Records plaintiff files appeal of July ruling favoring councilor
Rory Bialostosky's lawsuit against West Linn City Council President Teri Cummings over a records request for her council notes might get another look, this time from the Oregon Court of Appeals. On Sept. 12, attorneys representing Bialostosky filed an appeal of the July ruling from Clackamas County Circuit Court, which favored Cummings.
State and local government officials, including Ginger McCall, Oregon's public records advocate who last week announced her resignation from the post, were taken aback by the judges decision, which ruled that notes of local elected officials are not public records.
The crux of the initial ruling hinged on the judge's 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."
Clackamas County Court deemed that Cummings was simply a member of a public body and not a public body herself, meaning records prepared, owned, used or retained by her are not public records.
This ruling contradicted what many local elected officials had assumed: that the notes they took in their official capacity could be disclosed upon request.
Before recent revisions, even the West Linn City Council rules stated that notes of a councilor were considered public record. The council removed that language from the rules about two months after Bialostosky initially filed his lawsuit.
Earlier this summer, five former West Linn City Councilors filed perjury declarations in support of Bialostosky stating that they knew their notes were public record and would have handed them over if they were requested.
Cummings has maintained that she did not turn in her notes when they were originally requested, not because she wanted to hide the information in them, but because the City's lack of a policy for taking and maintaining notes made her unsure of how to go about submitting them.
She said she worried about the sensitive material included in her notes, though it is common practice for the City and other public agencies to redact sensitive material before granting them to a requestor for inspection.
Bialostosky originally requested Cummings' notes because he feels the council has been dysfunctional and believes she has done a poor job of representing the best interests of West Linn citizens. As the leader of the council's "de facto" majority, he feels Cummings has had the biggest part to play in the dysfunction.
Bialostosky said he was grateful to get a second opinion on that matter, noting that the appeals process is an integral part of the judicial system. He said that a second opinion is so significant in a case like this because it has the potential to affect other elected officials and records requestors.
"It's an important principle that notes of an official be accessible he said,"
He stated he doesn't want to see other officials use this case as an argument to note hand their notes over.
Cummings had not returned a request for comment at the time this article was published.
This is a developing story and will be updated as the Tidings learns more.
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