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Bialostosky tells council he never refused redacted versions of Cummings' notes

PMG FILE PHOTO - Rory Bialostosky PMG FILE PHOTO - West Linn Council President Teri Cummings Rory Bialostosky, the plaintiff in a lawsuit against West Linn City Council President Teri Cummings over her council notes, sent an email to the other four members of the council, City Manager Eileen Stein and the Tidings Tuesday, June 4 clarifying some of his positions in the case.

Bialostosky told the Tidings he was notified about certain points of discussion that concerned his case in a recent City Council executive session (executive sessions are closed to the public) and felt the need to clarify these points as they were not an accurate representation of his positions.

Bialostosky heard second-hand that the council discussed the lawsuit in an executive session and he was concerned that his position was not accurately reflected. The main points of concern were his positions on whether he would accept redacted versions of Cummings' notes and whether he would narrow his original request for all of her notes taken as a councilor, he said.

"I want all to know that I have not refused to allow redactions (something I can't legally do) to the records which I requested from Councilor Cummings nor have I permanently refused to lessen the scope of my records request that is the subject of this case," his email states. "I have consistently maintained in correspondence with the City Attorney's Office that I will be happy to reduce the scope of my request after the public's right to inspect the notes of an elected official is established."

Bialostosky said he has never been offered redacted versions of the notes to refuse.

This lawsuit came about after Bialostosky made two public records requests to see notes Cummings took in her duties as a member of the City Council (Cummings has been on the Council a total of nine years, serving three separate times dating back to 2004).

Neither request resulted in Bialostosky's access to the notes.

As for the scope of his request, Bialostosky's email goes on to say he is willing to reduce it.

Taking into account the costs of a legal team reviewing and redacting all of Cummings notes, Bialostosky said he recently made a partial summary judgement that would allow him to narrow the scope of the request if he won.

"The Court will, if I prevail on the motion, declare that the notes are public records and that I have a right to inspect them, but the Court will not order the notes to be turned over at that time via injunctive relief. Once this right has been declared, whether it be at summary judgment or trial, I plan to negotiate the scope and reduce it," his email explained.

A summary judgement is a way for a court to rule in favor of one side and against the other without a full trial. Bialostosky said a summary judgement will likely take place sometime in June.

He originally asked for the notes because he feels Cummings has ignored the interests of the majority of West Linn citizens. He said he also feels this council is very dysfunctional and believes Cummings' notes might hold some clues as to why.

"This has been the worst council. I know West Linn has had its problems but it's been quite bad in terms of meeting length, how many more meetings they have, what they accomplish," Bialostosky said. "It's my right to check the notes to understand why things are going so south."

His email also explained his reluctance to negotiate privately with Cummings.

"This is a transparency-related proceeding and the public has a right to know about what is going on. I don't want the parties to be able to say one thing behind closed doors in mediation with a non-disclosure agreement, while maintaining an entirely different stance on the issue publicly in court."

Bialostosky has maintained since he originally made his requests that public officials, including the governor, frequently hand over their notes when they are requested as public record.

In official response to Bialostosky's requests for admissions in April, Cummings stated through the court, "The records sought contain defendant's (Cummings) personal notes created solely for the defendant's convenience and or to refresh defendant's memory. The records sought are maintained in a way indicating a private purpose and they were not circulated or intended for distribution within West Linn City Council channels."

In hoping to prove that Cummings should have known to keep her personal notes separate from notes pertaining to her work as a councilor, Bialostosky has requested training materials from the League of Oregon Cities (LOC). He hopes that, as a public official, these trainings will have taught Cummings to keep notes ready for public inspection.

"I will be taking a closer look at the trainings and LOC materials as I've issued a subpoena to the LOC, but a preliminary review of online materials such as the City Handbook aides the argument that handwritten notes are public records," his email stated.

Bialostosky is unsure what consequences his email will have but says he simply wanted to clear up any misinformation about his positions in the case.

"I would imagine that my email could set off a big brouhaha because it means that there's leakers but no one that was in there directly leaked to me," he said. "I wanted to just set it straight so that everybody knows my position."

City Attorney Tim Ramis, who is representing Cummings in the case, declined to comment for this article.

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