Open Oregon opposes indefinite attorney-client privilege (HB 2478 – 2021 session)

The Oregon legislature is currently debating HB 2478, a proposal that would make documents under attorney-client privilege secret indefinitely. Currently, following a court of appeals ruling, the window is 25 years. Open Oregon believes this should remain the standard in the state. What follows is an excerpt of our testimony for a hearing of the House Committee on Rules on April 1.

Oregon’s 25-year sunset on the attorney-client privilege exemption is a recognition that government business is for the ultimate benefit of the public at-large.

Public bodies and those working in the public interest are unique clients. The work they do has the expectation of being in the public interest. No public client should expect to keep hidden forever the details of matters in the public interest.

Maintaining this privilege indefinitely will mean that many records — even those without privileged information — will need expensive attorney review in order to release. This will have a chilling effect on the public’s ability to learn about the workings of its government — even many decades after the fact.

The dawn of the information age, approximately 25 years ago, means that very soon the volume of emails and other digital information that will need to be reviewed for this potential privilege will soon overwhelm archivists and transparency advocates.

Maintaining the 25-year sunset is the best of both worlds. Government officials receive privilege for the pertinent duration of the activity and the public at large maintains their right to know. 

Thank you for providing the opportunity for public debate on this proposal. This is a complicated issue that deserves greater study and discussion due to its potential for unforeseen consequences. 

 

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