Oregon judge brings wisdom and kindness to precedent-setting ruling
When I first heard that two young fellows were demanding to see West Linn City Councilor Teri Cummings' personal notebooks I thought "That is just not how public records requests work!"
Right away I looked up the regulations and quickly confirmed to my own satisfaction that Rory Bialostosky and David Baker were mixing apples and oranges. Unfortunately, Cumming was soon put into a super-sized Catch-22 as Bialostosky escalated matters by hauling her and the city to court over her nine years worth of notebooks. The Associated Press picking up an Oregonian article and thus, Bialostosky's story was spread across the country complete with a sensational but inaccurate title saying "Teen sues West Linn City Council president for hiding public records." But those were not public records, and there was no hiding about it.
While it may be relatively easy to manipulate the media and public opinion by sending out fiery press releases and loading up Facebook posts, it turns out that it is far harder to manipulate the courts and the law. Clackamas Circuit Court Judge Breithaupt recently ruled that Councilor Cumming personal notes are not public records according Oregon Law, based upon the city not being custodian of those records AND Cummings not being a State Elected Official nor a municipal agency nor a public body herself. There was no rocket science to this ruling, just reading what the statutes said.
Judge Breithaupt's ruling appears to be precedent setting across Oregon in clarifying that the memory notes of persons like City Councilors, commissioners, and board members are not public records, with notable exceptions evident in Oregon Law for state level elected officials. Meaning the many older folks who use notes as memory aids can keep on doing that.
Our public agencies devote much time to recording and retrieving reams of ACTUAL public records like agency emails, meeting minutes, and staff reports. Cumming's foot print in the real public record is massive, based on decades of service as a Neighborhood Association Officer, Planning Commissioner and City Councilor. The legitimate public record shows her to be a tireless advocate for citizens' right to have a collective voice in their future, a staunch opponent of urbanizing nearby Stafford Hamlet, and a forward thinking climate advocate pushing for a free local shuttle bus service such as the one Forest Grove operates.
Cummings' entire public record in the custody of the city has always been fair game for requests, except for a small fraction which the city must withhold by privacy rules or executive privilege to protect the city's interest. If the judge had ruled that Cummings private memory notes were public records, the city would have had to had to redact (black out) any privileged information from the entire nine years at great expense. Real public records requests are required to be reasonable, meaning not impose an unfair burden on the agencies, thus required to be reasonably specific.
Regardless of my passion for the topic, I cannot reasonably request the entire NASA record for the Apollo 11 moonshot, and if I did, I would receive a form or directive requiring me be reasonably specific about what in the universe I was after. In this way the limited resources of a public agency are protected from being overwhelmed by overly broad requests, while the public's right to know is still preserved.
Speaking of moonshots, I can't help but visualize Bialostosky's latest lawsuit as a rocket that never got off the ground, but that generated billows of smoke as it toppled side-wise due to a design flaw. His Facebook says he will appeal, meaning the extra time and kindness Judge Breithaupt spent to help him understand the law did little good. Not that any such act of kindness is ever really a waste.
The media damage done to Cummings reputation has been unwarranted, but Cummings' record of accomplishment stands firm, such her key role in our city's powerful Charter protections for our parks, protections emulated by other cities. After close to 30 years, Cummings' public record of contribution stands above the smoke, and her many acts of kindness across the city do not go unremembered. Sincere service and kindness are never really a waste.
Rebecca Adams is a resident of the Bolton neighborhood in West Linn.
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