Court backs West Linn city councilor in records case
A judge serving in Clackamas County Circuit Court ruled in favor of West Linn City Council President Teri Cummings Wednesday, July 17, in a lawsuit filed by 19-year-old West Linn resident Rory Bialostosky.
The 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—the first was filed through the official City channels, and the second with Cummings herself because the City did not have the records—resulted in Bialostosky's access to the notes. Cummings was represented by the law firm of West Linn City Attorney Tim Ramis in the case while Bialostosky represented himself.
Under the judge's ruling, Cummings will not have to disclose her notes, nor will any elected official below the state level have to disclose any records, according to Bialostosky.
"It was a blow for transparency," Bialostosky said of the judge's decision.
The crux of the ruling hinged on the interpretation of a public body. According to the state of Oregon, "'Public record' includes any writing that contains information relating to the conduct of the public's business, including but not limited to court records, mortgages, and deed records, prepared, owned, used or retained by a public body regardless of physical form or characteristics."
A public body, according to the state is, "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."
Bialostosky argued that as a member of a public body, the West Linn City Council, Cumming's notes were subject to the law. Judge Henry Briethaupt disagreed, saying that a member of a public body is not the same as the body itself.
Duane Bosworth, an attorney who has worked public records and other First Amendment cases for over 30 years, said he was disappointed in the argument made on behalf of Cummings.
"The argument that was made to the judge is that defendant, Ms. Cummings, would have to be either a public body, which is silly, or only a state elected officer, so only those people would have to disclose public records, but in my opinion that's just wrong and of course there's no case that supports that but moreover, it would make part of the public records law nonsense," Bosworth said. "...It's wrong to say that someone must either be a public body or a state officer and going down the path of saying whether or not she's a public body is just plain wrong."
Cummings wants people to know that withholding her notes doesn't mean she has anything to hide in them.
"It's all being portrayed and painted as if I want to hide my records. I wasn't wanting to hide my records. I had no way of knowing how I could give them over even," Cummings said.
She worried that because her notes contain some sensitive material, she would be in violation of public records law for disclosing information that is not meant to be public.
It is common practice for the City and other public agencies to redact sensitive material from public records before making them available.
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."
Bialostosky 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.
"It's my right to check the notes to understand why things are going so south," Bialostosky said, citing the recent trend of overly long meetings and unresolved council issues.
While most city councils of a similar size typically have two to three meetings each month, the West Linn City Council had five meetings in March, nine in April, four in May and five in June (including joint meetings and special sessions). As for meeting length, they typically run hours longer than indicated on the agenda.
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. Cummings, however feels differently.
"I do not know anybody that's ever had to hand in their notes, because it's not really being done. The League of Oregon Cities might be telling you you need be careful what you right down. I think that's a great disservice," Cummings said. "What the League of Oregon Cities should have done with that $7 million they get from the cities every year is just spend a little bit on asking a judge for a legal opinion on that and then quit telling people to be afraid about what they do with their notes or if we have to keep our notes."
Cummings has also argued that the City of West Linn has no specific procedure for taking and maintaining notes.
"Does the city have a policy for all the boards and commissions and so forth, every single member for keeping their notes for how they should be produced, for how they should be maintained by whom or for how long? Does the city have a policy? Was I breaking some rule? I mean a policy, a policy and a procedure?" she asked.
Prior to recent revisions, West Linn City Council rules did instruct that notes were to be considered public record.
Despite the lack of a clear policy for councilors in regards to keeping or saving notes, five former West Linn city councilors have gone on record saying they knew their notes were public record and would have handed them over.
In early July, these former councilors signed perjury declarations in support of Bialostosky in Clackamas County Circuit Court. A perjury declaration is a statement a person can make which they swear to be true under the penalty of perjury.
In the declarations, each former councilor states, "While serving in my official capacity as a West Linn City Councilor, I took notes at times. I considered these notes to be public records under Oregon law. I knew they were not my private, personal notes."
The declarations go on to state, "I understood that any person had a right to inspect my notes that I took while acting in an official capacity as a West Linn City Councilor. I was trained to act under that standard in trainings that I received as part of my role as a city councilor."
Bialostosky said that even though he lost Wednesday, his battle for transparency among elected officials is not over. He plans to appeal the ruling soon.
"The fight goes forward to make sure that the people of Oregon are able to hold the decision-makers of Oregon accountable for their decisions and we'll work to remedy the problem that arose in court yesterday," Bialostosky said.
He hopes his appeal will overturn Briethaupt's ruling and set a precedent more favorable to transparency.
"It was one bad day in court for the people of Oregon but going forward, I think the law will be cleaned up and it will be made clear that elected officials are subject to it," Bialostosky said. "I don't think it's ambiguous but there was enough room for the defense council to make a case that put a spin on it."
"It would be contrary to the spirit of public records that absent a particular exemption, every record that is related to the conduct of the public's business must be disclosed," Bosworth said of the appeal. "That's the central premise of all public records law and to carve out these records would be a bad precedent."
In addition to his appeal, Bialostosky said he will begin working on a legislative fix to the problem and make clear that public records law applies even to city councilors.
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