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 investigation 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 disclosure, 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 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. 

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 circuit 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, conditional. 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 interest 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 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 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 information 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 argument 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 following 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 transparency of, and public confidence in, the police complaint process. In general, the civilian review board 

shall evaluate the work of the independent police auditor, and may review completed complaint investigations involving sworn police employees to provide comment, 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 independent 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 arresting [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 surname 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 himself 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 continued 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 documents 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 personnel investigation arising from the May 30, 2008[,] incident.” 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 exemption to disclosure. However, the court explained, once the 

City met that burden, the burden “[shifted] to the requesting 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 testimony 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 reviewing the records in the Van Ornum case because of its 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.” In particular, Fidanque said, ACLU was concerned 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 witness 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 independent oversight of the police department in police misconduct 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 minutes 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 decision. The court began by explaining that the evidence suggested 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 quality 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 safeguard “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 oversight 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 exception applies.”

However, the court went on to explain, even if the 

City had the burden of establishing an exemption to disclosure, 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 determining 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 balance 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 interest 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 maintaining 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 disclosure. 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 public 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 interest 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 public 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 disclosure of public records and the legal standard that an appellate 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 presumption 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 principles 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 “lawful 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 statute 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 honestly, 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 qualification.” Id. at 44. As a result, the court explained, in determining 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 servants 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 unreasonable 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 “continued 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 enactment 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 disclosure. 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 legislature’s view that members of the public are entitled to information that will facilitate their understanding of how public business is conducted,’” and also cited the fact that the 

teachers had been investigated for misuse and theft of public property as indicating that the public’s interest in disclosure was significant. Oregonian Publishing, 144 Or App at 

187. In describing the competing “private” interest in confidentiality, 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 disclosure when a public safety employee is not subjected to discipline.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 applicability 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 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 information would adversely affect the confidence of the public in the public body.”

When it enacted ORS 181.854 in 1999, the legislature 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 considering 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 personnel 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 applicability of the conditional exemption provided by ORS 181.854(3), 

the appropriate question for a trial court is whether the public interest in disclosure outweighs the competing interest in 

confidentiality, with the presumption in favor of disclosure.

3. Determination of the nature and significance of competing interests

We also think it evident from the Court of Appeals 

decision in Oregonian Publishing that a trial court’s determination 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 competing 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 compilation and dissemination of certain motor vehicle information 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 complaints could become public knowledge because the defendant had not presented evidence to establish that point. 

Similarly, the Court of Appeals has considered factual evidence, or the lack of such evidence, in assessing the competing 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 contractual 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 categories of documents, the nature of the competing interests 

may be determined as a matter of law. For others, the parties 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 interest 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 disclosure 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 confidentiality, or, if a party wishes to claim that the interest 

propounded is of greater or lesser import given the particular 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 process 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 deciding 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 “citizen’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 accruing 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 disclosure, 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 relative weight of competing interests is not a scale that measures whether a fact is or is not true; it is a scale that determines 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 roadblock 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 particular 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 process itself constitutes a factual determination or an exercise 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 historical 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 application 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 competing 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 identified 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 arguments 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 considered 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 analysis, 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 evidence 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 “ensuring 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 public 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 acknowledges, 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 “independent” 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 performing 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 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 information would adversely affect the confidence of the public in the public body.”

Thus, ORS 181.854(4)(c) anticipates the formation of citizen 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 interest 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 information 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 interest 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 oversight, 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 information 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 public already had substantial information about police departmental and CRB operations was a proper consideration in 

the trial court’s analysis, but we do not agree that it necessarily 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 promoting 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 discipline, evaluation, and training for its officers; and (3) an 

interest in encouraging witness candor and protecting witness concerns about potential retaliation. We will consider 

each in turn, but before we do, we take up ACLU’s threshold argument that the trial court committed legal error in 

considering any aspect of the City’s interest in confidentiality 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 confidentiality 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 evidence of its interests given the particular factual circumstances 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 certain 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 privacy of officers whose alleged misconduct is not substantiated. 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 without 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 officer’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 protecting its officers’ privacy. ACLU contends that the evidence at trial indicated that that interest was diminished 

in this case because the identity of the officers whose conduct was in question already had been disclosed. The evidence 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 misconduct, 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 contain 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 certain 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 considered 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 interest, 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 investigation files be provided to the CRB “for its confidential review.” 

The City was entitled to rely on the legal arguments and evidence 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 information 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 witness 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 similar 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 balance 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 training 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 information subject to exemption under ORS 192.502(4), an exemption for certain information 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 disclosure predominates.

We begin with the public interest in disclosure and 

conclude that the public interest in the transparency of government 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 protect 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, members of the public comply with their instructions, and the 

dangers of escalating violence are avoided. But for our system 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 appropriately. 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 laudable that the City created the CRB to review police department 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 public 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 important 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 transparency carries significant weight.

In contrast, the interests in confidentiality established at trial in this case were not equally fundamental. 

The public body’s interest in protecting the privacy of officers whose conduct was questioned was substantially diminished 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 documents considered by the CRB would affect its ability to effectively 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 information. 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 public’s business may be satisfied with some quantum of information 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 provision of the Public Records Law intended to protect individual 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 unreasonable 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 general 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 affording 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 redaction.12 Except as so ordered, the trial court shall then enter 

an order requiring the City to disclose the requested documents 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.