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Clackamas River Water v. Holloway

Court of Appeals of Oregon

March 26, 2014

CLACKAMAS RIVER WATER, Plaintiff-Respondent,

Argued and Submitted: May 17, 2013.

Clackamas County Circuit Court. LV11040413. Donald B. Bowerman, Judge pro tempore.

James D. Huffman argued the cause and filed the briefs for appellant Patricia Holloway. Michael F. Sheehan filed the briefs for appellant Warren Mitchell.

Brenda K. Baumgart argued the cause for respondent. With her on the brief were Karen L. O'Connor and Stoel Rives LLP.

Before Duncan, Presiding Judge, and Wollheim, Judge, and Schuman, Senior Judge.


Page 615

[261 Or.App. 854] SCHUMAN, S. J.

Clackamas River Water (CRW), a domestic water supply district, brought this action seeking a declaration that defendants had to return to CRW documents that defendants had obtained through a public records request, so that CRW could determine which parts of the documents, if any, should have been withheld because they were exempt from public disclosure. CRW also sought a " temporary and preliminary" injunction requiring defendants immediately to return the documents. In response, defendants invoked Oregon's Anti-SLAPP statute, under which a defendant in an action arising out of some forms of the defendant's public participation can file a " special motion to strike" a plaintiff's claim unless the plaintiff can establish, at a preliminary hearing, " a probability that the plaintiff will prevail on the claim." ORS 31.150(1), (3).[1] The trial court granted [261 Or.App. 855] defendants' special motions and dismissed CRW's complaint. However, the trial court also included in the judgment an order that granted CRW injunctive relief. The judgment states:

" IT IS HEREBY ORDERED that defendants' respective Special Motions to Strike are GRANTED. It is also ordered that defendants are hereinafter prohibited

Page 616

from using, disclosing, or otherwise disseminating any records created, maintained, or kept in the ordinary course of plaintiff's business that are now or have been in defendants' possession at any time, if such records are or would be exempt from disclosure under Oregon's public records law, ORS 192.410 to 192.505."

Defendants appeal the judgment, characterizing the second sentence as a grant of the injunction that CRW sought and to which the court determined, in the first sentence, that CRW was not entitled. CRW, for its part, does not cross-appeal; it concedes, in other words, that its action against defendants " arises out of" defendants' statements in a proceeding authorized by law--presumably, defendants' written request for CRW to comply with the public records law--and that CRW could not establish a probability that it would prevail on its claim. Rather, CRW characterizes the judgment as " effectively dismissing [CRW's] claims, and fashion[ing] appropriate equitable relief." We agree with defendants. We therefore reverse and remand.

Because this action ended at an early stage, before either party had the opportunity to develop a factual record, and because the court made no findings, the facts are murky. As best we can discern, they are as follows. CRW, as noted above, is a domestic water supply district organized under ORS chapter 264 and subject to the public records disclosure laws in ORS chapter 192. Defendant Holloway was at all relevant times a CRW board member, and defendant Mitchell is a former board member. Between September 2007 and January 2008, Mitchell repeatedly sent public records requests to CRW's management seeking several months' e-mails sent or received through the CRW e-mail system. When his repeated requests went unfulfilled, [261 Or.App. 856] Mitchell, pursuant to ORS 192.450 and ORS 192.460,[2] petitioned the Clackamas County District Attorney for an order requiring CRW to disclose the requested records.

The district attorney's office contacted CRW and informed it of the request. CRW provided a letter in response, attached to which were six compact computer discs. CRW claimed that " each individual disc" contained all of the requested e-mails. CRW also explained that it had not verified the contents of the discs and that it was possible that the discs contained material that could be exempt from public records requests. Specifically, CRW seems to have been concerned that the discs might have contained private personal information about CRW employees, as well as documents subject to attorney-client privilege. The district attorney's office did not open the contents of the discs due to " software problems." Nevertheless, the district attorney issued an order explaining that e-mails are generally subject to disclosure as public records and that it was CRW's " responsibility to review [its] own records to determine whether any specific personal privacy exemptions or attorney-client privileges exist and to adequately articulate the same." Finally, the order allowed petitioner's request " for disclosure of all emails received or sent through the Clackamas River Water e-mail system for the period July 2, 2007 through January 3, 2008 * * * as to all non-exempt e-mail detailing the ...

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