bartlett is entitled to recover attorney fees at trial and on appeal. Bartlett conveyed his intent to seek a combined total of $405,996.00 in attorney fees and costs in the Multnomah County Circuit Court, Oregon Court of Appeals, and Oregon Supreme Court.
8. The City Attorney’s Office recommends the payment of $200,000.00 as a compromise from the full demand to resolve the matter without further legal proceedings.

NOW, THEREFORE, the Council directs:

1. The City Attorney’s Office is hereby authorized to enter into and execute a settlement agreement, in a form substantially similar to Exhibit A attached hereto, to resolve the Lawsuit.

2. The Mayor and the Auditor are hereby authorized to draw and deliver a check in the amount of $200,000.00 made payable to Davis Wright Tremaine LLP.

Section 2.  The Council declares that an emergency exists in order to avoid undue and costly delay in settling this matter; therefore, this Ordinance shall be in full force and effect from and after its passage by the Council.