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Citing attorney-client privilege, DA sides with fire district in records dispute

The Columbia County District Attorney’s Office determined last week an investigative report into complaints brought against a former division chief at Columbia River Fire and Rescue does not have to be disclosed for public review, concluding the report is protected by attorney-client privilege.

The six-page response from Columbia County District Attorney Stephen Atchison dated Aug. 10 found that even though the investigative report, called the “Hepp report,” qualifies for release under a provision of Oregon’s Public Records Law, the potential for a legal claim, coupled with the investigation being coordinated by attorneys within the district, exempted its release.

FILE PHOTO - Atchison “Given the facts of this case ... I find that I must rule that the Hepp report is covered by attorney-client privilege, the privilege has not been waived by CRFR and the report is exempt from disclosure,” Atchison states in his response.

An attorney for St. Helens Professional Fire Fighters Local 3215 initially filed a complaint against former Division Chief Ron Youngberg with the law firm that represents CRFR, Bullard Law. In response, Bullard Law hired Hillsboro’s David Hepp Consulting and Investigations to explore the claims in the complaint, according to information in Atchison’s response and other correspondences with the District Attorney’s Office.

David Hepp Consulting delivered its findings to the attorney for the fire district, who in turn briefed CRFR Fire Chief Jay Tappan and at least one CRFR board member on the results.

The Spotlight in February filed a request under Oregon’s records law with CRFR to receive copies of the Hepp report and was denied, prompting a followup petition with the District Attorney’s Office.

In reply to the Spotlight’s petition, CRFR argued it did not have to comply with the request, citing a personnel disciplinary exemption under the records law and because it was an attorney-client privileged document.

CRFR PHOTO - Youngberg Atchison said CRFR’s claims about it being exempt under the records law were unfounded. Under the law, documents associated with investigations into the alleged wrongdoing by public employees can be disclosed if the employee quits prior to formal discipline.

Tappan argued the investigation had concluded prior to Youngberg’s retirement on Jan. 22 and that he had been disciplined by being placed on paid administrative leave.

“Contrary to the assertions put forth by Mr. Swan ... the investigation was indeed completed prior to Division Chief Youngberg’s retirement announcement and some disciplinary sanctions had been imposed prior to that date,” Tappan’s response to Atchison states.

Atchison determined that wasn’t the case, however. Following a review of CRFR’s casefile on Youngberg, he determined CRFR-imposed discipline against the former division chief had not concluded up to the time he retired.

CRFR PHOTO - Tappan "The evidence in this case does not, in my opinion, support that claim by CRFR,” Atchison writes in his response. “Youngberg resigned before any disciplinary action could be “completed” and the exemption under the [records law] does not protect the Hepp report from disclosure.”

The Spotlight is not the only agency that had requested the report. According to Atchison’s review, an attorney for the fire fighters union requested a copy of the Hepp report from CRFR attorneys and was also denied on the grounds it is an attorney-client privileged document.