SPRAGUE RIVER CATTLE CO v. STATE (2026)

This original proceeding in mandamus presents an unresolved issue regarding the interplay between the rules governing pretrial discovery in a civil case and Oregon's public records law. The trial court ordered relators ¹ to produce attorney-client privileged documents that were more than 25 years old, because those documents may be subject to disclosure under the public records law. Relators sought mandamus relief, contending that the discovery order violates ORCP 36 B—which limits the scope of discovery to information that is not privileged—and the attorney-client privilege in OEC 503. We issued an alternative writ and, after the trial court adhered to its ruling, set the case for briefing and argument. We now conclude that the trial court erred in compelling relators to produce the documents in discovery.

As we will explain, the public records law and discovery rules provide two distinct and independent ways to obtain records from a public body. A party that requests discovery under the rules of civil procedure in connection with pending civil litigation with a public body—and that does not request disclosure under the public records law—is bound by the procedural requirements and limitations that apply to discovery in civil litigation. The legislature did not intend to authorize courts to circumvent the public records law disclosure procedures by ordering the production of privileged records in discovery based on a determination that the records may be subject to disclosure under the public records law.

Thus, the trial court here erred when it compelled production of privileged records in discovery. Accordingly, we issue a peremptory writ of mandamus directing the trial court to vacate its discovery order.

I. BACKGROUND

We take the procedural and undisputed facts from the trial court record. The plaintiff in this civil action, Sprague River Cattle Company (SRCC), alleged in its complaint that OWRD unconstitutionally took SRCC's water rights without compensation. According to SRCC, the taking occurred as part of OWRD's adjudication of water rights in the Klamath Basin. OWRD initiated that adjudication in 1975 pursuant to ORS chapter 539 and completed the administrative phase in 2014.² Many parties filed exceptions to OWRD's administrative determinations in Klamath County Circuit Court; that action is currently pending.³

This case is separate from—but related to—the water rights adjudication proceeding that is pending in Klamath County Circuit Court. In its complaint in this case, SRCC alleges that it owns land in Klamath County and holds water rights in the Klamath Basin appurtenant to its property. SRCC further alleges that OWRD's administrative quantification of the Klamath Tribes’ instream water rights—which OWRD determined have priority over SRCC's rights—and related orders deprived SRCC of the benefit of its water rights. According to SRCC, that amounted to an unconstitutional taking of SRCC's water rights without compensation.

After filing its complaint, SRCC served OWRD with requests for production of documents under ORCP 43.⁴ Among other things, SRCC sought documents relating to the water rights claimed by the Klamath Tribes and OWRD's determination of the tribal claims. OWRD produced thousands of documents in response—78,189 pages as of June 5, 2025—but declined to produce other documents on the grounds of attorney-client privilege. SRCC filed a motion to compel, and the trial court ordered OWRD to produce a privilege log describing the documents that it had withheld based on a privilege claim. SRCC then filed a motion to compel production of attorney-client privileged documents that were more than 25 years old, contending that those documents were subject to disclosure under the public records law and, therefore, should be produced in discovery. SRCC did not seek disclosure of those records under the public records law, choosing instead to seek production of those records through the discovery process. About 446 documents listed on OWRD's privilege log are in dispute.

After hearing the arguments of the parties and considering their supplemental briefing, the trial court granted SRCC's motion to compel, stating in its oral ruling that it saw a “conflict” between the rules of discovery and the public records law, and that it was ordering production “in the interest of judicial economy” without deciding whether those documents would be admissible in evidence in the pending litigation. The trial court's written order provides as follows:

“Defendants shall produce the 446 assertedly privileged documents identified by plaintiff in the spreadsheet [counsel] transmitted to them on November 13, 2025. Approximately 63 of those documents do not bear a date on the privilege log, and this order shall not apply to any of the documents, undated in the privilege log, which defendants represent are less than 25 years old.”

The order further states that OWRD has “not waived the right to contend that the documents are privileged, a question to be determined in further proceedings.” Production of the documents was subject to a protective order “limiting their use to this litigation and prohibiting the distribution of confidential materials to parties not authorized by the protective order.”

OWRD then filed a mandamus petition in this court, arguing that the trial court erred in ordering OWRD to produce in discovery documents that are protected by the attorney-client privilege even though those documents might be subject to disclosure under the public records law. This court issued an alternative writ, and the trial court adhered to its order compelling production.

II. ANALYSIS

Mandamus is a remedy to correct errors of law for which there is no other “plain, speedy and adequate remedy in the ordinary course of the law.” ORS 34.110. We have recognized that a trial court's decision ordering the production of privileged information “is subject to review in mandamus precisely because ordinary appeal provides an inadequate remedy.” Crimson Trace Corp. v. Davis Wright Tremaine LLP, 355 Or 476, 485, 326 P3d 1181 (2014). That is because, “once a privileged communication has been disclosed, the harm cannot be undone.” Gollersrud v. LPMC, LLC, 371 Or 739, 744, 541 P3d 864 (2023) (citations omitted). Thus, mandamus “ ‘is an appropriate remedy when a discovery order erroneously requires disclosure of a privileged communication.’ ” Crimson Trace Corp., 355 Or at 485 (quoting State ex rel OHSU v. Haas, 325 Or 492, 497, 942 P2d 261 (1997)).

To determine whether the trial court erroneously compelled discovery of privileged documents in this case, we must interpret and apply the discovery rules in ORCP 36 B, the attorney-client privilege codified in OEC 503, and the applicable provisions of the public records law in ORS chapter 192, using our familiar methodology focusing on text, context, and any relevant history. Gollersrud, 371 Or at 745; Crimson Trace Corp., 355 Or at 485; State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). We begin with an overview of the applicable statutes and rules and our decision in City of Portland v. Bartlett, 369 Or 606, 509 P3d 99 (2022), which discussed the interplay between the attorney-client privilege and the public records law in a different context.

A. ORCP 36 B and the Attorney-Client Privilege

ORCP 36 B defines the scope of discovery in civil cases. The rule provides, in pertinent part, that “parties may inquire regarding any matter, not privileged, that is relevant to the claim or defense of the party seeking discovery or to the claim or defense of any other party[.]” ORCP 36 B(1) (emphasis added). Privileges are listed, defined, and, in some instances, limited in OEC 503 to OEC 514.

The attorney-client privilege set out in OEC 503 “is one of the oldest and most broadly recognized evidentiary privileges.” Gollersrud, 371 Or at 744. The privilege seeks to “ ‘encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.’ ” Haas, 325 Or at 500 (quoting Upjohn Co. v. United States, 449 US 383, 389, 101 S Ct 677, 66 L Ed. 2d 584 (1981)). Although the privilege “is expansive, it is not absolute[.]” Gollersrud, 371 Or at 744.

OEC 503 “establishes threshold requirements for the privilege, and OEC 511 allows for waiver of any evidentiary privilege, including the attorney-client privilege.” Gollersrud, 371 Or at 744. In general, an assertion of the attorney-client privilege in Oregon requires “(1) a communication between classes of persons described in OEC 503(2) (a) to (e); (2) that the communication be made for the purpose of facilitating the rendition of professional legal services to the client; and (3) that the communication be ‘confidential’ within the meaning of OEC 503(1)(b)[.]” Id. at 745.

Although OEC 503 is a rule of evidence, the rule is not limited to determining the admissibility of privileged information in evidence. OEC 503(2) also prevents the disclosure of information that is covered by the privilege. That rule provides, in part:

“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[.]”

OEC 503(2). A “confidential communication” is

“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.”

OEC 503(1)(b).

The attorney-client privilege can be waived as provided in OEC 511. That rule provides, in part, that a person

“upon whom [OEC 503 to 514] confer a privilege * * * waives the privilege if the person or the person's predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter or communication.”

OEC 511.

The legislature has amended the privilege rules on two occasions to address how those rules interact with the public records law. First, in 2007, the legislature amended OEC 503 to add a new subsection—OEC 503(7). See Or. Laws 2007, ch. 513, § 3. That subsection states:

“Notwithstanding [OEC 511], a privilege is maintained under this section for a communication ordered to be disclosed under ORS 192.311 to 192.478 [the public records law].”5

OEC 503(7). Then, in 2017, the legislature amended OEC 511 to add the following provision:

“Voluntary disclosure does not occur when a public body, as defined in ORS 192.410, discloses information or records in response to a written request for public records made under ORS 192.410 to 192.505.”

Or. Laws 2017, ch. 456, § 9. The significance of those legislative changes to OEC 503 and OEC 511 to the issue presented here is discussed more fully later in this opinion.

B. The Public Records Law

The statutory right of Oregonians to inspect public documents “goes back at least to 1862[.]” Bartlett, 369 Or at 610 (citing General Laws of Oregon, Civ Code, ch. VIII, title V, § 707, p. 326 (Deady 1845-1864)). The public records law “took its current form in 1973[.]” Id. (citing Or. Laws 1973, ch. 794, § 3). The law provides that “[e]very person has a right to inspect any public record of a public body in this state, except as otherwise expressly provided by ORS 192.338, 192.345 and 192.355.” ORS 192.314(1). Under the public records law, “ ‘disclosure is the rule. Exemptions from disclosure are to be narrowly construed.’ ” Bartlett, 369 Or at 611 (quoting Guard Publishing Co. v. Lane County School Dist., 310 Or 32, 37, 791 P2d 854 (1990)).

The public records law sets out detailed procedures for requesting and obtaining public records. When “a person” makes a “written request” for either a copy of a public record or a reasonable opportunity to inspect or copy the record, ORS 192.324(1), the custodian of those records is required “within five business days after receiving the request [to] acknowledge receipt of the request or complete the public body's response to the request.” ORS 192.324(2). The public body “may establish fees reasonably calculated to reimburse the public body for [its] actual cost of making public records available[.]” ORS 192.324(4)(a). In general, a public body is required to complete its response “as soon as practicable and without unreasonable delay.” ORS 192.329(1). The response may assert “any exemptions from disclosure that the public body believes apply to any requested records[.]” ORS 192.329(2)(b). If the public body has informed the requester of a fee, the public body's obligation to complete its response to the request “is suspended” until the requester pays the fee or it is waived. ORS 192.329(3)(a). “As soon as reasonably possible but not later than 10 business days” after acknowledging receipt of the request, the public body is required to either complete its response or provide a written statement that it “is still processing the request” and give a reasonable estimated date by which the public body expects to complete the response. ORS 192.329(5).

Some public records are “conditionally exempt” from disclosure under the public records law, which means that the records are exempt “unless the public interest requires disclosure in the particular instance.” ORS 192.345. Other public records are unconditionally exempt from disclosure. ORS 192.355. One category of unconditionally exempt records is relevant to this case. That exemption applies to “[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential or privileged under Oregon law.” ORS 192.355(9)(a).

In 1979, the legislature amended the public records law to add the provision that is central to the parties’ dispute in this case. Or. Laws 1979, ch. 301, § 2. That provision—adopted as former ORS 192.495 (1979), renumbered as ORS 192.390 (2015)—now provides:

“Notwithstanding ORS 192.338, 192.345 and 192.355, and except as otherwise provided in ORS 192.398, public records that are more than 25 years old shall be available for inspection.”

ORS 192.390.

The public records law also includes detailed procedures to obtain public records that have been withheld from public inspection based on a claimed exemption or for any other reason. A person who is denied the right to inspect or 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.” ORS 192.411(1).⁶ In general, “the burden is on the agency to sustain its action,” and the Attorney General is required to issue an order resolving the petition “within seven days from the day the Attorney General receives the petition.” Id. The Attorney General's decision is subject to review in circuit court. ORS 192.411(2). In a circuit court action, “the burden is on the public body” to sustain its decision. ORS 192.431(1). If a person seeking disclosure of public records prevails in court, the person “shall be awarded costs and disbursements and reasonable attorney fees at trial and on appeal.” ORS 192.431(3).

A 1999 amendment to the public records law, Or. Laws 1999, ch. 574, § 1—now codified at ORS 192.314(2)(a)⁷ —addresses one aspect of the relationship between the public records law and civil litigation. Under that provision, a party in civil litigation with a public body—or who has filed a tort claim notice pursuant to ORS 30.275—who seeks disclosure under the public records law of records that relate to the litigation or the notice, must submit the public records request to “the attorney for the public body.” ORS 192.314(2)(a). The attorney for a state agency for purposes of that statute is the Oregon Attorney General. ORS 192.314(2)(b).

C. Our Decision in Bartlett

As noted, the parties’ dispute in this case is centered on ORS 192.390, which provides that, “[n]otwithstanding” certain exemptions listed in the public records law, “public records that are more than 25 years old shall be available for inspection.” The interplay between that provision and the attorney-client privilege was the focus of our decision in Bartlett, but not in the context of a discovery request in pending civil litigation, as in this case.

The defendant in Bartlett submitted a written public records request to the City of Portland, requesting copies of three city attorney opinions and one legal memorandum. 369 Or at 608. The parties agreed that those documents were “public records,” “within the scope of the attorney-client privilege,” and “more than 25 years old.” Id. The city declined to release those records, arguing that they were exempt from disclosure under the public records law because of the attorney-client privilege. Id. Pursuant to the statutory procedure for review of the city's decision in ORS 192.415, the defendant petitioned the district attorney to order release of the records, contending that ORS 192.390 required their release, notwithstanding the attorney-client privilege. Id. at 608-09. The district attorney ordered the city to release the records, and the city sought review of that decision in circuit court. Id. at 609.

That court agreed with the city and held that the public records law did not require disclosure of the records. Id. The Court of Appeals reversed in an en banc, split decision, and this court allowed review “to consider the relationship between” the public records law and the attorney-client privilege. Id. at 608. After reviewing the text, context, and legislative history of the pertinent provisions of the public records law and the Oregon Evidence Code, this court concluded that “the communications between the city attorney and city officials * * * are not exempt from disclosure under ORS 192.390 on the ground that they are subject to the attorney-client privilege.” Id. at 626.

In reaching that conclusion, we first noted the “catchall exemption” in ORS 192.355(9)(a)⁸ —which exempts from disclosure public records that are “made confidential or privileged under Oregon law”—and the fact that the records at issue “were exempt from disclosure at the time they were prepared.” Id. at 612. But we noted that the text of ORS 192.390—first enacted in 1979—“mandates the disclosure” of public records that are more than 25 years old “notwithstanding” the exemption for privileged records. Id. (brackets omitted). We concluded that the text and structure of ORS 192.390 “strongly suggest that there is no general exemption for public records covered by the attorney-client privilege that are more than 25 years old.” Id.

We then turned to the city's contentions, many of which were “founded on the importance of the attorney-client privilege[.]” Id. at 613. We agreed that the privilege “is a foundational principle of our legal system,” but observed that the details of the application of the privilege were “not in play” in that case, because “[e]veryone agrees that the records are privileged.” Id. Because the attorney-client privilege “restricts the disclosure of ‘confidential communications,’ OEC 503(2), privileged public records come within” the “catchall” exemption in ORS 192.355(9)(a). Id. at 614. But, as we explained, “that also means that, after 25 years, they are subject to disclosure ‘notwithstanding’ that exemption, unless other grounds for an exemption exist.” Id. (brackets omitted).

The city responded to that textual argument by asserting that “the legislature cannot have intended the ‘notwithstanding’ clause to sweep so broadly as to require the disclosure after 25 years of the ‘confidential or privileged’ records referred to in ORS 192.355(9)(a).” Id. (brackets omitted). We rejected that assertion, noting—as the Court of Appeals had noted—that the city's argument would require the court “to entirely rewrite the ‘notwithstanding clause’ by inserting substantial additional text.” Id. We then turned to the city's arguments “based on related statutes and context[.]” Id. at 615.

The city first argued that the disclosure of records more than 25 years old does not apply to records that are subject to the attorney-client privilege, “because that privilege is not a creation of, and it is not codified in, any of the statutes enumerated in ORS 192.390 or elsewhere in the [p]ublic [r]ecords [l]aw.” Id. (internal quotation marks omitted). We rejected that argument, noting that “nothing in the public records law suggests that the disclosure requirement is so limited.” Id. Rather, the statutory text “provides that records subject to the attorney-client privilege are exempt from disclosure when created because, under ORS 192.355(9)(a), they are ‘confidential or privileged under Oregon law.’ After 25 years, however, disclosure is required ‘notwithstanding’ that exemption.” Id. (brackets omitted).

We then turned to the city's contention that the legislature, when it enacted ORS 192.390, “gave no thought at all to maintaining the confidentiality of sensitive public records.” Id. at 617. We noted that ORS 192.390, “while requiring disclosure ‘notwithstanding’ certain exemption provisions”—including ORS 192.355—also carves out additional exemptions “as * * * provided in ORS 192.398.” Id. at 616 (brackets omitted). Among other things, ORS 192.398 provides that certain medical records and records sealed in compliance with a statute are exempt from disclosure for 75 years.⁹ The exclusion of those records from the disclosure requirement after 25 years in ORS 192.390 “refute[d] the city's claim that ORS 192.390 applies only to exemptions created in or codified by the public records law” and its contention that the legislature had not otherwise considered protecting the confidentiality of sensitive public records. Bartlett, 369 Or at 617. Rather, as we explained, the exemptions listed in ORS 192.398 showed that “the legislature knew how to—and did—protect such records from disclosure. But, for whatever reason, the legislature did not provide a similar exception for public records that are covered by the attorney-client privilege.” Id.

Finally, we rejected the city's arguments “based on the independent significance of OEC 503 and the importance of the attorney-client privilege.” Id. Those arguments, we explained, “conflate the concepts of a ‘privilege’ applicable to attorney-client public records and an ‘exemption’ from disclosure under the public records law[.]” Id. at 618. In other words, the city's argument “seem[ed] to contend that, if a record is ‘privileged’ under OEC 503, then it also must be ‘exempt’ under the public records law.” Id. But, we explained, “those statutes operate independently, promote different goals, and use different terms.” Id. The legislature recognized that difference—highlighted in OEC 503(7)—which “makes clear that, although the disclosure of a communication may be required because the communication is not exempt from disclosure under the public records law, the communication nevertheless ‘maintains’ its ‘privileged’ character for evidentiary purposes under the Oregon Evidence Code.” Id. (brackets omitted).

We also cited OEC 503(7) in addressing the city's argument that “the attorney-client privilege and the disclosure requirement of ORS 192.390 are in unreconcilable conflict[.]” Id. We explained that OEC 503(7) “shows that the legislature did not view the attorney-client privilege and the disclosure requirements of the public records law as inconsistent. Rather, the legislature gave effect to both statutes.” Id. It did so by recognizing that “the public records law may require disclosing some communications subject to the attorney-client privilege * * * but nevertheless protects the evidentiary privilege for such communications.” Id. We noted the parties’ agreement that “the documents at issue were privileged at the time they were created and are privileged now.” Id. at 619. But, we concluded, the text of OEC 503(7) acknowledges “that privileged documents will sometimes be subject to disclosure under the public records law, and for that reason, provides that the evidentiary privilege will continue to apply to such communications, notwithstanding their disclosure.” Id. at 620.

Turning to the legislative history, we recognized that the legislative history of ORS 192.390 “does not indicate that the legislature specifically discussed whether the disclosure requirement would apply to records that are attorney-client communications and are more than 25 years old.” Id. at 622. Nor did the legislative history of OEC 503, including the addition of OEC 503(7), “affirmatively show that the legislature intended to create an exception to the attorney-client privilege for such public records.” Id. Rather, the legislative history was “essentially silent on the specific issue” presented in that case. Id. Under those circumstances, we concluded from the text and context of ORS 192.390 and OEC 503 that “the legislature understood that the public records law could require the disclosure of communications subject to the attorney-client privilege.” Id.

D. Application to This Case

This case presents the flip side of the issue that we decided in Bartlett. Our decision in Bartlett was based on the requirements of the public records law and did not specifically address discovery in pending civil litigation. We concluded in that context that the legislature's determination that public records that were more than 25 years old “shall be available for inspection,” ORS 192.390, meant that a public body could be required to disclose “communications subject to the attorney-client privilege” in response to a written request for those documents under the public records law. Bartlett, 369 Or at 622. The issue in this case is whether a court can compel—as part of the discovery process in pending civil litigation—disclosure of documents covered by the attorney-client privilege that are more than 25 years old, because those records may be subject to disclosure through a request under the public records law.

OWRD contends that the 446 privileged records at issue are not discoverable in civil litigation under ORCP 36 B and ORCP 43 A. OWRD acknowledges that those records may not be exempt from disclosure under the public records law, but it points out that SRCC has not sought disclosure under the public records law, and it contends that SRCC may not circumvent the public records law procedures by seeking discovery in this litigation. SRCC responds that, because the records are not exempt from disclosure under the public records law, they are not confidential and, therefore, are subject to discovery regardless of whether the attorney-client privilege applies as an evidentiary matter.¹⁰ SRCC further contends that it should not be required to follow the public records law procedures for disclosure—which SRCC suggests could delay this litigation “potentially for years”—because the court can order disclosure as part of the ordinary discovery process in civil litigation. As we will explain, we agree with OWRD.

SRCC's first argument—that the records are not “confidential” and thus are discoverable because they are subject to disclosure under ORS 192.390—is refuted by ORCP 36 B, ORCP 43 A(1), OEC 503, OEC 511, and our decision in Bartlett. ORCP 36 B limits the scope of discovery to matters that are “not privileged,” and ORCP 43 A(1) limits document discovery to documents “that constitute or contain matters within the scope of [ORCP] 36 B[.]” A matter is “not privileged”—and thus, is within the scope of permissible discovery under ORCP 36 B—if, as relevant to this case, the matter is not covered by the attorney-client privilege under OEC 503.

The attorney-client privilege applies to a “confidential communication,” which is defined to mean a communication that is “not intended to be disclosed to third persons[.]” OEC 503(1)(b). Determining whether a communication was “not intended to be disclosed” requires a court to examine the intent when the communication was made. A subsequent disclosure of a communication that was intended to be confidential when it was made can waive the privilege under OEC 511, but such a disclosure does not mean that the communication was not intended to be confidential—and thus was not privileged—when the communication was made.

Moreover, as a matter of statutory interpretation—and as stated in the 2007 amendment to OEC 503 and the 2017 amendment to OEC 511—an order requiring disclosure of a privileged record under the public records law does not waive the privilege. OEC 503(7), as amended in 2007, provides that the privilege “is maintained” even if the communication is “ordered to be disclosed” under the public records law. OEC 503(7).¹¹ The 2017 amendment to OEC 511 provides that a “[v]oluntary disclosure” of a privileged record—which ordinarily “waives” the privilege under OEC 511—does not occur when a public body “discloses information or records in response to a written request for public records” under the public records law. OEC 511.

Thus, those two rules together generally mean that the privilege is maintained if a public record is “ordered” to be disclosed under the public records law, and the privilege is not waived if a public body discloses the record in response to a public records request. It would make no sense to say that (1) the privilege is maintained if the Attorney General, a district attorney, or a court ordered disclosure under the public records law, and (2) the privilege is also maintained— that is, it is not waived—if a public body voluntarily discloses the information in response to a public records request, but (3) the privilege is not maintained for discovery purposes if the public body is neither ordered nor requested to disclose the information under the public records law.

We said as much in Bartlett. There, we confirmed that OEC 503(7) meant that, “although the disclosure of a communication may be required because the communication is not exempt from disclosure under the public records law, the communication nevertheless ‘maintains’ its ‘privileged’ character for evidentiary purposes under the Oregon Evidence Code.” Bartlett, 369 Or at 618 (emphasis added; brackets omitted). And if a record's privileged character is maintained “for evidentiary purposes” under the Oregon Evidence Code, then it is also maintained for discovery purposes, because (1) a client can “prevent” its disclosure under OEC 503(2); and (2) ORCP 36 B expressly limits discovery to any relevant matter that is not privileged.

Accordingly, we conclude that records of attorney-client communications that were intended to be confidential when made—and thus are protected by the attorney-client privilege—remain privileged for purposes of ORCP 36 B's limit on discovery even if the records may not be exempt from disclosure under the public records law.¹² The remaining question is whether a court can avoid the public record law disclosure procedures and compel disclosure under the Oregon Rules of Civil Procedure in the interest of judicial economy, on the grounds that the records may be subject to disclosure under the public records law.

As we will explain, the answer to that question is twofold. In general, a party in litigation with a public body can serve requests for production of documents under ORCP 43 and obtain discovery relevant to the litigation pursuant to the rules of civil procedure without serving a “written request” for public records under ORS 192.324(1) or otherwise complying with the public records law procedures for disclosure.¹³ But if the party seeks discovery from the public body under the rules of civil procedure and not under the public records law, the party is bound by the procedural requirements and limitations that apply to discovery in civil litigation, including the limit on the scope of discovery provided in ORCP 36 B.

That means, as relevant here, that a party seeking discovery under the rules of civil procedure is not entitled to obtain privileged records through those procedures, because ORCP 36 B expressly limits the scope of discovery to relevant matters that are not privileged. That conclusion is supported by our analysis of the rules of civil procedure, the evidence code, and the public records law in Bartlett.

In Bartlett, we explained that the rules of civil procedure and the evidence code “operate independently” from the public records law, and that those two ways of seeking records from a public body “promote different goals, and use different terms.” 369 Or at 618. We further explained that OEC 503(7) shows that the legislature “did not view the attorney-client privilege and the disclosure requirements of the public records law as inconsistent.” Id. Instead, the legislature “gave effect to both statutes.” Id. It did so by recognizing that “the public records law may require disclosing some communications subject to the attorney-client privilege * * * but nevertheless protects the evidentiary privilege for such communications.” Id.

As we have explained, “any person” can request and obtain public records under the public records law, but only parties in civil litigation with a public body can obtain the public body's records through a discovery request under the rules of civil procedure. The rules of civil procedure and the public records law define two distinct pathways—applicable to potentially overlapping, but different categories of people—for obtaining records from a public body. Those pathways were designed to operate independently, promoting different goals and using different terms. Although the trial court concluded that the provisions were in conflict, the legislature did not intend for those distinct pathways to be inconsistent. By giving effect to both pathways for obtaining public records, the legislature intended for parties seeking disclosure under one pathway to comply with the limits and procedural requirements that apply to that pathway. There is no evidence that the legislature, in crafting two statutory schemes that were designed to operate independently, intended to allow a party in litigation with a public body to combine the disclosure requirements in the public records law with the discovery procedures in the rules of civil procedure, thereby circumventing the comprehensive and detailed disclosure procedures specified in the public records law that we have described.

The limited legislative history that is relevant here supports that conclusion. As we noted in Bartlett, the legislative history was “essentially silent” on the issue in that case, 369 Or at 622, and we found little in the legislative history that is relevant to the issue that is presented here. However, as noted, the legislature amended the public records law in 1999 to require a party in litigation with a public body to notify the attorney for the public body if the party sought to obtain public records that relate to the litigation through the public records law. ORS 192.314(2)(a). At one committee hearing addressing that proposed amendment—SB 396 (1999)—Representative Lane Shetterly noted that a party in litigation with a public body had “two avenues” to obtain public records: it could seek the records through the public records law procedures, or it could “go to court and seek an order through [the] discovery” procedures. Tape Recording, House Judiciary Civil Law Committee, SB 396, Mar. 17, 1999, Tape 69, Side A (comments of Rep. Lane Shetterly).

That comment seems to confirm what is apparent to us from the text and structure of these statutory schemes: A party in litigation with a public body has “two avenues” to obtain relevant records from the public body, one through the rules of civil procedure, and one through the public records law. Because those avenues were intended to operate independently and promote different goals, we do not believe that the legislature intended to allow a party in litigation to combine the two processes, allowing the party to use the rules of civil procedure to obtain through discovery records that are not discoverable under ORCP 36 B, on the grounds that the records are more than 25 years old and thus subject to disclosure under the public records law. Rather, if a party in litigation with a public body wants to take advantage of the disclosures allowed by the public records law—but not allowed by ORCP 36 B—it must follow the public records law procedures.

It follows that the trial court erred when it granted SRCC's motion to compel discovery of privileged records in this litigation, even though the records may be subject to disclosure under the public records law. If SRCC seeks disclosure under the public records law, it must comply with that law's disclosure procedures.¹⁴

A peremptory writ of mandamus shall issue.

FOOTNOTES

1.   Relators — defendants below — are the State of Oregon; the Oregon Water Resources Department (OWRD); and, originally, Tom Byler, named in his official capacity as Director of the Oregon Water Resources Department. Byler has retired; OWRD's current director is Ivan Gall. Under ORCP 34 F(1), Gall is “automatically substituted” as a party in place of Byler. In this opinion, we refer to relators collectively as “OWRD.”

2.   ORS chapter 539 describes the process for determining water rights that were appropriated for a landowner's beneficial use before February 24, 1909, the effective date of Oregon's first Water Rights Act. Water rights appropriated for beneficial uses after that date are generally governed by ORS chapter 537. See Klamath Irrigation District v. Water Resources Dept., 321 Or App 581, 584, 518 P3d 970 (2022) (describing the effect of the Water Rights Act); Warner Valley Stock Co. v. Lynch, 215 Or 523, 548, 336 P2d 884 (1959) (noting the division in Oregon law for determining water rights before and after the 1909 effective date of the Water Rights Act).

3.   OWRD's administrative water rights determinations may be enforced under ORS 539.130(4) while the review in Klamath County Circuit Court is pending. See Klamath Irrigation District, 321 Or App at 585 (explaining that OWRD's water rights determinations in the Klamath Basin are “presently enforceable” and “must be followed by all owners of determined claims pending the judicial review phase” of the adjudication that is pending in Klamath County Circuit Court).

4.   As relevant here, ORCP 43 A(1) authorizes a party in litigation to “serve on any other party a request to produce * * * any designated documents * * * that constitute or contain matters within the scope of [ORCP] 36 B and that are in the possession, custody, or control of the party on whom the request is served.”

5.   That amendment applies to “public records created on or after the effective date” of the 2007 Act. Or. Laws 2007, ch. 513, § 6. Because OEC 503(7) applies to records that were “ordered to be disclosed under” the public records law, and this case does not involve such records, we need not decide whether OEC 503(7) would maintain the privilege if records created before the effective date of the 2007 Act were ordered to be disclosed under the public records law.

6.   A person denied the right to inspect or to receive a copy of a public record of a public body other than a state agency may file a petition to review that decision with the district attorney of the county in which the public body is located. ORS 192.415(1).

7.   The 1999 legislation, proposed as Senate Bill (SB) 396, amended ORS 192.420. That statute was renumbered as ORS 192.314 in 2017.

8.   We described that exemption as a “catchall exemption” because, before it was enacted in 1987 (Or. Laws 1987, ch. 373, § 23e(8)), the public records law had attempted to list every statute that prohibited or restricted disclosure of public records. In 1987, the legislature “abandoned that effort in favor of the catchall exemption.” Bartlett, 369 Or at 616. The attorney-client privilege was listed in the predecessor to ORS 192.355(9)(a), and we have concluded that that privilege “was intended to be captured by the catchall exemption.” Id. No party in this case disputes that the “catchall exemption” includes the attorney-client privilege.

9.   ORS 192.398(3) also provides that records of a person who is or was in custody are exempt from disclosure for 25 years. Subsection (4) exempts “[s]tudent records required by state or federal law to be exempt from disclosure” and does not specify a time limitation for that exemption. ORS 192.398(4).

10.   SRCC argues that OWRD does not have a “confidentiality interest” or “continuing secrecy interest” in the disputed documents. Because ORCP 36 B authorizes discovery of information that is “not privileged,” and OEC 503 gives OWRD a privilege to prevent disclosure of “confidential communications,” we understand SRCC's argument to be that the documents are not “confidential” and, thus, are subject to discovery regardless of whether they remain privileged for evidentiary purposes.

11.   Our reference to OEC 503(7) here relates to our interpretation of the statute, not its application to the records in dispute in this case. As noted earlier, the addition of subsection (7) to OEC 503 in 2007 only applies to public records created on or after the effective date of that legislation.

12.   Our conclusion is limited to the facts presented in this case. That is, our conclusion — that records that were privileged when they were made remain privileged for purposes of ORCP 36 B's limit on discovery, even though the records may be subject to disclosure under the public records law — is limited to that set of circumstances. We need not and do not decide whether OEC 503 would preclude the admission of those records into evidence if SRCC obtained them through the public records law procedures.

13.   The converse is also true — a party in litigation with a public body can obtain public records from that public body by serving a written request for public records under ORS 192.324(1) instead of serving an ORCP 43 request for production of documents. However, as noted, a party in litigation with a public body who seeks to obtain records from the public body that relate to the litigation is required to notify the attorney for the public body that they are seeking records through the public records law. ORS 192.314(2)(a).

14.   As for SRCC's suggestion that it could take “years” for it to obtain the records through the public records law procedures, OWRD would be required to respond to a public records law request within five business days, ORS 192.324(2), and must disclose public records “as soon as practicable and without unreasonable delay.” ORS 192.329(1). If OWRD chose to pursue litigation instead of disclosing the records, SRCC would be entitled to recover its costs and attorney fees if it prevailed in the public records law litigation. ORS 192.431(3).

BUSHONG, J.