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At issue: Do city Commissioner Chloe Eudaly's online posts discussing her job count as public records?

TRIBUNE FILE PHOTO - City Commissioner Chloe Eudaly's campaign relied heavily on social media, but the rules for its use changed when she became a public official. Portland City Commissioner Chloe Eudaly is under scrutiny for the use of her social media accounts.

News outlets including the Tribune reported on several inflammatory statements by Eudaly leaked to Twitter last week, but bigger questions are being raised about whether her use of social media skirts Oregon Public Records Law.

Eudaly's Chief of Staff Marshall Runkel firmly believes that the commissioner's personal social media accounts "are not a public record. That's just a false accusation."

Oregon Public Records Law defines a public record as one that "…includes any writing that contains information relating to the conduct of the public's business ..."

This can extend to modern technology. The city of Portland has previously released text messages relating to the conduct of public business. A 2016 handbook from the Secretary of State's office says that social media speech is a public record if it is used to conduct public business and if the content is unique — not posted anywhere else.

State Archivist Mary Beth Herkert weighed in, in a Nov. 17 piece in The Oregonian, saying that if Eudaly was discussing her work on Facebook, "By definition, you're putting it out for the public to know."

Runkel says it would be a stretch to consider Eudaly's opinions about journalists, citizens testifying at public hearings and a post about a city job opening as government actions.

"Her opinion about what a story in the newspaper would say would not constitute an official government action," Runkel said, though he added: "I think this area of law is not very well-defined."

Courts are beginning to wade in on what the First Amendment protects under the widespread use of social media.

In a June 19 decision, the U.S. Supreme Court said the First Amendment fundamentally protects access to a forum in which everyone can speak and listen on an ongoing basis.

"Today, one of the most important places to exchange views is cyberspace, particularly social media…," reads the decision in Packingham vs. North Carolina.

Eudaly has also been criticized for missing parts of council meetings that are explicitly set aside for the exchange of views.

Mimi German, a frequent testifier critical of the police and Eudaly, said that in the last couple months Eudaly has been absent during her testimony.

"I noticed. It became habitual," German writes in an email to the Tribune. "It was a sign that she was protesting my right to petition my government by walking out on me. I don't believe she has that right."

Eudaly was absent for last Wednesday's City Council meeting, which, coupled with Mayor Ted Wheeler's absence, meant the council did not have enough people to vote on certain items.

Runkel said that that morning Eudaly "had other business and she was not feeling well."

German also shared a thread from Eudaly's Facebook page in which the commissioner complained about German's testimony and friends chime in with comments such as "lawyer up and sue the b----."

"I feel bullied," German said. "I've been having nightmares about her coming at me or sending people to my house."

In public testimony, German often makes her own inflammatory statements, including wearing a hood she made to resemble those used by Immigration Customs and Enforcement and accusing Eudaly of supporting rape culture.

The court may soon have to make a determination on whether it believes the threads are public record. German made a public records request Nov. 13 for any threads discussing her from any of Eudaly's Facebook pages.

The Tribune also made a request Nov. 17 for the list of people Eudaly has blocked from interacting on her Facebook and Twitter accounts.

Elected officials enjoy a unique appeals process in Oregon. While agencies' decisions to deny records requests can be appealed to the district attorney or attorney general, the only recourse a records requester has to a denial from an elected official is the court.

"They are welcome to file suit," Runkel said.

Shasta Kearns Moore
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