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FILED: November 3, 2010

IN THE COURT OF APPEALS OF THE STATE OF OREGON

PORT OF PORTLAND,
a port district,

Plaintiff-Respondent,

v.

OREGON CENTER FOR ENVIRONMENTAL HEALTH,
a domestic nonprofit corporation;
and JANE H. HARRIS,

Defendants-Appellants.

Multnomah County Circuit Court
060606786
A137929

Eric J. Bloch, Judge.

Argued and submitted on September 24, 2009.

Maureen Leonard argued the cause and filed the briefs for appellants.

William F. Gary argued the cause for respondent. With him on the brief were James E. Mountain, Jr., C. Robert Steringer, and Harrang Long Gary Rudnick, P.C.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Ortega, Judge.

ORTEGA, J.

Affirmed.

ORTEGA, J.

Defendants appeal a general judgment that granted declaratory relief to plaintiff and declared material exempt from disclosure under the Inspection of Public Records Law, ORS 192.410 to 192.505.

The material at issue is, in essence, a joint defense agreement between several entities that were designated by the federal Environmental Protection Agency (EPA) as potentially responsible parties (PRPs) for the cleanup of an area in the lower Willamette River commonly referred to as the Portland Harbor Superfund Site. Defendants requested that plaintiff Port of Portland (Port) disclose the agreement pursuant to the public records law. The trial court determined that the agreement was exempt from disclosure under the general exemption for material "otherwise privileged" under Oregon law. Specifically, the trial court concluded that the agreement fell within Oregon's attorney-client privilege for confidential communications among parties "in a matter of common interest." We affirm.

I. FACTS

The following facts are undisputed. In 2000, the EPA listed a portion of the lower Willamette River on the National Priorities List under Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). CERCLA mandates a remedial investigation and feasibility study (investigation) of listed sites, which serves to assess site conditions and evaluate alternatives to the extent necessary to select a remedy for the pollution. 40 CFR