Brown’s administration wins bid to keep state records secret – for now

The Oregon Court of Appeals late Friday granted a request by state officials to keep secret for now the details about proposed legislation, acting just minutes before the state was due to publicly disclose the records.

An attorney pressing for disclosure said Gov. Kate Brown was trying to keep the public away from her legislative ideas until after a closely-contested race for governor.

A Marion County judge earlier in the week ordered the state to release documents by 5 p.m. Friday that showed changes in law being proposed by state agencies.

Portland attorney Greg Chaimov sued state officials in Brown’s administration after they denied his request for the records. Chaimov said he has routinely received such documents since back to 2010.

Appellate Commissioner James Nass wrote in Friday’s order that the state “has shown a reasonable possibility of prevailing on appeal.”

Nass granted the state’s stay in part on technical grounds, finding that Marion County Circuit Judge Audrey Broyles didn’t put in writing her order denying the state’s request to postpone disclosure of the documents until the appellate court had time to rule.

However, the appellate court also concluded the state was appealing that decision in good faith “and not for the purpose of improper delay.”

Chaimov’s attorney, John DiLorenzo, said the court’s decision has political implications for the Nov. 6 election.

Brown, faced with a formidable challenge from state Rep. Knute Buehler, has demurred answering questions about how she would pay for certain policy proposals, such as education reform or whether she would seek to raise taxes.

The records could reveal her plans, DiLorenzo said.

The decision “plainly will have the effect of keeping the records away from public scrutiny until after the last ballots are cast in the upcoming general election,” DiLorenzo wrote in a response trying to blunt the state’s appeal.

The legal question facing the appellate court is whether Brown and her administration can keep proposed law changes secret while legislative lawyers are drafting legislation. The answer depends partly on whether by having legislative lawyers draft bills, state agencies can claim the confidentiality of attorney-client privilege.

Chaimov, a former legislative lawyer now with the Portland law firm Davis Wright Tremaine, habitually requests the forms and provides them to business clients. He sought the internal records last July, but the state Department of Administrative Services denied his request, saying disclosure would breach attorney-client privilege.

Sarah Weston, attorney for the Oregon Department of Administrative Services – the agency that is custodian of the documents – argued Wednesday that the agency views lawyers in the Legislative Counsel’s office as their attorneys when it comes to drafting legislation. That would mean communications sent to those attorneys were protected by client privilege.

But DiLorenzo argued that attorneys in the Legislative Counsel office by law can only provide legal advice to legislators.

Broyles agreed with DiLorenzo in her order.

“I cannot find that the Department of Administrative Services could have expected to form an attorney-client relationship,” Broyles said. “I find the state has failed to meet its burden to establish either that there is a public records exemption that exists or that there is existence of an attorney-client relationship.”

Paris Achen: [email protected] or 503-363-0888. Achen is a reporter for the Portland Tribune working for the Oregon Capital Bureau, a collaboration of EO Media Group, Pamplin Media Group and Salem Reporter.