The City's Terrified You'll Access Its Decades Old Legal Opinions—So It's Heading To Court

In the 1980s, the Portland City Attorney's office shared three opinions with Portland city officials.

It shared far more than that, of course, but the Multnomah County District Attorney has specifically ordered that you should be able to see these ones, along with a city attorney's memo from 1990. They're the subject of a recent public records request by Portlander Mark Bartlett, who believes the opinions could throw a wrench in the ongoing transformation of open-air water reservoirs on Mt. Tabor and in Washington Park. And they're aged enough—more than 25 years old—that the DA's office says they're no longer subject to attorney-client privilege.

Portland City Council mostly disagrees. In a 4-1 vote this morning, at the urge of city attorneys, commissioners voted to appeal the order that it fork over the documents. That despite the DA's office's belief that state law unequivocally mandates that "public records that are more than 25 years old shall be available for inspection."

Commissioner Steve Novick, who noted he doesn't "see away around" the DA's opinion, was the lone "no" vote.

Commissioners took a lot of heat from audience members for the decision, but most were ardent that it was necessary. At issue, they argued, was the integrity of the city's legal defense. Led by Commissioners Nick Fish and Amanda Fritz, the council seemed to agree that frank legal opinions might be jeopardized if you and I could access them two and a half decades down the road.

"If we can't get candid legal advice about the strengths and weaknesses of our case without fear they will become part of the public domain… we won’t ask for them," said Fish. "In that narrow instance, I think the district attorney’s decision doesn’t make sense."

Fish says he's not at all concerned with the specific content of Bartlett's request—and that he doesn't even know what the memos contain. If he were, he'd perhaps have more reason than other commissioners to take issue in this case. Bartlett is a longtime participant in the struggle over the open air reservoirs. In his request and subsequent appeal, he makes clear he believes the opinions he's asking for could stymie plans for repurposing the reservoirs, which is largely the purview of the Fish-controlled Portland Water Bureau. Bartlett apparently believes land transfers between the Water Bureau and Portland Parks and Recreation are "illegal."

"If the City is confident that they are not acting illegally and are complying with the Charter, then disclosing the content of these opinions...will not be any concern," he writes.

Council plainly disagrees. Fish repeatedly raised scenarios like the ongoing cleanup of the Portland Harbor Superfund, which has dragged on for years, and promises to drag on for years more. Fish argues it's possible legal advice the city received at the beginning of the process could be publicly available before its all over—to the general public, sure, but more worryingly to oppositional parties.

"If the statute can be read in a different way…I’d prefer to have a court decide that," Fish said.

Everyone except Novick agreed, though even Chief Deputy City Attorney Harry Auerbach conceded the appeal was "not a slam dunk by any means. We're trying to preserve our ability to give you the best legal advice we can."

City council's also going to try to petition the legislature to modify Oregon public records law, to make clear that attorney-client privilege should never expire.

Weirdly, this wasn't the only appeal council mulled this morning. Commissioners also debated whether to fight a recent ruling [pdf] by US District Court Judge Michael Simon that people can't be excluded from city properties into the future for being disruptive on a given day.

The ruling came after Joe Walsh, a frequent gadfly at city council hearings, filed suit, disputing a months-long exclusion issued last July. (The city used to have footage online of the delightful and theatrical exchange that led to Walsh receiving the exclusion, but now I can't find it.) In his opinion, Simon essentially struck down the city ordinance (scroll down to 5b) that allows the city to kick people out of public buildings for weeks, months, or forever, for violating rules of conduct. Simon upheld the city's ability to kick people out of individual hearings for being disruptive.

The city's thinking of appealing that—largely, it emerged today, because commissioners are concerned Portland no longer has leeway to ban people who are threatening city officials or staff. Looming large in that discussion was a November 25 incident where police arrested a man named Barry Joe Stull prior to the council meeting (video below). When the room was cleared out, someone had apparently left a backpack behind containing, according to Commissioner Dan Saltzman, a "beeping smoke detector."

"I don't know if this was a hoax," Saltzman said this morning. "The intent was to stoke fear."





Commissioners had far more qualms about appealing Walsh's case than they had in the public records matter. That was helped along by Mat dos Santos, legal director at the ACLU of Oregon, who said his organization opposed the appeal.

"A simple fix to the ordinance would create exactly what you’re trying to do," dos Santos said. "Identify a distinction between city council meetings where people are disruptive and situations where people are creating an actual threat. That is not protected by the first amendment—never has been."

Commissioners liked that suggestion, but held off on any action today. They'll reconsider an appeal in two weeks.

By the way, Walsh also spoke up at the hearing, chiding commissioners for even considering an appeal of his victory—which could set precedent in the Ninth Circuit Court of Appeals.

"You'll make me a folk hero in nine states," Walsh said. "I'm too old for that."