Records of city councilors, mayors, sheriffs not necessarily subject to Oregon public records law, judge rules

The Oregonian – by Betsy Hammond

Records that local government officials in Oregon create in the course of their government work are not public records and do not have to be disclosed unless they are “owned, used or retained” by a wider public body such as a city council or school district, an Oregon judge has ruled.

A West Linn teenager had asked a court to force West Linn City Councilor Teri Cummings to make public the notes she made during council sessions and other official meetings. But Judge Henry C. Breithaupt, a retired Oregon Tax Court judge presiding as a senior judge in Clackamas County Circuit Court, ruled orally last week that the public is not entitled them. 

Breithaupt spelled out his rationale Wednesday in a “letter of opinion”sent to Cummings’ lawyer and the teen, Rory Bialostosky, who represented himself in the case. In it, the judge explained that the way legislators defined who is subject to Oregon’s public records law when they wrote the law in the 1970s clearly includes individual state officials. But he wrote that that definition, as he interprets it, excludes records held by local government officials and only applies to records kept by local government entities such as commissions, councils, agencies and the like.

Oregon’s public records advocate, Ginger McCall, said Thursday that the judge’s position is at odds with the way she, the state archivist, the attorney general’s office, the Oregon League of Cities and “everybody” has interpreted the law and trained local officials to comply with it in the nearly five decades since it went into effect. She said she hopes the ruling is quickly appealed and expects the Court of Appeals will overturn it.

The law defines public bodies subject to disclosure requirements as including “every state officer, agency, department, division, bureau, board and commission; every county and city governing body, school district, special district, municipal corporation, and any board, department, commission, council, or agency thereof; and any other public agency of this state.” It only uses the word “officer” in connection with state government, not local ones.

Bialostoskywho is 19, argued that Cummings, in her role as a city councilor, is an agent of the West Linn City Council and thus is covered by the law. But the judge rejected that argument, saying state lawmakers clearly and intentionally applied the law only to records of local government entities, not individuals.

The judge did acknowledge that, in a 2018 ruling, Multnomah County Circuit Court Judge Ben Souede ruled that the mayor of Portland, as an individual local official, is clearly a “public body” for purposes of the records law. In making that determination, Souede cited a 1994 Oregon Supreme Court decision that explored at length what does and does not constitute a “public body” subject to Oregon’s public records law. In that decision, the Supreme Court instituted a multi-pronged test examining such factors as whether the body in question has public employee status, is created by a government body, receives government funding or support to do its work and carries out government-type functions.

But Breithaupt wrote that Souede’s finding that Portland Mayor Ted Wheeler was a “public body” subject to the records law was not an essential element of Souede’s ruling and may have been wrong.

Jack Orchard, a lawyer who represents the Oregon Newspaper Publishers Association and frequently advises journalists using the public records law, said he sees the ambiguity in the law that led Breithaupt to his conclusion. He said Breithaupt is a good and thoughtful judge, but that the outcome of his ruling is “confusing.”

“The question is, is that what the legislature really intended?” Orchard said. “From a policy point, I don’t see the distinction.” In terms of having to make public records related to governing, Orchard asked, “What difference does it make if you’re on the state Board of Education versus a member of the West Linn school board?”

Cummings hailed the decision for “clarifying an important legal point” for public officials and the public. She said releasing her notes could have posed legal problems because her jottings about city business, dating back many years, contained information that governments are prohibited from making public such as constituents’ private medical information and minors’ cell phone numbers.

Bialostosky said he is worried about the broader implications of the judge’s decision and said he is seeking legal advice about whether to appeal it to the Oregon Court of Appeals.

“I am deeply concerned about this becoming a loophole for elected officials below the state level to withhold records in their custody,” he said. “Under this newfound argument, it opens the door for electeds to say ‘I’m not a public body’ and withhold records that they themselves created in the course of the conduct of the public’s business.”

Duane Bosworth, a lawyer who has specialized in Oregon public records law for decades and has at times represented The Oregonian/OregonLive on such matters, said the case should be appealed because the judge’s decision is wrong. He said lawyers for the city of West Linn persuaded Breithaupt to misread the statute, which Bosworth contends defines public records as “any writing that contains information relating to the conduct of the public’s business.”

Where the records are stored, including on a city official’s private cell phone, in a file in a sheriff’s office or other locations controlled by a lone local government official, is irrelevant, Bosworth contends.

The decision “should be appealed because it is a bad precedent and a very important issue about whether you can get public records from an individual public servant,” he said.

McCall, the state’s public records expert, agreed. “I would be somewhat concerned about other localities attempting to exploit this decision,” she said.

If it is not appealed or if an appeal fails to get a different result, McCall said, there would likely be a political consensus to get the law changed, McCall said.

Before the judge issued his ruling, Bialostosky said that he talked to Senate Judiciary Chairman Floyd Prozanski, a Eugene Democrat, about the possibility of adding wording to the state records law to clarify it applies to all elected local government officials. He has since made appointments to speak with other lawmakers as well, he said.

Rep. Karin Power, D-Milwaukie, is a member of Oregon’s public records advisory panel and a leading lawmaker on public records issues. She told The Oregonian/OregonLive Wednesday that if the ruling is not appealed, she also will consider adding clarifying language to the public records law.

She recalled that when she was elected to the Milwaukie City Council, on which she served until 2017, Oregon League of Cities provided public record training that advised her and other newly elected local officials that “our notes, email correspondence, and other records would all be considered public records.”

“I’d imagine there’s a number of stakeholders who have operated under the assumption that all elected officials are subject to public records laws, and would have an interest in seeing the law strengthened, if ultimately necessary,” Power said.

Cummings said she also is unsure about the decision’s implications. She sought a narrow decision: that a single council member’s jottings during meetings purely to aid her personal recollection were not public records — not that any record she and other local officials might create in the course of their deliberations should be kept private.

She said Bialostosky asked her for all her notes from nine years she was in office – a request so broad and potentially fraught she said she had to push back in court. “He put us between a rock and a hard place,” she said.

Before she was elected to the West Linn council, she noted, she successfully pressed the city to lower some of the fees it charged for producing public records to make it more affordable for members of the public to obtain them.

“I really do believe in transparency for the public to be able to see how decision-makers arrived at their decisions,” she said. In the wake of Breithaupt’s ruling, she said, “There are definitively some questions left in the room of, ‘Is this what we want?’”

— Betsy Hammond;; @OregonianPol

2 thoughts on “Records of city councilors, mayors, sheriffs not necessarily subject to Oregon public records law, judge rules

  1. “Under this newfound argument, it opens the door for electeds to say ‘I’m not a public body’ and withhold records that they themselves created in the course of the conduct of the public’s business.”

    That is true… they’re not.

    They work for the U.S. Corporation, NOT the public.

    That aside, check out what the maroons in CA are attempting to institute…

    WTF??? They can’t do that sh#t!!!

  2. YALL SHUT UP!!!

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