Summarizing, I am requesting that the District Attorney order UO to release what I believe are transcripts, or very close to transcripts, taken by a university employed non-attorney, of meetings that were open to the press and public. These transcripts were used by non-attorneys at UO to prepare detailed and widely disseminated public statements about these meetings. I do not believe that attorney-client privilege applied to these transcripts in the first place, but if it did, I believe that these public disclosures constitute a waiver of that privilege by UO.
Dear Mr. Warnisher:
“copies of the notes/minutes/transcripts taken by Brandalee Davis (UO) and Kate Grado (HLGR) on laptops during the 7/22/2013 and 7/23/2013 bargaining sessions with the UO faculty union.”
“Regarding your request for “…copies of all notes/minutes/transcripts taken by Brandalee Davis (UO)…on laptops during the 7/22/2013 and 7/23/2013 bargaining sessions with the UO faculty union”, state law prohibits the University from acknowledging whether the requested record exists. (ORS 192.502(9)(b))”
“The University respectfully requests that Mr. Harbaugh’s appeal be denied on the basis that Ms. Davis’s notes are protected by the attorney-client privilege work-product doctrine.
On 7/29/13 Mr. Harbaugh made a public records request for “copies of the notes/minutes/transcripts taken by Brandalee Davis . . . on laptops during the 7/22/2013 and 7/23/2013 bargaining sessions with the UO faculty union.” While Ms. Davis is a UO employee, she takes notes at these sessions for and at the direction of Sharon Rudnick, an attorney hired by the UO to provide legal advice regarding labor relations. During these meetings, Ms. Davis acts as a representative of the lawyer (Ms. Rudnick) and the purpose of Ms. Davis taking notes during the meetings is so that Ms. Rudnick may use them to provide legal advice. Accordingly, the notes taken by Ms. Davis for Ms. Rudnick are protected under the attorney-client privilege (ORS 40.225).
Under ORS 192.502 (9), records which are protected by attorney-client privilege are ordinarily exempt from discloser. (sic) The Public Records Law does provide that in certain circumstances, some factual information that is privileged may not be exempt from disclosure. See 192.502 (9)(b). However, Mr. Harbaugh has not shown that he meets the required criteria of that section.”
“In Oregon, ORCP36.B(3) defines ‘work product’ as a lawyer’s mental impressions, conclusions, opinions or legal theories concerning a litigation matter.
United Pacific Ins. Co. v. Trachsel, 83 OrApp 401 (1987); see also FRCivP 26(b)(3).”
§ 40.280¹
Rule 511. Waiver of privilege by voluntary disclosure
A person upon whom ORS 40.225 (Rule 503. Lawyer-client privilege) to 40.295 (Rule 514. Effect on existing privileges) confer a privilege against disclosure of the confidential matter or communication waives the privilege if the person or the persons predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter or communication.
The UO administration regularly posts updates on the bargaining sessions on an official UO website at http://uo-ua.uoregon.edu/, and did so for the 7/23 and the 7/24 sessions. The UO website above states that the bargaining updates are prepared by Barbara Altmann, another UO employee. Ms Altmann does not regularly attend the bargaining sessions, and was present at these sessions for no more than 30 minutes total, if at all. So these official UO updates are the product of either the Davis or the Grado notes, or both.
Neither the first or the second response from UO’s public records office regarding this request disputed this.
The posts for these particular sessions are at http://uo-ua.uoregon.edu/2013/07/23/bargaining-summary-72213/ and http://uo-ua.uoregon.edu/2013/07/25/bargaining-summary-72313/. They are quite extensive and detailed. UO also emails these reports on bargaining sessions to about 275 employees on its labor relations email list, as their public records office revealed after 2 additional public requests.
Date: August 21, 2013, 2:44:54 AM EDT
To: PERLOW Patty <[email protected]>
Cc: Lisa Thornton <[email protected]>, Michael Gottfredson <[email protected]>, Randy Geller <[email protected]>, doug park <[email protected]>, Barbara Altmann <[email protected]>, “[email protected]” <[email protected]>
Subject: public records petition for UO administration’s bargaining notes
Date: August 21, 2013, 2:44:54 AM EDT
To: PERLOW Patty <[email protected]>
Cc: Lisa Thornton <[email protected]>, Michael Gottfredson <[email protected]>, Randy Geller <[email protected]>, doug park <[email protected]>, Barbara Altmann <[email protected]>, “[email protected]” <[email protected]>
Subject: public records petition for UO administration’s bargaining notes
8/27/2013 update: After getting all medieval on me for “posting of false and inaccurate information about bargaining” the administration’s bargaining team is now trying to keep me from posting copies of the presumably fact-based transcripts they’ve been taking at every bargaining session. The latest:
Many of my readers are on the administration’s [email protected] mailing list. Thanks to those who forward the occasional message, more welcome. As part of my efforts to get the bargaining session transcripts, I would like to argue that the transcripts are used by UO or its lawyers or PR firms to prepare public comments about the sessions. So let’s see what info they’ve been sending to whom:
From: Bill Harbaugh
Sent: Sunday, August 25, 2013 11:57 PM
To: Office of Public Records
Subject: Re: public records petition for UO administration’s bargaining notesDear Ms Thornton –
I’m putting together a response to your email below to Mr. Warnisher from the DA’s office, in which you claim an attorney-client privilege for these bargaining session transcripts.
This privilege is typically considered waived if the records involved are used by the client to discuss the matter involved in public. I’ve been told that UO uses these to prepare bargaining updates which are sent out the the [email protected] listserv, and that this listserv includes many UO faculty and administrators, and perhaps others outside UO as well.
Therefore It would be helpful to my response to your email below to Mr. Warnisher if you could provide me with
a) a complete list of the email addresses of the subscribers to this listserv, including non-UO email addresses, and
b) any messages sent to this listserv from 7/22/2013 to the present.
Today I got this response:
Dear Mr. Harbaugh-
The email [email protected] is not a listserv, and as such the University does not possess records responsive to your request for “a) a complete list of the email addresses of the subscribers to this listserv [[email protected]], including non-UO email addresses, and b) any messages sent to this listserv from 7/22/2013 to the present”.
The office considers this to be fully responsive to your request, and will now close your matter. Thank you for contacting the office with your request.
Well, that’s partly true. UO has switched its mailing lists from listserv to mailman. But there’s a very nice interface that makes it simple for the administrator to get the list of subscribers and the archives:
I wonder what excuse Hubin’s public records office will try next? Lets find out:
From: Bill Harbaugh
Subject: Re: Public Records Request 2014-PRR-065
Date: August 27, 2013 2:17:31 PM PDT
To: “Office of Public Records”Cc: WARNISHER Bill , Melissa Woo , Randy Geller , Barbara Altmann , Doug Blandy , Timothy Gleason Hi Lisa –
listserv may not be technically correct name for the software that is being used, but there certainly is an email list that is used by the administration’s bargaining team to send detailed updates on the bargaining sessions to a wide list of UO faculty, and others.
I believe these are derived from Ms Davis’s transcripts, and they are often sent out under Professor Barbara Altmann’s name.
People on the list occasionally forward copies of these to me, one example is below, the header clearly shows the [email protected] address:
FROM: Labor Relations <[email protected]>
DATE: May 10, 2013 5:20:30 PM PDT
TO: Labor Relations <[email protected]>
SUBJECT: BARGAINING UPDATE: BARGAINING SUMMARY 5/9/13
_
A Message from the University of Oregon Bargaining Team_BARGAINING SUMMARY 5/9/13
ARTICLE 12: NTTF REVIEW AND PROMOTIONI reiterate my request for a list of the subscribers or people to whom the message is sent, and copies of the messages sent, from 7/22 to the present.
Please let me know when I can expect to receive these documents.
8/23/2013: UO Changes story on bargaining transcripts
update: UO is now admitting they do have notes from the bargaining sessions, taken by a UO stenographer. They now claim that these are protected by attorney-client privilege:
8/23/2013
Dear Mr. Warnisher [Attorney with Lane County DA Alex Gardner’s office]
In his most recent public records appeal, Mr. Harbaugh requests that the University be ordered to provide him with certain notes taken by [UO employee]. The University respectfully requests that Mr. Harbaugh’s appeal be denied on the basis that [UOE’s] notes are protected by the attorney-client privilege work-product doctrine.
On 7/29/13 Mr. Harbaugh made a public records request for “copies of the notes/minutes/transcripts taken by [UOE] . . . on laptops during the 7/22/2013 and 7/23/2013 bargaining sessions with the UO faculty union.” While [UOE] is a UO employee, she takes notes at these sessions for and at the direction of Sharon Rudnick, an attorney hired by the UO to provide legal advice regarding labor relations. During these meetings, [UOE] acts as a representative of the lawyer (Ms. Rudnick) and the purpose of [UOE] taking notes during the meetings is so that Ms. Rudnick may use them to provide legal advice. Accordingly, the notes taken by [UOE] for Ms. Rudnick are protected under the attorney-client privilege (ORS 40.225).
Under ORS 192.502 (9), records which are protected by attorney-client privilege are ordinarily exempt from discloser. The Public Records Law does provide that in certain circumstances, some factual information that is privileged may not be exempt from disclosure. See 192.502 (9)(b). However, Mr. Harbaugh has not shown that he meets the required criteria of that section.
When the Office of Public Records initially denied Mr. Harbaugh’s request, it incorrectly stated that “state law prohibits the University from acknowledging whether the requested records exist.” The requested records do exist, and we do not have a basis for saying otherwise. We will make that correction with Mr. Harbaugh as well.
For the reasons outlined above, the University respectfully requests that you deny Mr. Harbaugh’s public records appeal.
Sincerely,
Lisa Thornton
Public Records Officer
University of Oregon
Office of the President
08/20/2013: I’m no lawyer, but I’ll be damned if I can figure out how state law, or the opinions in the AG’s public records manual, provide any support for the latest attempt by President Gottfredson’s general counsel Randy Geller to hide public records from the public:
Dear Mr. Harbaugh-
Regarding your request for “…copies of all notes/minutes/transcripts taken by [UO employee] (UO)…on laptops during the 7/22/2013 and 7/23/2013 bargaining sessions with the UO faculty union”, state law prohibits the University from acknowledging whether the requested record exists. (ORS 192.502(9)(b))
Additionally, the University of Oregon does not possess records responsive to your request for “…copies of all notes/minutes/transcripts taken by…Kate Grado (HLGR) on laptops during the 7/22/2013 and 7/23/2013 bargaining sessions with the UO faculty union”.
The office considers this to be fully responsive to your request, and will now close your matter. Thank you for contacting the office with your request.
Sincerely,
Lisa Thornton
Office of Public Records
University of Oregon
Office of the President
There’s a UO employed stenographer typing away on her laptop, at a speed I envy, at every public bargaining session. Three chairs to the left of Sharon Rudnick, who has mentioned her and her transcripts several times. Now this is suddenly classified? For whose benefit – other than Ms Rudnick’s? Let’s find out a little more:
Dear District Attorney Gardner:
On 7/29/2013 I made the public records request appended below, asking for
copies of the notes/minutes/transcripts taken by [UO employee] (UO) and Kate Grado (HLGR) on laptops during the 7/22/2013 and 7/23/2013 bargaining sessions with the UO faculty union.
Yesterday I received the response below from UO, stating that
Regarding your request for “…copies of all notes/minutes/transcripts taken by [UOE] (UO)…on laptops during the 7/22/2013 and 7/23/2013 bargaining sessions with the UO faculty union”, state law prohibits the University from acknowledging whether the requested record exists. (ORS 192.502(9)(b))
I have looked through the relevant ORS and its references, and the latest AG Public Records manual, and, in an effort to be thorough, the online Multnomah County DA PR opinions at http://web.multco.us/recording/public-records-research. I can’t find anything that supports this denial of the part of my public records request relating to the transcripts taken down by [UOE] .
[UOE] is a UO employee. She has been present at most if not all of the union bargaining sessions, sitting with the administration’s bargaining team, and obviously taking the discussion down in detail and by appearances almost verbatim, typing on a laptop. The UO administration’s chief negotiator, Sharon Rudnick of HLGR, has referred more than once to these transcripts, while looking at [UOE] as a record of the meetings, which are open to the public. My understanding is that taking transcripts or minutes is common practice during collective bargaining, in part in case of post-contract arguments about the meaning of articles.
No other members of the administrative bargaining team that regularly attend the bargaining sessions take notes. No one on their team took anything other than very sporadic written notes during the 7/23 and 7/24 sessions that were the subject of this public records request, and which I attended as a member of the collective bargaining unit.
The UO administration regularly posts updates on the bargaining sessions on an official UO website at http://uo-ua.uoregon.edu/, and did so for the 7/23 and the 7/24 sessions. The UO website above states that the bargaining updates are prepared by Barbara Altmann, another UO employee. Ms Altmann does not regularly attend the bargaining sessions, and was present at these sessions for no more than 30 minutes total, if at all. So these official UO updates are the product of either the [UOE] or the Grado notes, or both.
UO says in their PR response that they do not possess the Grado notes, so these posts must be based from the [UOE] transcripts. Even if they are based instead on the Grado notes, I cannot see any argument for allowing UO to deny my request for the [UOE] transcripts, much less for UO refusing to say one way or another if these transcripts exist. (Would they also argue that they can refuse to say if any documents that might refer to these transcripts exist?)
Therefore, this is a petition to Lane County DA Alex Gardner, asking him to order UO to produce the [UOE] notes, minutes, or transcripts without further delay.
Thanks for your help with this petition.
It looks as though Lisa is getting advice from Randy. Bad, as usual.
And, after a year to learn better, Gottfredson is still letting Geller make these calls.
Unbelievable, really. Will he ever pay, though? Maybe it is easier for him to live without the respect of faculty than to work through the fallout from governing transparently.
Have you looked at the statute cited? It’s got five sub-parts. Might be worth asking which sub-part Geller thinks applies.
I wouldn’t be surprised if you don’t get this. It’s not uncommon for notes taken by bargaining teams to be genuinely private.
Yup, I just added the links. I think Geller is talking out his butt. Or, more likely, he’s paid HLGR to do the research for him, and Rudnick knows those transcripts will make her sound even worse than my live-blogging does.
Doesn’t the presence of 3rd parties nullify the attorney-client privilege here?
you got a cite I can use?
Attorney work product is the exemption Geller claims, not attorney/client.
The administration posts commentary on the sessions on the internet. They also email spam updates about them to administrators and faculty not in the BU. Wasn’t there even a Dietz story in the RG where Blandy or Gleason was interviewed? This will all make it very hard for them to now argue these notes are privileged. That’s why they didn’t try it first time around. There’s a 7 part test for this around here somewhere, I’ll find it and email it to you.
Note that neither Geller nor Park was willing to put their name to this nonsense.
http://www.osbar.org/publications/bulletin/03jan/barcounsel.html:
In Oregon, ORCP36.B(3) defines ‘work product’ as a lawyer’s mental impressions, conclusions, opinions or legal theories concerning a litigation matter. United Pacific Ins. Co. v. Trachsel, 83 OrApp 401 (1987); see also FRCivP 26(b)(3). Except on a showing of undue hardship, the ‘work product doctrine’ or ‘privilege,’ as it is often called, protects the information from discovery by an opposing party in litigation.
Same anon as above, I’ll try and use Madison as a name, more to come.
The DA should have the documents by now, see below. And UO is still claiming they are notes? Sounds like a long stretch by the definition below.
http://www.oregonlaws.org/ors/192.450
(1) Subject to ORS 192.480 (Procedure to review denial by elected official of right to inspect public records) and subsection (4) of this section, any person denied the right to inspect or to receive a copy of any public record of a state agency may petition the Attorney General to review the public record to determine if it may be withheld from public inspection. Except as provided in subsection (5) of this section, the burden is on the agency to sustain its action. Except as provided in subsection (5) of this section, the Attorney General shall issue an order denying or granting the petition, or denying it in part and granting it in part, within seven days from the day the Attorney General receives the petition.
You’ve got copies of the website you refer to in the post, right?
§ 40.280¹
Rule 511. Waiver of privilege by voluntary disclosure
A person upon whom ORS 40.225 (Rule 503. Lawyer-client privilege) to 40.295 (Rule 514. Effect on existing privileges) confer a privilege against disclosure of the confidential matter or communication waives the privilege if the person or the persons predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter or communication.
2005 Schrunk order that the PDC must provide legal records to the Oregonian, excepting only emails with attorney opinions, and confidential interview transcripts:
http://mcda.us/wp-content/files_mf/13516426870519.pdf
but check the 2007 ORS amendments.
http://www.oregonlaws.org/ors/192.502
§ 192.502¹
Other public records exempt from disclosure
The following public records are exempt from disclosure under ORS 192.410 (Definitions for ORS 192.410 to 192.505) to 192.505 (Exempt and nonexempt public record to be separated):
…
9)(a) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential or privileged under Oregon law.
(b) Subject to ORS 192.423 (Condensation of public record subject to disclosure), paragraph (a) of this subsection does not apply to factual information compiled in a public record when:
(A) The basis for the claim of exemption is ORS 40.225 (Rule 503. Lawyer-client privilege);
(B) The factual information is not prohibited from disclosure under any applicable state or federal law, regulation or court order and is not otherwise exempt from disclosure under ORS 192.410 (Definitions for ORS 192.410 to 192.505) to 192.505 (Exempt and nonexempt public record to be separated);
(C) The factual information was compiled by or at the direction of an attorney as part of an investigation on behalf of the public body in response to information of possible wrongdoing by the public body;
(D) The factual information was not compiled in preparation for litigation, arbitration or an administrative proceeding that was reasonably likely to be initiated or that has been initiated by or against the public body; and
(E) The holder of the privilege under ORS 40.225 (Rule 503. Lawyer-client privilege) has made or authorized a public statement characterizing or partially disclosing the factual information compiled by or at the attorneys direction.
From http://www.doj.state.or.us/public_records/manual/pages/public_records.aspx
I.E.4.d.(9)(b) Attorney-Client Privilege
Records which are protected by attorney-client privilege, ORS 40.225, are also ordinarily exempt from disclosure under the Public Records Law. For example, we have concluded that specified records in an Oregon State Bar disciplinary proceeding were covered under the attorney-client privilege and, therefore, were exempt from disclosure under ORS 192.502(9).[240] We reached the same conclusion concerning a request for memoranda sent by the Public Utility Commission staff to its legal counsel, and vice versa, containing confidential communications made for the purpose of facilitating counsel’s rendition of professional services to staff in a pending contested case.[241] Communications between an agency’s representatives and representatives of its legal counsel may also fall within the attorney-client privilege.[242]
However, the Public Records Law describes a specific set of circumstances in which the attorney-client privilege does not exempt information from disclosure. Under that paragraph, privileged information is not exempt from disclosure if all of the following criteria are present:
It is factual information that is
not otherwise exempt from disclosure
not compiled in preparation for litigation, arbitration or an administrative proceeding likely to be initiated or actually initiated
Compiled by or at the direction of an attorney
As part of an investigation on behalf of a public body
In response to “information of possible wrongdoing by the public body” and
The holder of the privilege has “made or authorized a public statement characterizing or partially disclosing the factual information.”[243]
Usually, if a record is not exempt from disclosure, it must be made available for the requester’s inspection. But ORS 192.423 provides another option with regard to the information described in ORS 192.502(9)(b). When a public record is subject to disclosure under that provision, the public body may elect instead to “prepare and release a condensation from the record of the significant facts.”[244]
The statute provides no further guidance regarding the contents or format of the “condensation.” But if the public body prepares and releases a condensation in lieu of disclosing the record, the requester may nevertheless petition for review of the denial of the opportunity to inspect or receive a copy of the underlying records in accordance with the procedures described in Section I.G of this manual. In such a review, the reviewing body shall, “in addition to reviewing the records to which access was denied, compare those records to the condensation to determine whether the condensation adequately describes the significant facts contained in the records.”[245]
Release of a factual condensation does not waive the attorney-client privilege.[246] Nor is the privilege waived with regard to “a communication ordered to be disclosed under ORS 192.410 to 192.505.”[247] (Emphasis added). The statutes do not expressly address the status of the privilege with regard to the records themselves if they are disclosed voluntarily based on the public body’s assessment of the application of new ORS 192.503(9)(b). But releasing complete records where a public agency could instead choose to release a condensation of the records may be a “voluntary disclosure” of the materials within the meaning of ORS 40.280 (OEC 511). For that reason, we recommend operating under the assumption that releasing lawyer-client privileged records in their entirety operates as a waiver of the privilege.
Tough hurdle. So, are these really attorney-client records?
ORS 40.225
40.225 Rule 503. Lawyer-client privilege. (1) As used in this section, unless the context requires otherwise:
(a) “Client” means a person, public officer, corporation, association or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer.
(b) “Confidential communication” means a communication not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.
(c) “Lawyer” means a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.
(d) “Representative of the client” means:
(A) A principal, an officer or a director of the client; or
(B) A person who has authority to obtain professional legal services, or to act on legal advice rendered, on behalf of the client, or a person who, for the purpose of effectuating legal representation for the client, makes or receives a confidential communication while acting in the person’s scope of employment for the client.
(e) “Representative of the lawyer” means one employed to assist the lawyer in the rendition of professional legal services, but does not include a physician making a physical or mental examination under ORCP 44.
(2) A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:
(a) Between the client or the client’s representative and the client’s lawyer or a representative of the lawyer;
(b) Between the client’s lawyer and the lawyer’s representative;
(c) By the client or the client’s lawyer to a lawyer representing another in a matter of common interest;
(d) Between representatives of the client or between the client and a representative of the client; or
(e) Between lawyers representing the client.
(3) The privilege created by this section may be claimed by the client, a guardian or conservator of the client, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer or the lawyer’s representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client.
(4) There is no privilege under this section:
(a) If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;
(b) As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction;
(c) As to a communication relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer;
(d) As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or
(e) As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients.
(5) Notwithstanding ORS 40.280, a privilege is maintained under this section for a communication made to the office of public defense services established under ORS 151.216 for the purpose of seeking preauthorization for or payment of nonroutine fees or expenses under ORS 135.055.
(6) Notwithstanding subsection (4)(c) of this section and ORS 40.280, a privilege is maintained under this section for a communication that is made to the office of public defense services established under ORS 151.216 for the purpose of making, or providing information regarding, a complaint against a lawyer providing public defense services.
(7) Notwithstanding ORS 40.280, a privilege is maintained under this section for a communication ordered to be disclosed under ORS 192.410 to 192.505. [1981 c.892 §32; 1987 c.680 §1; 2005 c.356 §1; 2005 c.358 §1; 2007 c.513 §3; 2009 c.516 §1]
Which all sounds bad for you – you’ve should argue
a) 40.280 Rule 511. Waiver of privilege by voluntary disclosure, and
b) These are simply transcripts or minutes of meetings that were open to the public under Oregon labor law, and that UO’s belated argument about them being done at Rudnick’s direction somehow magically giving them the protection of attorney-client privilege is a sham which, if accepted by the DA, would make it impossible to compel any agency to ever release anything document to the public.
http://mcda.us/wp-content/files_mf/13516426061203.pdf
failed attempt to claim privilege for records
listserv has been the generic term for a long time. they are so sneaky.
Thank you UOM for your continued knuckle-busting investigations, you do this place a great service.
If it goes to court, the burden of proof will be on Geller:
http://www.publications.ojd.state.or.us/docs/A137297.pdf