Appeals court throws out 2019 public records decision favoring West Linn councilor
The notes a city councilor takes in the course of their official duties being subject to public disclosure now has judicial precedent in Oregon after an April 27 appeals court ruling.
The Oregon Court of Appeals reversed and remanded a 2019 decision from Clackamas County Circuit Court, which stated that the notes of then-West Linn City Councilor Teri Cummings were not public record.
The circuit court decision, which resulted from unanswered public records requests by Rory Bialostosky for Cummings' council notes — before he was elected to the West Linn council — drew ire from First Amendment lawyers and Oregon's Public Records Advocate Ginger McCall.
Bialostosky, who was elected to the City Council in 2020, as Cummings' term ended, praised the appellate court decision.
"Today's decision by the Court of Appeals was a landmark victory for government transparency in our state," Bialostosky wrote in an email to Pamplin Media Group. "The Court established, contrary to the argument of former Councilor Cummings, that local elected officials across Oregon are indeed subject to public records requests from citizens. The decision codifies the right of all Oregonians to know what their local elected officials are doing on the job, which is extremely important for transparency and accountability."
After neither of Bialostosky's requests for Cummings' notes resulted in his access to the documents, he asked the court to rule they were public record and grant him access.
Throughout the trial court proceedings, Cummings received representation from the office of West Linn's city attorney while Bialostosky, then 19 years old, represented himself.
After the initial decision in 2019, Bialostosky received pro-bono representation for the appeal from a Portland law office.
Nathan Morales, Bialostosky's attorney, explained that the recent appeals court ruling — that an individual local elected official is considered a "public body" for the purposes of the public records law — is now law in the state of Oregon.
"It will be a great relief to have this matter finally resolved," Cummings wrote via email in response to the appellate decision. "I'm sure the question of how cities and other government agencies will manage to collect and archive all handwritten notes taken by elected and appointed officials, will not be easy to solve."
In their opinion, judges from the Oregon Court of Appeals rebutted the circuit court's acceptance of Cummings' argument that she was not a "public body" for the purposes of Oregon's public records law.
"Oregon has a 'strong and enduring policy that public records and governmental activities be open to the public,'" wrote presiding judge Ramón A Pagán. "Reading the definition of 'public body' narrowly, as defendant would have us do, would drastically shrink the public's access to the records of its public officials."
Bialostosky has previously stated that he initially requested Cummings' notes because he wanted clues as to why the council was so dysfunctional at the time. "It's my right to check the notes to understand why things are going so south," Bialostosky told Pamplin Media Group in 2019, citing the trend of overly long meetings and unresolved council issues.
Cummings maintained that she was not trying to hide anything by not handing the notes over.
"Sometimes people I met, over the years, told me about their medical problems as the reason why they were concerned about certain matters. People also often gave me their contact information so I could get back to them," she said via email after the appeals court decision. "Sometimes I also jotted down what we discussed during Executive Sessions in order to be able to recall it the next time we met on that topic. I have a large collection of notebooks full of notes scribbled down during the course of the three terms I served on City Council from 2005 to 2020."
Chris Dolan, an attorney from Jordan Ramis PC, which serves as West Linn's city attorney office, represented Cummings throughout trial court and appeals proceedings. He did not return a request for comment after the Appellate Court decision.
The city could decide to ask the Oregon Supreme Court to review the Appeals Court decision. If the city does not seek further review, the case would return to trial court, where a judge could ask Cummings to disclose the notes.
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