City Council changed notes rules in middle of case
It's almost as if the West Linn City Council foresaw the ruling that would say notes of local public officials are not public records two months before Judge Henry Breithaupt shocked public records advocates with his verdict.
In late May, while the council was amending its rules that had been adopted in October 2018, it decided to strike language that clearly stated that the notes of a councilor were public record.
Before the changes were made, the public records section of the council rules read: "The disposition of public records created or received by Councilors shall be in accordance with Oregon Public Records Law. Written information incidental to the official duties of a member of the City Council, including electronic mail messages, notes, memos and calendars (e.g., Outlook calendars and 'Day timers') are public records and are subject to disclosure under the Public Records Law."
The new rules state: "A public record is any writing with information about the conduct of public business that is prepared, owned, used, or retained by a public body. This Council and any board, department, or commission thereof are considered a public body and thus must comply with Oregon's Public Records Law (ORS 192.410-192.505)."
In May, Council President Teri Cummings was facing a lawsuit filed by 19-year-old West Linn citizen Rory Bialostosky. Bialostosky sued Cummings after making two records requests for Cummings' council notes, which were both denied.
Breithaupt ruled in Cummings' favor in Clackamas County Circuit Court July 17, ruling that records of local elected officials do not have to be disclosed to the public.
City Attorney Tim Ramis, who represented Cummings in the case against Bialostosky, along with other members of his law firm, offered his reasoning on why he decided to change the public records language in his draft of the amended rules.
"The choice we made was, do we just give a reference to the statute, or do we give some sort of lengthy explanation? And we thought one of those was terse and the other was too much, so this is the Goldilocks choice of a short explanation," Ramis said at the May 20 council meeting. "We've tried to, in the public records section, say 'this is what a public record is,' and then remind everybody that the public records law applies broadly to various entities."
He also noted that the rules could be clarified further once a judge ruled in the case of Cummings and Bialostosky.
"It will, of course, apply more broadly, if a court interprets the statute more broadly," Ramis said. "It leaves open the question that we're litigating at the moment."
Oregon Public Records Advocate Ginger McCall has a different view of the statute.
"I think that it is an unprecedented interpretation of the law, of an area of the law that has been pretty well settled, that everyone agrees that city councilors are a public body for the purpose of the public records law," McCall said. "It was a little bit confusing to hear the court say something different."
At a council training session in April, Cummings asked a representative from the League of Oregon Cities if other cities have policies for keeping notes. The representative explained that some cities have a system for city staff to keep track of officials' notes while others have rules for how the councilors should keep the notes, emphasizing that some cities have thought this out a little more thoroughly than others.
During the May meeting, Councilor Jules Walters expressed her firm belief that the notes of a councilor are public record.
"From the very first training I got from the League of Oregon Cities, we talked about individual councilors' notes being public records," she said. "I know many, many elected officials go through that type of training and everybody I've talked to agrees with that."
This mimics the sentiment of the five former West Linn councilors who supported Bialostosky by stating that while serving on the council, they knew their notes were public record and would have turned them in if asked to.
Cummings has expressed frustration at the lack of clear policies for taking and keeping notes.
"We have not had any policy whatsoever on how to keep our notes," Cummings said. "What to do about whether you add more to your notes or change them or if it's on a little piece of paper, do you transfer to another? Does that change your notes? For how long a period of time you keep your notes? Would you turn them in to be archived, so the city can be the custodian? How do you verify or establish what records you have so you don't get accused of getting rid of things or altering things?"
Mayor Russ Axelrod said Cummings was making the issue more complicated than necessary.
"Save all the records and turn them in. That's what we were told at training," Axelrod said.
For Walters, organization is key. She told the Tidings she has a specific notebook in which she takes notes concerning council business but often finds herself making notes on the backs of agendas or other handouts.
"At home, I have anything I've written on in files along with other pieces of information that I need and those are either filed by meeting date or by the subject that they are glommed in with," she said.
The importance of keeping notes so that they may be made available to the public was made clear to her at her very first training she said. Walters also said that this process is a key part of transparency.
"To build the public's trust you need accountability and transparency and part of that is being open with your work as a public official. I'm doing the work of the people. They have the right to inspect my notes."
Since Briethaupt's ruling in the hearing, citizens, lawyers and public records advocates have expressed concern about what it means for transparency among local elected officials.
"If you can't get records from an elected official that are not in the custody of a public body, that would be horrible," said Duane Bosworth, an attorney who has worked public records and other First Amendment cases for over 30 years. "And we've all understood that where the public record is concerned, it doesn't matter. It could be privately held, but that doesn't make it any less of a public record, if it's a writing that relates to the conduct of the council."
McCall felt similarly, saying, "This would have a very negative impact on government transparency and it's counter to all of the training that I've been doing, that the state archives have been doing, and I believe that the Oregon Department of Justice has been doing."
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