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The initial ruling said West Linn city councilor's notes were not public record

PMG FILE PHOTO - BIALOSTOSKY PMG FILE PHOTO - CUMMINGS As West Linn city councilors call for government transparency in a case regarding racism in the West Linn Police Department, one councilor seems to be simultaneously fighting against transparency for local elected officials, according to West Linn resident Rory Bialostosky.

One year ago, Bialostosky sued Council President Teri Cummings over two unanswered records requests for her council notes.

After losing the case in July, Bialostosky, a college student, filed an appeal of the judge's ruling, which drew ire from some citizens, lawyers and public records advocates. Bialostosky called the ruling a blow to transparency and said it set a precedent for local elected officials to withhold records in their custody.

On March 11, exactly one year after Bialostosky filed his initial suit against Cummings, his lawyers sent opening briefs for the case to the Oregon Court of Appeals. Though Bialostosky represented himself in the lawsuit, attorneys from the law firm Perkins Coie offered him their services for the appeal process. Cummings did not return requests for comment.

In the appeal, Bialostosky's lawyers Julia Markley and Nathan Morales lay out what they see as the shortcomings of the initial ruling: the judge narrowly interpreted the term "public body" and improperly applied its interpretation to disclosure laws.

In the briefs, Markley and Morales wrote that state statutes define, "'public record' in part as any writing that is 'prepared, owned, used or retained by a public body.'"

They also cite a statute which defines "public body" as "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."

The briefs also point out that City Attorney Tim Ramis, who has represented Cummings throughout the case, instructed members of citizen advisory groups (which serve the council) that "'public records' include 'any type of record that contains any information relating to the conduct of the public's business,' such as 'handwritten notes.'"

They also note that at the time Bialostosky's lawsuit was filed, the West Linn City Council rules stipulated that notes of councilors were, indeed, public records. The council has since modified that rule.

In the briefs, Markley and Morales suggest that part of the judge's ruling hinged on the fact that he tricked Bialostosky into saying that Cummings was not an agent of the city.

"During oral argument on the motion, plaintiff, still self-represented, fielded a number of questions from the trial court," the attorneys wrote. "In one exchange, plaintiff attempted to explain his argument that defendant is an agent of the City Council,' but, after a series of confusing questions, the court got plaintiff to state that defendant is not 'an agent of the City of West Linn.'"

Bialostosky said he has been thinking about councilors' recent calls for transparency on the Michael Fesser matter — the council has pushed for release of several executive session tapes where the case was discussed — in light of his lawsuit.

New and damning details of Fesser's 2017 arrest by WLPD have come to light in the past month, casting the police department and the city in a dark shadow.

"I'm glad that they're being transparent about the Fesser case but then the juxtaposition, or the hypocrisy, is at the same time Councilor Cummings, funded and consented to by a majority of the council, is going to be trying to gut the transparency law, gut the law that allows the release of those records," he said. "Only in West Linn does this sort of hypocritical juxtaposition happen."

According to Bialostosky, now that his legal team has filed briefs, Cummings' side has 49 days to respond, but can choose to extend that if necessary.

Once Cummings' attorneys — supplied by the city of West Linn — have filed their argument with the Oregon Court of Appeals, Bialostosky will have 21 days to respond, but he also will be given an opportunity to extend that timeframe. He hopes that in the next few months the court will have scheduled oral arguments for the case.

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