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Brown v. Guard Publ'g Co.

Court of Appeals of Oregon

December 17, 2014

JOHN BROWN, BOB CASSIDY, RICH CUNNINGHAM, JOANN ERNST, and RON FARMER, as Commissioners of the Eugene Water & Electric Board, an Oregon municipal corporation, Plaintiffs-Respondents,
v.
GUARD PUBLISHING COMPANY, an Oregon corporation, dba Register-Guard, Defendant-Appellant, and SENECA SUSTAINABLE ENERGY, LLC, an Oregon limited liability company, Intervenor-Respondent, and ALEXANDER GARDNER, as Lane County District Attorney, Defendant

Argued and Submitted February 12, 2014.

161026544. Lane County Circuit Court. Karsten H. Rasmussen, Judge.

Jack L. Orchard argued the cause for appellant. With him on the briefs were Adele J. Ridenour and Ball Janik LLP.

Eric S. DeFreest argued the cause for respondents John Brown, Bob Cassidy, Rich Cunningham, Joann Ernst, and Ron Farmer. With him on the brief were Joel S. DeVore and Luvaas Cobb.

Rohn M. Roberts argued the cause for respondent Seneca Sustainable Energy, LLC. With him on the briefs were Aaron J. Noteboom and Arnold Gallagher PC.

Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Lagesen, Judge.[*]

OPINION

Page 146

[267 Or.App. 554] DUNCAN, P. J.

This case involves a public records request by defendant Guard Publishing Company (dba The Register-Guard), who sought disclosure of an energy purchase contract

Page 147

between respondents, the Commissioners of the Eugene Water and Electric Board (EWEB) and Seneca Sustainable Energy, LLC (Seneca). EWEB denied the records request and eventually initiated this action for injunctive and declaratory relief to establish that the contract, in its entirety, is exempt from disclosure under the Oregon's public records law, ORS 192.410 to 192.505. Among other exemptions, EWEB relied on ORS 192.502(26), which exempts from disclosure certain " [s]ensitive business, commercial or financial information" furnished to or developed by a public body who, like EWEB, is engaged in the business of providing electricity, if " disclosure of the information would cause a competitive disadvantage for the public body or its retail electricity customers."

Seneca intervened in the action and, along with EWEB, moved for summary judgment on the theory that the entire contract is exempt from disclosure under ORS 192.502(26). The Register-Guard opposed their motions and filed its own cross-motion for summary judgment, arguing that EWEB had not carried its burden to demonstrate that all of the information within the contract--as opposed to the contract as a whole--is exempt from disclosure. The trial court ruled in favor of EWEB and Seneca and entered a judgment declaring that the entire contract is exempt, which The Register-Guard now appeals. For the reasons that follow, we conclude that the summary judgment record permits competing inferences as to whether all of the information within the contract was " [s]ensitive business, commercial or financial information," the disclosure of which " would cause a competitive disadvantage for" EWEB or its retail customers. Accordingly, we reverse and remand.

I. BACKGROUND

EWEB is a municipal utility that provides electricity service to customers in the Eugene area by contracting with entities that buy and sell wholesale energy. Seneca is a private company that owns and operates a facility that [267 Or.App. 555] generates biomass energy. In 2010, EWEB announced that it had entered into a contract with Seneca for the purchase of biomass-produced electricity. See ORS 261.348 (authorizing people's utility districts and municipal electric utilities to " enter into transactions * * * for the production, supply or delivery of electricity on an economic, dependable and cost-effective basis" ).[1] The Register-Guard requested a copy of that contract from EWEB, but EWEB denied the request on the ground that the contract was exempt from the disclosure requirements of the public records law.

The Register-Guard then petitioned the Lane County district attorney to review the contract to determine whether it could be withheld from public inspection. See ORS 192.460 (providing that avenue of review in certain circumstances for persons who are denied the right to inspect public records). After reviewing the contract, the district attorney ordered EWEB to disclose it. In response, EWEB and, later, Seneca as an intervenor, sought injunctive and declaratory relief from that order in the Lane County Circuit Court, alleging that the entire contract is exempt from disclosure under various provisions of the public records law and that EWEB was under no obligation to disclose any of its contents. See ORS 192.450(2) (requiring

Page 148

a public body to comply with a disclosure order within seven days of the order, unless the public body issues a notice of its intention to institute proceedings for injunctive or declaratory relief). EWEB and Seneca relied on, among other exemptions, ORS 192.502(26), [267 Or.App. 556] which exempts from disclosure the following " public records" :

" Sensitive business, commercial or financial information furnished to or developed by a public body engaged in the business of providing electricity or electricity services, if the information is directly related to a transaction described in ORS 261.348, or if the information is directly related to a bid, proposal or negotiations for the sale or purchase of electricity or electricity services, and disclosure of the information would cause a competitive disadvantage for the public body or its retail electricity customers. This subsection does not apply to cost-of-service studies used in the development or review of generally applicable rate schedules."

(Emphasis added.)

The parties then filed cross-motions for summary judgment that eventually focused on a relatively narrow question: whether, as EWEB and Seneca contended, the contract should be treated as exempt in its entirety or whether, as The Register-Guard argued, EWEB was required to separate out, and disclose, any nonexempt material within the contract--in other words, whether EWEB was required to produce a redacted version of the contract. See ORS 192.505 (" If any public record contains material which is not exempt under ORS 192.501 and 192.502, as well as material which is exempt from disclosure, the public body shall separate the exempt and nonexempt material and make the nonexempt material available for examination." ).

In its summary judgment motion, The Register-Guard explained its objection to EWEB and Seneca's " absolutist" position regarding disclosure:

" The Court should be clear about The Register-Guard's position in this case, given EWEB's response. The Register-Guard has seen nothing from the actual contract * * *. Because EWEB has chosen to respond with claims of total confidentiality, The Register-Guard is neither able (nor required) to limit its request to specific portions of the contract. The Register-Guard is at a point where it does not know about what is actually included (or not) in the contract and will not be so informed until EWEB complies with ORS 192.505. In short, specific contentions about specific parts of the contract are premature. It is EWEB's responsibility under the [267 Or.App. 557] Public Records Law (not The Register-Guard's) to narrow the records disclosure issues. EWEB has chosen not to do so."

EWEB and Seneca, meanwhile, filed their own motions for summary judgment in which they argued that ORS 192.502(26) and other exemptions applied to " the entire [c]ontract" and that " EWEB is not required to separate 'non-exempt' from 'exempt' material under ORS 192.505." (Quoting Seneca's response and cross-motion for summary judgment.) In support of their motions, they submitted affidavits from Rick Re, the CEO and Senior Vice President of Seneca, and Clay Norris, EWEB's director of its Power Resources Division. In Re's affidavit, he averred that the contract contained " trade secrets," which Seneca and EWEB had agreed to keep (and had kept) confidential, and that disclosure of the contract would harm Seneca, as well as EWEB and its customers, because, among other reasons, public disclosure of the terms of the contract would disadvantage Seneca and EWEB when they negotiated future contracts with others:

" The Contract contains confidential and proprietary information of Seneca which are trade secrets and which if disclosed would cause substantial harm to Seneca and which would place Seneca at a competitive disadvantage with its competitors and ...

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