American Civil Liberties Union of Oregon, Inc v. City of Eugene , 360 Or. 269 ( 2016 )

No. 58 September 15, 2016 269
IN THE SUPREME COURT OF THE
STATE OF OREGON
AMERICAN CIVIL LIBERTIES
UNION OF OREGON, INC.,
an Oregon non-profit public
benefit corporation,
Petitioner on Review,
v.
CITY OF EUGENE, OREGON,
a municipal corporation,
Respondent on Review,
and
CIVILIAN REVIEW BOARD
OF THE CITY OF EUGENE, OREGON,
Defendant.
(CC 161024398, CA A150403, SC S063430)
On review from the Court of Appeals.*
Argued and submitted March 10, 2016.
Steven M. Wilker, Tonkon Torp LLP, Portland, argued
the cause and filed the brief for petitioner on review. With
him on the brief was Sarah M. Einowski.
Jerome Lidz, City Attorney’s Office, City of Eugene,
argued the cause and filed the brief for respondent on review.
With him on the brief was Glenn Klein.
Before Balmer, Chief Justice, Kistler, Walters, Landau,
Baldwin, and Brewer, Justices, and Roger DeHoog, Justice
Pro Tempore.**
WALTERS, J.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
______________
**  Appeal from Lane County Circuit Court, Josephine H. Mooney, Judge. 271
Or App 276, 350 P3d 507 (2015).
**  Nakamoto, J., did not participate in the consideration or decision of this
case.
270 American Civil Liberties Union v. City of Eugene
Case Summary: At trial, the City explained that it had declined to produce
documents relating to the Civilian Review Board’s review of an internal investi-
gation of police misconduct because the subsequent investigation did not result
in discipline of any police officer. The City argued that it was prohibited from
releasing the information by former ORS 181.854(3) (2013), renumbered as ORS
181A.830(3) (2015). ACLU responded that the public interest required disclo-
sure, and that the exemption in ORS 181.854(3) therefore did not apply. The trial
court agreed with the City, and the Court of Appeals affirmed. On review, the
Supreme Court explained that, when the exemption in ORS 181.854(3) applies, a
trial court must determine, as a matter of both law and fact, the nature and sig-
nificance of two competing interests — the public’s interest in disclosure and the
public body’s interest in confidentiality. Then, the court must balance those com-
peting interests and determine, as a matter of law, which interest predominates.
Here, reviewing the trial court’s conclusions about which interest predominates
for legal error, the Supreme Court concluded that the public’s interest in whether
the police engaged in excessive force outweighed the public body’s interest in
protecting officer privacy.
The decision of the Court of Appeals is reversed. The judgment of the cir-
cuit court is reversed, and the case is remanded to the circuit court for further
proceedings.
Cite as 360 Or 269 (2016) 271
WALTERS, J.
At issue in this case is a conditional exemption from
the “right to inspect any public record of a public body in
this state.” ORS 192.420(1). Former ORS 181.854(3) (2013),
renumbered as ORS 181A.830(3) (2015), exempts from
inspection information about a personnel investigation of a
public safety officer if the investigation does not result in
discipline of the officer.1 That exemption is, however, condi-
tional. It does not apply when “the public interest requires
disclosure of the information.” ORS 181.854(4)(a).2 As we
will explain, when that exemption applies, a trial court must
determine, as a matter of both law and fact, the nature and
significance of two competing interests—the public’s interest
in disclosure and the public body’s interest in confidentiality.
Then, the court must balance those competing interests and
determine, as a matter of law, which interest predominates.
In this case, after considering the nature and significance of
the competing interests, we conclude that the public inter-
est in disclosure of the requested records predominates, and
the trial court erred in declining to order their disclosure.
We reverse the contrary decision of the Court of Appeals,
American Civil Liberties Union v. City of Eugene, 271 Or App
276, 350 P3d 507 (2015), and the judgment of the trial court
and remand for further proceedings.3
1
In 2015, the legislature renumbered ORS 181.854 as ORS 181A.830, but
the text of the statute did not change. For simplicity, we will refer to that statute
throughout this opinion as ORS 181.854 because that was its numbering at the
time that this case was decided in the trial court and the Court of Appeals.
2
As relevant here, ORS 181.854 provides:
“(3)  A public body may not disclose information about a personnel inves-
tigation of a public safety employee of the public body if the investigation does
not result in discipline of the employee.
“(4)  Subsection (3) of this section does not apply:
“(a)  When the public interest requires disclosure of the information.
“(b)  When the employee consents to disclosure in writing.
“(c)  When disclosure is necessary for an investigation by the public body,
the Department of Public Safety Standards and Training or a citizen review
body designated by the public body.
“(d)  When the public body determines that nondisclosure of the informa-
tion would adversely affect the confidence of the public in the public body.”
3
Because we reverse for the reasons stated, we do not reach ACLU’s argu-
ment that the exemption set out in ORS 181.854(3) does not apply when records
are disclosed to a civilian review board pursuant to ORS 181.854(4)(c).
272 American Civil Liberties Union v. City of Eugene
I.  FACTUAL AND PROCEDURAL BACKGROUND
A.  Stipulated Facts
This case was tried to the circuit court on the fol-
lowing stipulated facts:
“1.  The City of Eugene (the City) is a public body.
“2.  The Civilian Review Board (‘CRB’) of the City of
Eugene is a citizen review body established by Eugene
City Code § 2.240.
“3.  The CRB was ‘established * * * to increase the trans-
parency of, and public confidence in, the police com-
plaint process. In general, the civilian review board
shall evaluate the work of the independent police audi-
tor, and may review completed complaint investiga-
tions involving sworn police employees to provide com-
ment, from a civilian perspective, about whether the
complaint was handled fairly and with due diligence.’
Eugene City Code § 2.240(1).
“4.  The CRB was ‘intended [to] provide a system of inde-
pendent oversight of the police complaint process and
implement section 15-A of the Eugene Charter of 2002
as adopted by the city electorate on November 8, 2005
[and to] serve as an advisory body to the city council.’
Eugene City Code § 2.240(2) and (4).
“5.  On May 30, 2008, police officers employed by the City of
Eugene used Taser stun guns in the process of arrest-
ing [Mr.] Van Ornum4 and others during a protest in
downtown Eugene against the use of pesticides (the
‘Van Ornum Case’).
“6.  In June 2008, the [CRB] designated the Van Ornum
Case as a ‘Community Impact Case.’ The Van Ornum
Case was the first case designated as a ‘Community
Impact Case’ in the CRB’s then three[-]year history[,]
and no other case has been so designated since that
time.
4
In this proceeding and in the criminal trial court, Mr. Van Ornum’s sur-
name is shown as “Van Ornum.” In the appellate and supreme court proceedings
following his conviction, however, his surname is shown as “Vanornum.” State
v. Vanornum, 354 Or 614, 317 P3d 889 (2013). We will refer to him as Mr. Van
Ornum throughout this opinion.
Cite as 360 Or 269 (2016) 273
“7.    Following the incident, the Internal Affairs division of
the Eugene Police Department investigated the Van
Ornum Case and the officers involved in the case.
“8.   The Internal Affairs investigation of the Van Ornum
Case was a personnel investigation of the public safety
officers employed by the City of Eugene involved in the
incident.
“9.   The Internal Affairs investigation file of the Van
Ornum Case was transmitted to the Police Chief, the
Police Auditor and, later, to the [CRB].
“10.       Police Chief [ ] Kerns made preliminary findings
regarding the conduct of the officers involved in the
Van Ornum Case as follows:
“1.  Policy Manual (POM) 901.1. Use of Force
“a.  The force used by the three officers involved
in the arrest of Mr. Van Ornum and the arrest
of [Mr.] Farley—within policy.
“b.  The arresting officer repeatedly pounded
Mr. Van Ornum’s head into the pavement—
unfounded.
“2.  POM 309.4. Use of the Taser
“a.  The use or actual application of the Taser
by the arresting officer while affecting the
arrest of Mr. Van Ornum and defending him-
self against Mr. Farley—within policy.
“b.  The use of the Taser not fired by a second
officer to defend the arresting officer from
Mr. Farley—within policy.
“3.  POM 901.1 Use of Force—The force used by
the officer in pushing Mr. Owen and striking
Mr. Farley—within policy.
“4.  POM 1101.1(6) a—Constitutional Rights—That
the officer had probable cause to arrest Mr. Owen
for the crimes for which he was charged—within
policy.
“11.       On October 1, 2009, the [CRB] held a public meeting
to consider and vote on the preliminary findings made
by Chief Kerns. The [CRB] concurred unanimously in
all but one of Chief Kerns’ preliminary findings. The
274 American Civil Liberties Union v. City of Eugene
CRB concurred by a 4-2 vote in preliminary finding
2.a: ‘The use or actual application of the Taser by the
arresting officer while affecting the arrest of Mr. Van
Ornum and defending himself against Mr. Farley—
within policy.
“12.       Chief Kerns subsequently confirmed his preliminary
findings, making a final adjudication that the officers’
conduct was within policy and that the complaints
were unfounded. The Internal Affairs investigation
did not result in discipline.
“13.       On December 15, 2009, plaintiff American Civil
Liberties Union of Oregon, Inc. (‘ACLU’), made a
request under the Oregon Public Records law to
inspect and copy ‘all documents used by the Civilian
Review Board in reviewing and deciding the May 30,
2008, [ ] Van Ornum Community Impact Case.
“14.       The City of Eugene denied ACLU the opportunity to
inspect and copy the requested records because ‘the
subsequent investigation did not result in discipline
of any police officer’ and ‘pursuant to ORS 181.854(3),
and the City’s determination that no exception to the
statutory prohibition exist in this instance, the City
is prohibited from releasing information related to
the personnel investigation arising from the May 30,
2008, incident.
“15.       On July 9, 2010, ACLU petitioned the Lane County
District Attorney to review the City of Eugene’s denial
of the public records request.
“16.       In response to the petition, the City of Eugene released
some of the records that had been withheld, but con-
tinued to assert that the portions of the Internal
Affairs investigative file that had not been released
were confidential and not subject to disclosure.
“17.       The Lane County District Attorney declined to order
disclosure of the requested documents.
“18.       ACLU filed this action to compel the City of Eugene to
disclose the requested documents.”
B.  Trial and the Trial Court Decision
At the outset of trial, the court took judicial notice
of the documents in its file and received plaintiff’s exhibits
Cite as 360 Or 269 (2016) 275
1-38, some of which were designated as joint exhibits. The
admitted exhibits included ACLU’s request for documents
and a letter from the city attorney explaining, as stipulated,
that the City had declined to produce the requested docu-
ments because “the subsequent investigation did not result
in discipline of any police officer” and “pursuant to ORS
181.854(3), and the City’s determination that no exception
to the statutory prohibition exists in this instance, the City
is prohibited from releasing information related to the per-
sonnel investigation arising from the May 30, 2008[,] inci-
dent.” The admitted exhibits also included printouts from
Van Ornum’s criminal trial; minutes of CRB meetings; the
2009 Annual Report of the City’s police auditor; numerous
newspaper articles that discussed the use of Tasers and
the CRB review; and the deposition testimony of the police
chief. After receiving that evidence, the court ruled that the
City had the burden to establish the existence of an exemp-
tion to disclosure. However, the court explained, once the
City met that burden, the burden “[shifted] to the request-
ing party to establish than an exception to that exemption
applies.”
ACLU then called its executive director, David
Fidanque, to the stand. In his declaration on summary
judgment (judicially noticed by the court) and in his testi-
mony at trial, Fidanque testified that the CRB was created
because there were “issues of concern regarding allegations
of police misconduct” and that the CRB “was given unique
authority to oversee and make recommendations concerning
allegations of police misconduct in dealings with the public.”
Fidanque explained that ACLU was interested in review-
ing the records in the Van Ornum case because of its ongo-
ing concern “about the interaction between the operation of
the independent police auditor and [the CRB] vis-à-vis the
police department and the Internal Affairs office, and the
chief as well.” In particular, Fidanque said, ACLU was con-
cerned that some members of the CRB had indicated that
they had discounted certain witness statements from people
who were participating in the protest in favor of other wit-
ness accounts, despite the fact that the discounted witnesses
were closer in proximity to the scene of the arrest. Fidanque
testified that ACLU was interested in reviewing the witness
276 American Civil Liberties Union v. City of Eugene
statements to determine whether the CRB was performing
its expected role:
“[T]he public interest is to help the public understand
whether the system they created in order to provide inde-
pendent oversight of the police department in police mis-
conduct allegation cases is operating as intended * * *.
“So that, just to put that in plain English, is the review
board acting in the way that the voters intended when they
created it?”
ACLU rested after Fidanque’s testimony, and the
court considered the City’s motion to dismiss. In that motion,
the City asserted that ACLU had no right to disclosure for
the following reasons:
“On the law and the facts presented in this case, including
the evidence of the comprehensive public disclosure during
the trial of State v. Van Ornum of the facts of the May 30,
2008, incident that is the subject of the records which
[p]laintiff seeks to be publicly disclosed, the disclosure of
those records to a public investigatory body—the Civilian
Review Board (CRB)—and the public disclosure of the min-
utes of the CRB’s October 1, 2010, meeting at which the
CRB reviewed those records, [p]laintiff has shown no right
to the relief it seeks.”
(Internal footnote omitted.) The court denied the City’s
motion, and, at the City’s request, then admitted, and took
a brief recess to review in camera, the only exhibit proffered
by the City—a sealed envelope containing the disputed
records. The City did not call any witnesses. However, as
noted, one of the exhibits that ACLU proffered and that the
court received was the deposition testimony of the police
chief. In his deposition, the chief testified that he had made
the determination not to disclose the records because he had
“conferred with the City’s attorneys and asked for their legal
advice on whether or not to release [them],” and made his
decision “based on the advice of [his] counsel.”
After the City rested, the court announced its deci-
sion. The court began by explaining that the evidence sug-
gested that there were two competing public interests. The
first was the public interest in “ensuring appropriate use of
force and, in particular, Tasers by law enforcement.” The
Cite as 360 Or 269 (2016) 277
second was the “public interest in having a safe, high qual-
ity police department * * * that can effectively review its own
actions and provide discipline, evaluation, and training for
its officers.” The court found that the existence of the CRB
was evidence of the second of those two competing interests
and that the CRB had been created to balance and safe-
guard “the public interest in competition here.” The court
noted that the exception in ORS 181.854(4)(c), which allows
public bodies to release the kind of information involved in
this case to a citizen review body, such as the CRB, further
indicated that the CRB’s role was to balance those interests:
“ORS [181]. 854(4)(c) carves out a narrow exception
that allows disclosure to the [CRB] of records they need to
do just that. That provision was created to act as a waiver
of confidentiality when a [CRB] is involved. It was created
to extend that confidentiality so as to allow the review or
the oversight that that body provides, so to allow over-
sight while protecting confidentiality and therein lies the
balance.”
Thus, with regard to the public interest in appropriate use of
force by police, the court determined that disclosure was not
required because the CRB provided public oversight while
maintaining the confidentiality that the statute anticipated.
Assuming that ACLU had the burden to prove that
the public interest required disclosure, the court then said
that
“[t]he ACLU was instrumental in, according to
Mr. Fidanque’s testimony, and likely should be applauded
for its role in creating[,] the [CRB] in order to have that
oversight here in Eugene, but I don’t think the evidence has
shown in this case that the public interest now requires
disclosure of the internal review records that the [CRB]
reviewed in order to now oversee what the [CRB] did.
“So sort of that riddle of finality, how much is enough?
When is enough enough? So do we keep—do we set up
review boards and then seek review of their work and then
keep going on? Sort of like the Cat in the Hat stories. Every
time the cat takes his hat off, another cat pops out. And
when does—when does it end?
“Disclosure at this juncture to review the review
board, * * * I find is not required based upon the evidence
278 American Civil Liberties Union v. City of Eugene
presented, and, thus, the ACLU, as plaintiff in this case,
has failed to meet its burden of establishing that the excep-
tion applies.”
However, the court went on to explain, even if the
City had the burden of establishing an exemption to disclo-
sure, the court would have found that the evidence supported
nondisclosure. The court indicated that, given its findings
regarding the CRB’s function and the statutory scheme, it
would have reached the same result. Furthermore, the court
said, it had reviewed the requested records in camera and
noted that “there was nothing in those records that caused
[him] to conclude that the public interest would require
* * * disclosure of those records in this case.” The court then
entered a general judgment in favor of the City, consistent
with its ruling.
C.  Court of Appeals Decision
The Court of Appeals affirmed. American Civil
Liberties Union of Oregon, 271 Or App at 278. The court
began by stating the standard of review that it intended to
apply:
“[W]e accept the trial court’s findings of historical fact if
those findings are supported by any evidence in the record,
and we review the trial court’s conclusions for legal error.”
Id. at 279. The court also stated the legal standard for deter-
mining whether an exemption under ORS 181.854 applies:
“Thus, as in the cases involving the applicability of the
public-interest exception in ORS 192.501, we conclude that,
when a trial court is analyzing whether the public-interest
exception in ORS 181.854(4)(a) applies, the court must bal-
ance the public interest in disclosure against the public
body’s interest in nondisclosure, with the presumption in
favor of disclosure.”
Id. at 288.
The court then explained its understanding of the
trial court’s decision. Id. at 288-89. The Court of Appeals
said that the trial court had (1) identified the public inter-
est in disclosure as an interest in “ensuring that police
officers are using appropriate force in their interactions
Cite as 360 Or 269 (2016) 279
with the public”; (2) identified the public body’s interest
in confidentiality as an interest in “having a police force
that can effectively review its own actions and provide
discipline and training for its officers”; (3) determined
that “the CRB was created to balance those interests—to
allow for oversight of police misconduct while maintain-
ing confidentiality of the police’s internal investigation
of complaints against its officers”; and (4) determined,
“based on the evidence presented,” that the public interest
in transparency of the CRB’s work did not require disclo-
sure. Id.Finally, the Court of Appeals concluded that
none of the trial court’s conclusions were erroneous. Id.
at 289-90. The court reasoned that the trial court had
not erred in deciding that the “mere existence of a pub-
lic interest in government transparency is insufficient
to warrant release” of the departmental investigation
and that the trial court “could reasonably determine
that ACLU failed to demonstrate that the public’s inter-
est in transparency required release of the records.” Id.
at 290-91. Further, the Court of Appeals explained, the
record showed that the CRB had extensively reviewed
the departmental investigation in a public forum; the
trial court had reviewed the investigative records in
camera; and the trial court had concluded that the pub-
lic interest did not require disclosure of those records so
that the public could reach its own conclusions about the
sufficiency of those reviews. Id. at 291. Thus, the Court of
Appeals concluded, “[g]iven the evidence presented,” the
trial court had not erred. Id.II.  APPLICABLE LEGAL STANDARDS
It now falls to us to make our own determination
about whether the trial court erred in declining to order
disclosure. To do so, we must first consider the applicable
legal standards—both the legal standard that a trial court
is required to apply in deciding whether to require disclo-
sure of public records and the legal standard that an appel-
late court is required to apply in reviewing a trial court’s
decision.
280 American Civil Liberties Union v. City of Eugene
A.  The Legal Standards That a Trial Court is Required to
Apply
Before this court, the parties seem to agree with
the Court of Appeals that, to determine whether the public
interest requires disclosure under ORS 181.854, a trial court
must balance the public’s interest in disclosure against the
public body’s interest in confidentiality, with the presump-
tion in favor of disclosure. In confirming that that is the
applicable legal standard, we proceed as follows. First, we
briefly summarize the history of the Public Records Law and
its underlying principles. Second, we outline a case decided
by the Court of Appeals in 1988, a year before the enactment
of ORS 181.854, and reason from those underlying princi-
ples and that enactment history. Third, we explain that, in
determining the nature and significance of the competing
interests that a trial court must balance, a trial court must
consider both law and fact. Fourth, we conclude that a trial
court’s conclusion about which of the competing interests
predominates is a question of law.
1.  History of Public Records Law and underlying
principles
The right to inspect public records is set forth in
ORS 192.420(1):
“Every person has a right to inspect any public record
of a public body in this state, except as otherwise expressly
provided by ORS 192.501 to 192.505.”
Some version of that right to inspection has been part of
Oregon law since 1862. Jordan v. MVD, 308 Or 433, 437,
781 P2d 1203 (1989). That right was included in the original
Deady Code, and, in 1961, the legislature reaffirmed it and
deleted a provision that had limited it to those with a “law-
ful purpose.” Id.In 1961, in an opinion authored by Chief Justice
O’Connell, this court decided MacEwan v. Holm et al, 226
Or 27, 359 P2d 413 (1961). The question presented was
whether the plaintiff had a right to inspect data collected
by the State Board of Heath relating to nuclear radiation
sources. Id. at 29. At that time, ORS 192.010 provided that
Cite as 360 Or 269 (2016) 281
“[e]very citizen of this state has a right to inspect any public
writing of this state, except as otherwise expressly provided
by statute.” Id. at 34-35. The court determined that the data
that the plaintiff sought constituted a “public writing” as
that term was used in ORS 192.010 and that no other stat-
ute expressly provided an exemption. Id. at 39. In making
that determination, the court described the principles that
underlie the public’s right to inspect public records:
“Writings coming into the hands of public officers in
connection with their official functions should generally
be accessible to members of the public so that there will
be an opportunity to determine whether those who have
been entrusted with the affairs of government are hon-
estly, faithfully and competently performing their function
as public servants. Nowack v. Auditor General, [243 Mich
200, 219 NW 749 (1928)]. ‘Public business is the public’s
business. The people have the right to know. Freedom of
information [about public records and proceedings] is their
just heritage. * * * Citizens * * * must have the legal right
to * * * investigate the conduct of [their] affairs.’ Cross, The
People’s Right to Know, p xiii (1953).”
Id. at 38 (emphasis in original). But the court also observed
that “[t]he public’s right of inspection is not without qualifi-
cation.” Id. at 44. As a result, the court explained, in deter-
mining whether the records should be made available for
public inspection in any particular instance, a court must
balance the interest of the citizen in knowing what the ser-
vants of government are doing and the citizen’s proprietary
interest in public property, against the interest of the public
in having the business of government carried on efficiently
and without undue interference. Id. at 45.
In conducting that balancing, the court said that
“the scales must reflect the fundamental right of a citizen
to have access to the public records as contrasted with the
incidental right of the agency to be free from unreason-
able interference. Note: Access to Official Information: A
Neglected Constitutional Right, 27 Ind LJ. 209 (1951).”
Id. at 46. And, significantly, the court described the public’s
fundamental interest as placing the “burden of proof” on the
public entity opposing disclosure:
282 American Civil Liberties Union v. City of Eugene
“The citizen’s predominant interest may be expressed in
terms of the burden of proof which is applicable in this class
of cases; the burden is cast upon the agency to explain why
the records sought should not be furnished.”
Id. (emphasis added). “Ultimately,” however, the court
explained that it falls to the courts to determine whether
disclosure is required:
“[It] is for the courts to decide whether the explanation
is reasonable and to weigh the benefits accruing to the
agency from nondisclosure against the harm which may
result to the public if such records are not made available
for inspection.”
Id.
In 1973, the legislature adopted a more detailed
Public Records Law. Or Laws 1973, ch 794. That law “con-
tinued the general rule mandating disclosure of public
records unless an exemption expressly applies.” Jordan, 308
Or at 437. And it also incorporated a number of the concepts
that the court had discussed in MacEwan. The new Public
Records Law provided that “the burden is on the public body
to sustain its action,” ORS 192.490(1), and made certain
categories of documents exempt from inspection “unless
the public interest requires disclosure in the particular
instance,” ORS 192.501.
2.  The Court of Appeals decision in 1998 and the enact-
ment of ORS 181.854
In 1998, just one year prior to the enactment of the
statute at issue in this case, the Court of Appeals decided
Oregonian Publishing v. Portland School Dist. No. 1J, 144
Or App 180, 182, 925 P2d 591 (1996), modified and adh’d
to on recons, 152 Or App 135, 952 P2d 66 (1998). In that
case, The Oregonian sought disclosure of an investigative
report that had resulted in the discipline of public school
teachers. Id. at 182-83. One of the questions presented was
whether the report was exempt from disclosure under ORS
192.501(12). Id. at 187. That statute provided (and continues
to provide) an exemption for “a personnel discipline action,
or materials or documents supporting that action,” ORS
192.501(12), unless “the public interest requires disclosure
Cite as 360 Or 269 (2016) 283
in the particular instance,” ORS 192.501. The court began
by explaining the exemption provided by ORS 192.501(12)
as a conditional exemption that requires a court to “balance
the private interest in confidentiality against the public
interest in disclosure.” Oregonian Publishing, 144 Or App at
187. The court then described the public interest in disclo-
sure. The court quoted Guard Publishing Co. v. Lane County
School Dist. No. 4J, 96 Or App 463, 469, 774 P2d 494 (1989),
rev’d, 310 Or 32, 791 P2d 854 (1990), for the proposition that
“ ‘the Public Records [inspection law] expresses the legisla-
ture’s view that members of the public are entitled to infor-
mation that will facilitate their understanding of how pub-
lic business is conducted,’ ” and also cited the fact that the
teachers had been investigated for misuse and theft of pub-
lic property as indicating that the public’s interest in disclo-
sure was significant. Oregonian Publishing, 144 Or App at
187. In describing the competing “private” interest in confi-
dentiality, the court cited the fact that the matter already
had received substantial publicity and concluded that “it is
not clear that disclosure of the documents will intrude into
any privacy that [the employees] enjoy with respect to it.”
Id. Then, weighing those interests, “with the presumption
always being in favor of disclosure,” the court concluded that
the documents were not exempt under ORS 192.501(12).5 Id.
(internal quotation marks omitted).
A year later, the legislature adopted the similarly
worded conditional exemption at issue in this case. Or
Laws 1999, ch 855, § 3. While ORS 192.501(12) provides an
exemption to disclosure when a public employee is subjected
to discipline, ORS 181.854(3) provides an exemption to dis-
closure when a public safety employee is not subjected to dis-
cipline.6 Both exemptions are similar, however, in that they
are conditional. Like ORS 192.501(12), ORS 181.854(3) does
not apply “when the public interest requires disclosure of
5
This court affirmed. Oregonian Publishing v. Portland School Dist. No. 1J,
329 Or 393, 987 P2d 480 (1999). However, the only issue on review was the appli-
cability of another exemption provided by ORS 342.850(8); this court did not
discuss the conditional exemption provided by ORS 192.501(12).
6
ORS 181.854 is incorporated into the Public Records Act by ORS 192.502(9)(a).
That statute provides a catch-all exemption for all records “the disclosure of
which is prohibited or restricted or otherwise made confidential or privileged
under Oregon law.” ORS 192.502(9)(a).
284 American Civil Liberties Union v. City of Eugene
the information.” ORS 181.854(4)(a). As relevant here, ORS
181.854 provides:
“(3)  A public body may not disclose information about
a personnel investigation of a public safety employee of the
public body if the investigation does not result in discipline
of the employee.
“(4)  Subsection (3) of this section does not apply:
“(a)  When the public interest requires disclosure of
the information.
“(b)  When the employee consents to disclosure in
writing.
“(c)  When disclosure is necessary for an investiga-
tion by the public body, the Department of Public Safety
Standards and Training or a citizen review body desig-
nated by the public body.
“(d)  When the public body determines that nondisclo-
sure of the information would adversely affect the confi-
dence of the public in the public body.”
When it enacted ORS 181.854 in 1999, the legis-
lature had the benefit of the Court of Appeals decision in
Oregonian Publishing, and we presume that the legislature
was aware of that decision. See Johnson v. Gibson, 358 Or
624, 635, 369 P3d 1151 (2016) (presuming that legislature
was aware of existing case law). We think it likely that the
legislature intended to require a similar balancing test to
determine the applicability of the conditional exemption
that it provided in that statute.7 The balancing of competing
7
Throughout its brief in this court, the City acknowledges that, in consider-
ing the exemption in ORS 181.854(3), a trial court must determine whether the
public interest in disclosure outweighs the competing interest in confidentiality,
with the presumption in favor of disclosure. That said, the City also asserts that
because ORS 181.854(3) affirmatively prohibits disclosure of the records of a per-
sonnel investigation of a public safety employee that does not result in discipline,
the interest in confidentiality is greater than the interest afforded to records
that are “merely” exempt from disclosure. That means, the City argues, that “the
balancing of interests starts from a different point.” The City is correct that this
court has interpreted exemptions from disclosure to permit but not to require
a public body to withhold requested documents. Guard Publishing Co. v. Lane
County School Dist. No. 4J, 310 Or 32, 37-38, 791 P2d 854 (1990). However, if a
public body withholds documents for any reason, whether it chooses to do so or
believes it is required to do so, a court must decide whether the public interest
nevertheless requires disclosure. We agree with the Court of Appeals that the
Cite as 360 Or 269 (2016) 285
interests has been a feature of the Public Records Law since
this court’s decision in MacEwan, and, like the parties and
Court of Appeals, we conclude that, to decide the applicabil-
ity of the conditional exemption provided by ORS 181.854(3),
the appropriate question for a trial court is whether the pub-
lic interest in disclosure outweighs the competing interest in
confidentiality, with the presumption in favor of disclosure.
3.  Determination of the nature and significance of com-
peting interests
We also think it evident from the Court of Appeals
decision in Oregonian Publishing that a trial court’s deter-
mination of the nature and significance of the interests that
it must balance in deciding whether to order disclosure of
public documents may entail consideration of both law and
fact. In that case, as noted, the Court of Appeals discussed
as relevant both the applicable legal principles and the facts
that had been proffered by the parties to conclude that, in
the particular circumstances presented, there were compet-
ing interests in disclosure and confidentiality, and that the
interest in disclosure was particularly significant and the
interest in privacy was somewhat diminished. Oregonian
Publishing, 144 Or App at 187.
This court has taken that same approach. It has
explained that a plaintiff is entitled to rely on the statute that
grants the public a right to inspect public documents—ORS
192.420(1)—and the “strong and enduring policy that public
records and governmental activities be open to the public”
to establish the public’s interest in disclosure. Jordan, 308
Or at 438. In addition, this court has recognized that other
aspects of the law may be of assistance in determining the
nature of the competing interests. For instance, in Jordan,
the court considered the legislature’s reasons for the com-
pilation and dissemination of certain motor vehicle infor-
mation in determining the nature of the public interest in
the disclosure of that information. Id. at 439. The court also
looked to the text of the statute exempting such information
legal standard used to analyze the public-interest exception in ORS 181.854(4)(a)
should not differ from that used to analyze the public-interest exception in ORS
192.501, and we note that the parties did not argue otherwise in the Court of
Appeals. American Civil Liberties Union, 271 Or App at 287.
286 American Civil Liberties Union v. City of Eugene
from disclosure to determine the nature of the interest in
maintaining the confidentiality of the records. Id. at 441-42.
This court has not, however, limited its analysis to
legal arguments alone. This court also has discussed the
evidence presented by the parties in assessing the nature
and significance of the competing interests. Thus, in Jordan,
the court considered an affidavit describing the harm that
could result if the requested motor vehicle information were
disclosed. Id. at 436. And in Sadler v. Oregon State Bar, 275
Or 279, 283-84, 550 P2d 1218 (1976), the court declined to
accept the defendant’s argument that individuals would not
be willing to criticize attorneys if they knew that their com-
plaints could become public knowledge because the defen-
dant had not presented evidence to establish that point.
Similarly, the Court of Appeals has considered factual evi-
dence, or the lack of such evidence, in assessing the compet-
ing interests of the public and the public body. See, e.g., City
of Portland v. Oregonian Publishing Co., 200 Or App 120,
124-25, 112 P3d 457 (2005) (court considered affidavits and
documents); In Defense of Animals v. OHSU, 199 Or App
160, 171, 178-79, 112 P3d 336 (2005) (court considered con-
tractual provisions and lack of evidence).
As the Court of Appeals observed in Turner v. Reed,
22 Or App 177, 187, 538 P2d 373 (1975), for certain cate-
gories of documents, the nature of the competing interests
may be determined as a matter of law. For others, the par-
ties may be required to identify and prove the interests at
stake. Id. at 193. Whether a party is required to introduce
facts establishing the nature and significance of an inter-
est that favors disclosure or confidentiality will depend on
whether the interest on which the party relies is evident as a
matter of law or is dependent on the production of evidence.
When a party can establish the interest in disclo-
sure or confidentiality as a matter of law, the party is not
required to adduce additional evidence of that interest.
When, however, a party cannot establish such an interest
as a matter of law, the party must adduce evidence of the
interest in disclosure or confidentiality before that interest
can be weighed against a competing interest. And a party is
not limited to available legal arguments. A party is entitled
Cite as 360 Or 269 (2016) 287
to adduce facts to establish an interest in disclosure or con-
fidentiality, or, if a party wishes to claim that the interest
propounded is of greater or lesser import given the partic-
ular circumstances that the case presents, the party again
may rely on legal arguments or evidence that it proffers. A
statute or its context may indicate that a party’s interest
is more or less weighty in the relevant circumstances, and
facts adduced by a party may demonstrate that a claimed
interest is more or less weighty than it might appear in the
abstract.
4.  Determination of which interest predominates is a
question of law
Once a trial court has determined the nature
and significance of the competing interests, the court, as
indicated, must balance the public’s interest in disclosure
against the public body’s interest in confidentiality. In this
case, the City describes that balancing as a fact-finding pro-
cess and asserts that an appellate court must affirm the
trial court’s conclusion if there are any facts to support it. In
support of that position, the City relies on a Court of Appeals
case—In Defense of Animals, 199 Or App at 169, 176. In
that case, however, the Court of Appeals did not describe
the balancing process as a fact-finding process, nor did it
defer to the trial court’s conclusions. Instead, the Court of
Appeals reviewed the trial court record de novo, pursuant
to former ORS 19.415(3). Id. at 162. That statute has since
been amended to permit but not require de novo appellate
review. Or Laws 2009, ch 231, § 2. In this case, the Court of
Appeals conducted its review under the current version of
ORS 19.415 and declined to exercise its authority to conduct
de novo review. American Civil Liberties Union, 271 Or App
at 278. Thus, In Defense of Animals does not aid us in decid-
ing whether the City is correct that the balancing required
by ORS 181.854(4)(a) is a fact-finding process, and we look
instead to relevant provisions of the Public Records Law and
our cases interpreting that law.
ORS 192.490(1) provides that, in a suit to order the
production of records improperly withheld, the “burden” is
on the public body to sustain its action. That reference to
“burden” is often used to describe the “burden” of producing
288 American Civil Liberties Union v. City of Eugene
factual evidence or persuading a fact-finder of the truth of
that evidence. But, in our view, the Public Records Law does
not use the term “burden” in either of those senses.
When this court said, in MacEwan, that the “citi-
zen’s predominant interest may be expressed in terms of the
burden of proof,” what it meant was not that a court must
decide as a factual matter whether a particular fact has been
established, but that a court must “weigh the benefits accru-
ing to the agency from its nondisclosure against the harm
which may result to the public if such records are not made
available for inspection.” 226 Or at 46 (emphasis added). By
placing the “burden” on the public entity opposing disclo-
sure, the court, in MacEwan, meant to indicate not that a
court must engage in a fact-finding process, but that, if the
interests are in equipoise, the people’s interest in disclosure
must prevail. In our view, when the legislature provided, in
ORS 192.490(1), that, in a public records action, the “burden
is on the public body to sustain its action,” it intended to use
the term “burden” in the same sense that this court used it
in MacEwan—not to indicate that, in weighing competing
interests, a court should decide a factual question, but to
indicate that, when the parties’ interests are of equal value,
the public’s interest in disclosure predominates.
The scale that a court uses to measure the rela-
tive weight of competing interests is not a scale that mea-
sures whether a fact is or is not true; it is a scale that deter-
mines which of two legal interests predominates. When a
trial court uses such a scale to answer a question that has
only one legally correct answer, it decides that question as
a matter of law. See, e.g., Horton v. OHSU, 359 Or 168, 376
P3d 998 (2016) (weighing state’s constitutionally recognized
interest in sovereign immunity against plaintiff’s right to
a remedy as a matter of law); Wallulis v. Dymowski, 323 Or
337, 348, 918 P2d 755 (1996) (weighing competing interests
in determining whether defamatory statement is privileged
as a matter of law); State v. Tourtillott, 289 Or 845, 618 P2d
423 (1980) (weighing governmental interest in enforcement
of laws against intrusion on rights of people stopped at road-
block as a matter of law). In contrast, when there is more
than one legally correct answer to a legal question, a trial
Cite as 360 Or 269 (2016) 289
court exercises its discretion to determine the answer that
it deems correct. State v. Rogers, 330 Or 282, 312, 4 P3d
1261(2000); see, e.g., State v. Sparks, 336 Or 298, 308-09, 83
P3d 304 (2004) (appellate court reviews trial court’s decision
under OEC 403 as to whether probative value is outweighed
by other factors for abuse of discretion).
In Jordan, when this court reviewed the trial court’s
balancing of competing interests, it assumed, correctly, that
there was only one legally correct answer to the question
of which of two competing interests predominated. 308 Or
at 443. That understanding reflects not only the nature of
the decision, but also the need to accord the same weight
to the same interests. See Guard Publishing Co., 310 Or at
37 (legislature intended that Public Records Law be applied
“with a large measure of uniformity”). Although particu-
lar facts may augment or diminish the weight that a court
accords to competing interests, and a trial court’s decision
about which interest predominates may be affected by its
factual findings, that does not mean that the balancing pro-
cess itself constitutes a factual determination or an exer-
cise of discretion. It does not. When a trial court determines
which competing interest predominates, it arrives at a legal
conclusion.
B.  Appellate Standard of Review
The standard by which an appellate court reviews a
trial court’s decisions is determined by their nature. As the
Court of Appeals said at the outset of its opinion in this case,
appellate courts, “accept the trial court’s findings of histori-
cal fact if those findings are supported by any evidence in the
record, and we review the trial court’s conclusions for legal
error.” American Civil Liberties Union, 271 Or App at 279.8
8
The Court of Appeals opinion may not be entirely consistent in its applica-
tion of that standard of review. In affirming the decision of the trial court, the
Court of Appeals stated that the trial court “could reasonably determine that
ACLU failed to demonstrate that the public’s interest in transparency required
release of the records,” seeming to defer to the trial court’s finding as though
it were a factual finding. American Civil Liberties Union, 271 Or App at 291.
However, in other parts of its opinion, the Court of Appeals also seemed to reach
its own conclusion about whether the trial court’s reasoning was correct, and, in
closing, stated that, “[g]iven the evidence presented, the [trial] court did not err
in concluding that the public interest did not require disclosure.” Id.
290 American Civil Liberties Union v. City of Eugene
When an appellate court reviews a trial court’s conclusions
about the nature and significance of the relevant compet-
ing interests, it reviews the trial court’s factual findings to
determine if there is evidence in the record to support them;
it reviews the trial court’s legal conclusions for legal error.
When an appellate court reviews a trial court’s conclusion
about which of the competing interests that it has identi-
fied is predominant, and, therefore, whether disclosure is
required, it reviews that legal conclusion for legal error.
III.  APPLICATION OF LEGAL STANDARDS
Having identified the applicable legal standards,
we now proceed to an analysis of whether the trial court
erred in concluding that the records at issue in this case
are exempt from disclosure under ORS 181.854(3). The
records at issue can be described, generally, as portions of
the Internal Affairs investigative file used by the CRB to
review and decide the Van Ornum case.
As step one in deciding whether to order disclosure
of those records, the trial court was required to determine
the nature and significance of the competing interests in
disclosure and confidentiality. The court was required to
consider the text and context of the Public Records Law,
the text and context of ORS 181.854, and other legal argu-
ments pressed by the parties. The court also was required
to consider evidence, if any, that the parties adduced that
was relevant to the nature or significance of the competing
interests. Then, as step two in the process, the court was
required to weigh those interests and decide, as a matter of
law, which interest predominated. If the trial court consid-
ered the interests to be in equipoise or to weigh in favor of
disclosure, the trial court was required to order disclosure.
In conducting our review of the trial court’s analy-
sis, we too begin at step one with the trial court’s legal
conclusions and factual findings regarding the nature and
significance of the competing interests. As noted, we accept
the trial court’s findings of fact if they are supported by evi-
dence in the record, and we review the trial court’s legal
conclusions for legal error. At step two, we examine, for legal
correctness, whether the trial court erred in weighing those
Cite as 360 Or 269 (2016) 291
interests and in determining that the documents at issue
were exempt from disclosure.
A.  Nature and Significance of Competing Interests
1.  The public’s interest in disclosure
We begin with the nature and significance of the
public interest in disclosure. The only aspect of the public
interest in disclosure that the trial court identified was
the public interest in disclosure of information about police
department operations. The trial court explained that the
evidence suggested that the public had an interest in “ensur-
ing the appropriate use of force and, in particular, Tasers
by law enforcement.” However, the trial court decided, that
interest was met by the creation of the CRB. The trial court
reasoned that the CRB had been established to provide pub-
lic oversight of police operations while, at the same time,
protecting confidentiality.
In so limiting its description of the public interest
in disclosure, the trial court erred. As the City acknowl-
edges, the public has a significant interest in acquiring
“information about how public business is conducted”
and in monitoring “public officials’ performance of their
duties.” That interest extends not only to the business
of the police department, but also to the business of the
entity established to monitor the performance of the police
department—the CRB. The stipulated facts established
that (1) the CRB was intended to provide a system of “inde-
pendent” oversight of the police complaint process; (2) the
CRB had designated the Van Ornum case as a “Community
Impact Case”; (3) the Van Ornum case was the first such
case in the three year history of the CRB, and no other case
had been so designated since that time; and (4) the CRB
had concurred unanimously in all but one of the police
chief’s preliminary findings, and the chief had subsequently
confirmed his preliminary findings. The uncontested facts
established that (1) members of the public had an ongoing
concern about “the interaction between the operation of the
independent police auditor and [the CRB] vis-à-vis the police
department and the Internal Affairs office, and the chief as
well”; (2) members of the public were interested in reviewing
292 American Civil Liberties Union v. City of Eugene
witness statements to determine whether the CRB was per-
forming its expected role; and (3) the public had an interest
in determining whether the CRB was acting in the way that
the voters intended when they created it.
Rather than considering the public’s interest in
reviewing the effectiveness of the CRB, the trial court
apparently discounted that interest, reasoning, from ORS
181.854(4) and the creation of the CRB, that the CRB was
intended to provide the public with the only oversight it
needed. That legal conclusion is incorrect. As noted, ORS
181.854 provides:
“(3)  A public body may not disclose information about
a personnel investigation of a public safety employee of the
public body if the investigation does not result in discipline
of the employee.
“(4)  Subsection (3) of this section does not apply:
“(a)  When the public interest requires disclosure of
the information.
“(b)  When the employee consents to disclosure in
writing.
“(c)  When disclosure is necessary for an investiga-
tion by the public body, the Department of Public Safety
Standards and Training or a citizen review body desig-
nated by the public body.
“(d)  When the public body determines that nondisclo-
sure of the information would adversely affect the confi-
dence of the public in the public body.”
Thus, ORS 181.854(4)(c) anticipates the formation of citi-
zen review bodies and provides that a public body does not
violate the prohibitions of ORS 181.854(3) by providing
information about the discipline of police officers to a citizen
review body designated by the public body. Nevertheless,
ORS 181.854(4)(a) also permits disclosure of such records
to the general public in instances in which the public inter-
est requires such disclosure. ORS 181.854 does not provide
that, when a public body creates a citizen review board, only
the board is entitled to information about the discipline of
police officers or that the public is not entitled to informa-
tion about how the board itself conducts its business. The
Cite as 360 Or 269 (2016) 293
trial court erred in determining, as a matter of law, that
ORS 181.854(4) and the creation of the CRB indicate that
the public had no cognizable interest in disclosure of the
requested CRB records.
With regard to the significance of the public’s inter-
est in disclosure, ACLU contends that the Public Records
Law has long been interpreted as protecting the public’s
interest in transparency, and that the evidence it presented
established that that interest was particularly great in this
case. ACLU argues that the evidence demonstrates that
the case was one of high profile that required public over-
sight, both because it involved the police use of force and
because it was the first case that the CRB had designated
as a “Community Impact Case.”
The City responds that the evidence demonstrates
that the records and information available to the public
included a vast amount of information about the Van Ornum
arrest, the departmental investigation, the CRB’s review of
that investigation and the police chief’s adjudication, as well
as the reasons that the CRB concurred with the police chief’s
adjudication. According to the City, because that informa-
tion provided ample insight into how the City conducts its
business, the public’s interest in the disclosure of additional
information is diminished and disclosure is not required.
We agree with the City that the fact that the pub-
lic already had substantial information about police depart-
mental and CRB operations was a proper consideration in
the trial court’s analysis, but we do not agree that it nec-
essarily cuts in favor of confidentiality. On the one hand,
the public’s knowledge of many aspects of those operations
may reduce its need for additional information. On the other
hand, when information is withheld, the public may suspect
that the City has something to hide. Full disclosure may not
be as necessary when substantial disclosure has occurred,
or full disclosure may serve the public’s interest in promot-
ing public trust in governmental action.
2.  The public body’s interest in confidentiality
We turn now to the City’s competing interest in
confidentiality. On review, the City contends that there
294 American Civil Liberties Union v. City of Eugene
are three aspects of that interest that favor confidentiality:
(1) an interest in protecting the privacy of officers whose
alleged misconduct is not substantiated; (2) an interest in
effectively reviewing its own actions and providing disci-
pline, evaluation, and training for its officers; and (3) an
interest in encouraging witness candor and protecting wit-
ness concerns about potential retaliation. We will consider
each in turn, but before we do, we take up ACLU’s thresh-
old argument that the trial court committed legal error in
considering any aspect of the City’s interest in confidenti-
ality because the City did not offer any evidence of any such
interest. We reject that argument. As we have explained,
to establish an interest in disclosure or confidentiality a
party may rely solely on legal arguments. Thus, the City
was permitted to argue from ORS 181.854(3) alone that
public bodies have an interest in maintaining the confi-
dentiality of information about a personnel investigation
of a public safety officer when the investigation does not
result in discipline of the employee. Although the City also
was permitted to make other legal arguments about the
nature of its interest in confidentiality and to adduce evi-
dence of its interests given the particular factual circum-
stances presented, it was not required to do so. The City
was entitled to rest its argument for nondisclosure on that
statute alone, and ACLU’s argument that the trial court
erred in recognizing an interest in confidentiality because
the City did not adduce evidence of that interest is without
merit.
We also reject ACLU’s second argument that
the only interest in confidentiality that ORS 181.854(3)
permits a court to consider is an interest in protecting
the privacy of officers who are not disciplined for alleged
wrongdoing. ACLU contends that that limitation arises
from the fact that the exemption is an exemption for
records of personnel investigations of public safety officers
who are not subjected to discipline. ACLU also observes
that ORS 181.854(6) requires that a public body notify a
public safety officer when requested records include cer-
tain private information such as that kept in a personal
or medical file or certain personal identifying information
such as date of birth, and social security and telephone
Cite as 360 Or 269 (2016) 295
numbers.9 Accordingly, ACLU contends, the sole purpose
of ORS 181.854(3) is to preserve an officer’s privacy.
We agree with both the City and ACLU that ORS
181.854(3) evidences a legislative intent to protect the pri-
vacy of officers whose alleged misconduct is not substan-
tiated. However, we do not agree with ACLU that that is
the only interest that the statute is intended to protect.
Although the statute requires that the public body inform
an employee of a request for certain private and personal
identifying information, it does not prohibit disclosure with-
out the consent of the affected employee. In that regard,
ORS 181.854(3) differs from ORS 181.854(2), which makes
disclosure of an officer’s photograph dependent on the offi-
cer’s consent. ORS 181.854(3) appears to anticipate that the
public body may have an interest in confidentiality that is
separate from the interest of the public employee.
We do agree, however, with another argument that
ACLU makes about the nature of the City’s interest in pro-
tecting its officers’ privacy. ACLU contends that the evi-
dence at trial indicated that that interest was diminished
in this case because the identity of the officers whose con-
duct was in question already had been disclosed. The evi-
dence indeed demonstrates that when the City charged and
tried Van Ornum for criminal conduct, the identity of the
officers who arrested him and used Tasers in the process
was revealed and extensively discussed. In the public CRB
meetings during which the CRB reviewed the police chief’s
recommendation to dismiss the charges of officer miscon-
duct, the conduct of the officers also was publicly discussed.
The City concedes as much, but contends that an officer’s
interest in privacy “would not evaporate simply because the
officer’s name has been publicized. The report may well con-
tain personal information, beyond the officer’s identity, that
the public has no legitimate interest in knowing.” The City’s
caution is a legitimate one that may affect a court’s analysis
9
ORS 181.854(6) requires that a public body notify a public safety officer of
a request for information about the officer that is exempt from disclosure under
ORS 192.501 or 192.502(2) or (3). ORS 192.502(2) provides an exemption for cer-
tain private information such as that kept in a personal or medical file. ORS
192.502(3) provides an exemption to certain personal identifying information
such as dates of birth, and social security and telephone numbers.
296 American Civil Liberties Union v. City of Eugene
depending on the facts in a particular case, but, unless such
personal information is implicated, the fact that an officer’s
identity and alleged conduct is already a matter of public
record demonstrates that a public body has a significantly
diminished interest in protecting the officer’s privacy. See
Oregonian Publishing, 144 Or App at 187 (court consid-
ered fact of prior publicity in holding that records must be
disclosed).
The second aspect of its interest in confidentiality on
which the City relies in this court is an interest in having a
“safe, high quality police department, one that can effectively
review its own actions and provide discipline, evaluation,
and training for its officers.” At trial, to establish that inter-
est, the City relied solely on the existence of the CRB and
the fact that the Eugene Code provisions and the protocols
governing the CRB require that internal affairs investiga-
tion files be provided to the CRB “for its confidential review.”
The City was entitled to rely on the legal arguments and evi-
dence and was not required to present, and did not present,
additional evidence about the nature and significance of that
interest as it applied to the requested records. For instance,
the City did not present evidence that the requested records
would reveal information that would compromise the City’s
efforts to discipline, evaluate, or train its employees, that the
existence of confidential CRB review made those tasks more
effective than they would be if disclosure were required, or
that it would be more difficult for the City to engage in those
tasks in the absence of confidentiality. The City’s failure to
present such evidence does not mean that the City did not
meet its burden of production or persuasion, but it does mean
that the trial court could not consider evidence that the City
did not present.10 Thus, although the trial court was correct
to consider the City’s abstract interest in effective discipline,
evaluation, and training, as shown by its creation of the
CRB, it was that abstract interest alone that the trial court
was entitled to weigh.
10
If a party wishes to argue that the disclosure of particular information will
cause harm, but is hesitant to identify that information because its identification
will itself result in harm, the party is entitled to describe the nature of the infor-
mation and harm generally and ask the trial court to examine the information
in camera.
Cite as 360 Or 269 (2016) 297
The trial court was not, however, required to weigh,
and apparently did not weigh, a third aspect of an interest
in confidentiality. On review in this court, the City describes
its interest in confidentiality as including encouraging wit-
ness candor and protecting witness concerns about potential
retaliation. The City contends that the requested records
include numerous interviews of witnesses and demonstrate
that some witnesses were concerned about participating in
the investigation. The immediate problem with the City’s
contention, however, is that the City did not advance a sim-
ilar contention at trial.11 The City did ask the trial court to
conduct an in camera review of the requested records, but it
did not ask the trial court to determine from those records
that the public body has an interest in encouraging witness
candor and addressing potential witness retaliation, and
the trial court’s findings and conclusions do not indicate
that the trial court reviewed the records for that purpose.
When a party fails to inform a trial court of an argument,
we generally will not address it for the first time in this
court. ORAP 5.45(2); see State v. Lotches, 331 Or 455, 492-
93, 17 P3d 1045 (2000) (court refused to consider argument
that defendant failed to make before trial court). The trial
court therefore did not err in failing to take witness candor
and potential retaliation into consideration in weighing the
competing interests.
B.  Balancing the Competing Interests
In summary, the competing interests presented to
the trial court and that the trial court was required to bal-
ance were, on one side, the public’s interest in transparency
of police department and CRB operations, and, on the other
side, the City’s interest in protecting the privacy of its police
officers and in effectively disciplining, evaluating, and train-
ing those officers. As we have indicated, the trial court made
a number of legal errors in identifying and determining the
significance of those interests and we could remand this
case to that court to conduct the balancing in accordance
with this decision. However, because the historical facts are
11
The City also did not assert that the requested records included informa-
tion subject to exemption under ORS 192.502(4), an exemption for certain infor-
mation submitted to a public body in confidence.
298 American Civil Liberties Union v. City of Eugene
undisputed and balancing requires only legal analysis, we
are as equipped as is the trial court to take on that task.
Given the evidence presented, we conclude for the following
reasons that, in this instance, the public interest in disclo-
sure predominates.
We begin with the public interest in disclosure and
conclude that the public interest in the transparency of gov-
ernment operations is particularly significant when it comes
to the operation of its police departments and the review of
allegations of officer misconduct. Every day we, the public,
ask police officers to patrol our streets and sidewalks to pro-
tect us and to enforce our laws. Those officers carry weapons
and have immense power. Some members of the public fear
the abuse of that power. By the same token, police officers
are themselves vulnerable. Many of those who drive our
streets and walk our sidewalks also carry weapons. Some
officers fear their use of those weapons and their resistance
to legal authority. When our system of justice works as we
expect it to, officers use their authority legitimately, mem-
bers of the public comply with their instructions, and the
dangers of escalating violence are avoided. But for our sys-
tem to work as we expect it to, the public must trust that
officers are using their authority legitimately, and officers
must trust that the people they stop will respond appropri-
ately. Without mutual trust, the police cannot do their work
effectively and the public cannot feel safe.
One way to promote that necessary mutual trust is
to make police practices and procedures transparent and to
make complaints about police misconduct and the discipline
that is or is not meted out open to public inspection. It is
important for the public to know when the police overstep;
it is important for the public to know when they do not. And
it is important that the basis for differing results be known
and understood. Some members of the public are suspicious.
Tragic wrongs have not been addressed. Some members
of the police force feel unfairly accused. Too few members
of the public really appreciate what it takes to do the jobs
that police officers do and the everyday dangers that they
bravely face. As the trial court in this case said, it is laud-
able that the City created the CRB to review police depart-
ment operations and to give the public a role in overseeing
Cite as 360 Or 269 (2016) 299
its disciplinary processes. But, when it comes to complaints
about the use of force and the review of those complaints,
the public interest in oversight is particularly strong. See
Oregonian Publishing, 144 Or App at 187 (concluding that
public interest particularly strong where public employees
accused of misuse and theft of public property).
The evidence in this case established that the pub-
lic had a particular interest in whether the police engaged
in excessive force, and this case was the first case that the
CRB denominated as a “Community Impact Case.” Whether
the police use of force was within city policy and whether the
CRB fulfilled its responsibility to review the police chief’s
recommendations with rigor and without bias were import-
ant matters to the public. The people’s right to inspect public
records is “fundamental,” MacEwan, 226 Or at 46, and in
the circumstances present here, the public interest in trans-
parency carries significant weight.
In contrast, the interests in confidentiality estab-
lished at trial in this case were not equally fundamental.
The public body’s interest in protecting the privacy of offi-
cers whose conduct was questioned was substantially dimin-
ished because the identity of those officers and their alleged
misconduct had already been made a matter of public record.
The City established that it had created the CRB to enable
it to confidentially review allegations of officer misconduct,
but it did not proffer evidence that public inspection of docu-
ments considered by the CRB would affect its ability to effec-
tively discipline, evaluate, or train its officers. We consider
it significant that, when asked for his reasons for declining
to disclose the requested information, the police chief did
not identify any harm that would accrue to city officers or
the City if it were required to disclose the requested infor-
mation. Instead, the police chief testified only that he had
declined to disclose the information on the advice of counsel.
The City made no showing that disclosure posed a risk of
harm to its employees or operations, and it is not our role to
decide whether the public’s interest in monitoring the pub-
lic’s business may be satisfied with some quantum of infor-
mation less than full disclosure. “Our decisions reflect the
preference for a policy of governmental openness in Oregon.”
300 American Civil Liberties Union v. City of Eugene
Jordan, 308 Or at 438. On this record, we conclude that the
public interest in transparency requires disclosure of the
requested documents.
We do, however, harbor a remaining concern about
whether immediate release of the requested documents
could violate individual rights to privacy. In this case, the
City took the position at trial that the requested records
were exempt from disclosure in their entirety, and the trial
court agreed. Perhaps for that reason, the City asserted
only generally that its officers had an interest in privacy; it
did not assert more particularly that disclosure of certain
specific material in those records would violate a particular
individual’s right to privacy or be exempt under another pro-
vision of the Public Records Law intended to protect individ-
ual privacy rights. For instance, ORS 192.502(2) exempts
from disclosure “[i]nformation of a personal nature such as
but not limited to that kept in a personal, medical or similar
file, if public disclosure would constitute an unreasonable
invasion of privacy, unless the public interest * * * requires
disclosure.” And ORS 192.502(3) exempts certain personal
identifying information such as date of birth, and social
security and telephone numbers unless the “public interest
requires disclosure in a particular instance.”
We are cognizant that disclosure of requested records
is not an all-or-nothing proposition. Gray v. Salem-Keizer
School District, 139 Or App 556, 566, 912 P2d 938 (1996).
See ORS 192.505 (requiring public body to separate material
that is exempt from disclosure from that that is not exempt
and make the nonexempt material available for inspection).
Where there are discrete parts of requested documents that
reveal private or personal identifying information unrelated
to the allegations of misconduct at issue, a court may order
that those discrete parts remain confidential. See Jordan, 308
Or at 442-43 (party seeking disclosure failed to meet burden
to overcome entitlement to exemption where information was
of a personal nature and disclosure would constitute unrea-
sonable invasion of privacy). For that reason, we remand this
case to the circuit court to give the City an opportunity to
identify any private or personal identifying information and
request that the court maintain its confidentiality.
Cite as 360 Or 269 (2016) 301
If the City finds that the requested documents
include such information, we expect that the City will file a
request for redaction in the trial court describing the gen-
eral nature of the information that the City seeks to have
redacted and serve that request on ACLU. We also expect
that the City will provide the trial court with a copy of the
requested documents specifically indicating its requested
redactions for the court’s in camera review. After afford-
ing ACLU an opportunity to object to the City’s request to
redact the specified information, and, on request of either
party, holding a hearing, the trial court may order redac-
tion.12 Except as so ordered, the trial court shall then enter
an order requiring the City to disclose the requested docu-
ments in their entirety.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.
12
The trial court is not required to order redaction. On request, the court
must weigh competing interests that the parties identify. We note in that regard
that the exemptions provided by ORS 192.502(2) and (3) are conditional and may
not apply if the public interest requires disclosure.