Reasonable requests would have been satisfied
Clackamas Circuit Court Judge Breithaupt has clarified an important legal point for Oregon citizens about whether a member of a local government agency is a "Public Body" or not. His answer is no. Meaning, the personal notes of a member of a City Council, board or commission, department or other body made solely to aid the member's personal memory are not a public record because the notes are not being prepared, used or retained by a public body.
Mr. Rory Bialostosky and Mr. David Baker's public records request was for "any and all" of my notebooks "in their original form so as to ensure originality prior to copies being made." The City could not fulfill their request because the City did not have my notebooks. Cities are not required to collect or retain personal notes. Had their request been reasonable, they might have seen a redacted version of my notebooks months ago.
Instead, I got accused of "hiding my notes" in the news. This was not fair because I was never at liberty to hand over my notes in their original form. Persons in my position are required by law to protect all legally exempt information from public disclosure. Normally, the City Recorder would send an estimated cost if records need to be legally redacted, to be paid in advance by the requestor. The cost of legally redacting every single notebook from nine years of service on the City Council, dating back to 2005, could be quite expensive.
The City attempted to settle the matter of redactions and the scope of the request with Mr. Bialostosky on several occasions, but each time, he insisted on obtaining an order of the Court before agreeing to anything other than their original request. Because there were no clear legal precedents in Oregon as to whether an individual member of the Council is a "public body" or not, the City supported obtaining clarification from the Court, any responsibilities Cities might have to require Board, Commission, Committee and Council members to turn in their personal notes for retention by the City and what would be reasonably required.
I went to court last week, ready to accept Judge Briethaupt's ruling, either way, regarding July 17, 2019 Summary Judgement case #: 19C11216. After hearing each point of law laid out so clearly and carefully by the judge, I could not imagine coming to a different conclusion.
This lawsuit has been quite a learning experience. On the bright side, we can now have a better understanding of Oregon Public Records disclosure laws, regarding personal notes.
Teri Cummings is currently West Linn Council President
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