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Judge Rules to Protect Portland Superfund Talks

(CN) - Portland does not have to release an agreement it crafted with "partially responsible parties" involved in cleaning up toxic waste at Portland Harbor because the document is protected by attorney-client privilege, the Oregon Appeals Court ruled.

After the Environmental Protection Agency sent liability notices in connection to a Superfund site along the Willamette River, Portland and other entities banded together to consult with their lawyers about a joint defense agreement. Their discussions covered coordinating their investigation, preparing for litigation and developing a cost-sharing formula.

When the Oregon Center for Environmental Health petitioned Portland to release the document under public records law, Portland filed for declaratory judgment exempting the agreement from disclosure.

The environmentalists said the information it sought in particular - on cost allocation - was "policy" advice and not privileged information, but Multnomah County Circuit Court sided with the Portland and the Salem-based Oregon Court of Appeals agreed.

Noting that there was "an inherent tension" between public records law and attorney-client privilege, Judge Darleen Ortega wrote for the appellate court that the document in question met threshold for privilege.

Ortega wrote that all the parties involved agreed to maintain the confidentiality of the document, which represented "the sum of negotiations and communications between" attorneys whose clients were anticipating legal liability.

Refuting another argument by the environmentalists, the court added that the parties clearly have a common interest since they all were notified of potential cleanup liability and share common adversaries.

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