August 02, 2005
(Updated) PDC Denies Our Public Records Request
Cites Attorney-Client Privilege
Note: This post has been updated. Any and all updates appear at the end of the original post.
In a voicemail to us this morning, Melvin Oden-Orr of the Portland Development Commission officially informed us that the agency was denying our public records request for "[a]ll documents generated by Bradley F. Tellam (or his staff) in the production of his memo re: Chair Hennessee and the Clevenger/3 PR contracts."
We'll set aside, for the moment, the fact that the request apparently had been denied by the technical virtue of the agency not having responded within seven working days from receipt of the request, which Oden-Orr said was on July 18 (this fits with our having delivered it on July 15, which was a Friday).
What we will mention here is the reason Oden-Orr cited for the denial: They consider this material to be protected by attorney-client privilege.
Here's our discussion question: Does this make sense? It seems to us to be more or less equivalent to a hypothetical situation such as this: Someone makes a charge against us, we ourselves retain an attorney to investigate the charge, and that attorney comes back and tells everyone the charge is without merit.
If any individual were to do that, no one would ever take the attorney's determination seriously. So why does PDC get to claim the work of this investigation is protected by attorney-client privilege?
Relatedly, this raises the question of just what it is that PDC supposedly was going to release today (we still don't even know if its a general release, or something in response to another media outlet).
One potential clue -- and this really is just a stab in the dark here -- is a reference in the original Oregonian article about the so-called "report" in question, which includes this bit:
Judy Tuttle, the agency's interim executive director, sent an e-mail summarizing the report to the agency's staff just before the meeting started.
So, it's possible -- again stressing that this is just a wild guess on our part -- that some other media outlet might have requested that Tuttle email in order to see whatever summary had been sent out to PDC staff.
Whatever the case, we, at least, apparently are receiving nothing from PDC. If we take Oden-Orr's voicemail correctly, they did not take our request and comply in part and deny in part, but simply denied it outright. So for the moment, we will all just have to wait and see where whatever it is they supposedly are releasing today shows up.
August 2nd, 2005 Update
Oh, the point of our comparative hypothetical was this: If something is internal enough to be considered covered by attorney-client privilege, how can that also be considered an investigation with any sort of independence whatsoever?
Comments (4)
erika on 02 Aug 2005
I have a feeling your response to my comment will be: 'But PDC is a PUBLIC agency, therefore in the attorney-client relationship, the PUBLIC is also the client and thereby entitled to see the documents at issue,' however, that matters neither here nor there unless you somehow make it in front of a judge. Maybe an appellate judge. Bottom line is that the attorney-client privilege doctrine exists to foster full disclosure between the parties without risk of the attorney having to testify against the client (see 'The Attorney-Client Privilege and the Work-Product Doctrine' published by the American Bar Association), and is held as a very high standard.
Here's my suggestion: re-craft your request so that the attorney-client privilege cannot be invoked. Instead of outrightly asking for documents used by, or given to, the attorney, ask for:
"all letters, notices, e-mails, memoranda, meeting notes, file notes, and minutes prepared by or for Hennessee, or by or for his staff, during the time period -(blank)- to -(blank)- related to the Clevenger/3 PR contracts."
Although PDC may still deny the request, in that instance at least their denial would be more objectively suspicious.
The One True b!X on 02 Aug 2005
Actually, heh, my response is this: They can have their attorney-client privilege if they admit that the investigation doesn't qualify as anything resembling independent and verifiable.
Behind the Scenes on 02 Aug 2005
"Bottom line is that the attorney-client privilege doctrine exists to foster full disclosure between the parties without risk of the attorney having to testify against the client"
I would point out the request was made of PDC, the client, not the attorney. There is no general "attorney-client" exemption that I can find in the public records law. There are exemptions related to litigation, but that does not seem to fit this scenario.
I believe Michael Schrunk would get access to all the documents to reveiw them if you appeal.
doretta on 03 Aug 2005
Well, they can claim anything they want, which your hypothetical individual could also do. The question, as you say, is whether or not we should take what they say seriously. The answer is that we obviously shouldn't.
Being the client, they could waive attorney-client privilege and release the information. They just don't want to.
It's all obfuscation. They just hope we are all too dumb to notice if they make it sound all official-like. Apparently that's worked well enough in the past.
Some members of the city council, including the mayor, have said they want to make serious changes to how PDC operates because of a lack of accountability. Seems to me PDC is just digging that hole deeper with this kind of behavior.