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.

Bialostosky, who 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.