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District attorneys in Baker County and Clackamas County order disclosure of notices of tort claims
Baker County District Attorney orders school district to disclose tort claim records
Matthew B. Shirtcliff, District Attorney for Baker County
Court House
1995 Third Street – Suite 320
Baker City, Oregon 97814
Main office: (5431) 523-8205
Support Enforcement: (541) 523-6414
FAX: (541) 523-3913
Public Records Disclosure Request
Order
On January 8, 2003 Baker City Herald editor, Mark Furman
formally requested that the Baker County District Attorney conduct a
review of the Baker School District 5J’s denial of the Baker City
Herald’s request to review records. ORS 192.450 governs such a review.
The burden of proof is on the entity denying the disclosure to
demonstrate why the records should not be disclosed.
There are two requests made by the Baker City Herald in relation
to disclosure. The Herald seeks any information, including a possible
tort claim or other legal proceeding, regarding complaints made by
Dennis or Lisa Beyer related to the employment of David Giles with the
school district. The second request is for records pertaining to the
district’s investigation of any complaints that led to Mr. Giles
resignation.
The Baker School District 5J cites O.R.S. 192.501(1), the
exemption for records pertaining to litigation, as its basis for denying
disclosure of any tort claim notice. O.R.S. 192.501(1) does create a
exemption for records pertaining to litigation; however, the Oregon
Court of Appeals in Lane County School District v. Parks. 55 Or App 416,
(1981), interpreted this statute and created a rule of law which must be
reviewed in determining if a record falls within the litigation
exemption or must be disclosed.
The Court of Appeals, in Parks considered three factors in
reviewing a trial courts findings:
1. Was litigation reasonably likely to occur.
2. Did the records sought contain data which when disclosed,
might reveal a cause of action against the party or the extent or
magnitude of a cause of action, or will the records being sought
materially assist persons prosecuting such litigation against the party,
3. Do the records sought contain data developed or compiled by
the body for which litigation is anticipated for use in litigation.
At first glance it might appear the school district is correct
that the exemption would apply as a tort claim notice clearly reveals a
potential cause of action or the magnitude of one. However, the tort
claim notice does not meet the third part of the test.
In order for the record to be exempt it must be compiled,
created or developed by the party anticipating the litigation. This
would typically be a document or record the party might create
internally to prepare for litigation. In this situation, the party
anticipating litigation, the Baker School District 5J, did not create,
compile or develop the record. Instead it was created by the party who
may or may not pursue a cause of action against the school district.
This tort claim notice is not a document created by the school district
in anticipation of litigation therefore it is not exempt from disclosure
pursuant to O.R.S. 192.501(1).
The second request for disclosure made by the Baker City Herald
is for information related to the school district’s investigation into
any complaints against Mr. Giles. O.R.S. 192.501(12) creates an
exemption from disclosure of records contained in personnel discipline
actions, or materials or documents supporting that action. This
exemption only applies to completed disciplinary actions when a sanction
is imposed. This exemption does not apply when an employee resigns
during an employer investigation or in lieu of disciplinary action. [See
Portland v. Rice, 308 Or 118 (1989) and The Attorney General’s Public
Records and Meetings Manual p. 38]
David Giles resigned his employment on October 7, 2002 and it
appears that occurred prior to any completed personnel discipline
action. Normally this would preclude the exemption and the investigatory
records compiled by the district would be subject to disclosure.
However, because the Teachers Standards and Practices Commission has
instituted an investigation into this matter O.R.S. 342.176(4) is
triggered. This statute makes the documents and materials used in the
investigation and the report of the executive director confidential and
not subject to public inspection unless the commission makes a final
determination that the person charged had violated O.R.S. 342.143 or
O.R.S. 342.175. Because records compiled by the school district in its
investigation have been forwarded to the Teachers Standards and
Practices Commission they are deemed confidential pursuant to O.R.S.
342.176(4).
O.R.S. 192.502(9) becomes triggered by the investigation of the
Teachers Standards and Practices Commission. O.R.S. 192.502(9) is a
general exemption statute which indicates that records are exempt if the
record or information the disclosure of which is prohibited or
restricted or otherwise made confidential or privileged under Oregon
law. Here, other Oregon law O.R.S. 342.176(4) makes the records
confidential if they are used in the investigation by the Teachers
Standards and Practices Commission. Because the Teachers Standards and
Practices Commission is currently investigating this matter using
records compiled by the school district those records are exempt from
disclosure at this time.
CONCLUSION
The tort claim notice filed by Dennis or Lisa Beyer against the
Baker School District 5J is not exempt from disclosure under Oregon’s
public records statutes and shall be made available for inspection by
the Baker City Herald. Personnel records of Dave Giles relating to this
matter are exempt from disclosure at this time.
So ordered on
January 10, 2003
(signature)
Matthew B. Shirtcliff
District Attorney for Baker County
Clackamas County District Attorney orders county to disclose tort claim records
John S. Foote, District Attorney for Clackamas County
Clackamas County Courthouse
807 Main Street, Room 7
Oregon City, Oregon 97045
503 655-8431
FAX 503 650-8943
www.co.clackamas.or.us/da/
September 9, 2003
Noelle Crombie, Oregonian Newspaper Staff Writer
365 Warner Milne Road, Suite 110
P O Box 2500
Oregon City, Oregon 97045
James M. Coleman
Clackamas County Counsel
906 Main Street
Oregon City, Oregon, 97045
RE: Public Record Petition
Public Record Holder: James M. Coleman, Clackamas County Counsel
Petitioner: Noelle Crombie, Oregonian Newspaper Staff Writer
Date of Request: September 2, 2003
Dear Noelle Crombie and James M. Coleman:
This letter is the District Attorney’s order on your petition
for disclosure of records under the Oregon Public Records Law, ORS
192.410 to 192.505.
FINDINGS OF FACT
1. On September 2, 2003, Oregonian staff writer Noelle Crombie
(Petitioner) verbally requested a tort claim notice filed on behalf of
Damon Coates from Assistant County Counsel Ed McGlone (Public Record
Holder). Said request was denied by Public Record Holder on that same
date.
2. By letter dated and received by the District Attorney’s
Office on September 2, 2003, Petitioner requested disclosure of said
tort claim notice.
3. By fax transmission dated September 4, 2003 and received by
the District Attorney’s Office September 5, 2003, Petitioner cited the
2001 Oregon Attorney General’s Public Records and Meetings Manual
claiming that a tort claim notice does not meet the statutory exemption
for public records pertaining to litigation.
By letter dated September 9, 2003 and received by fax
transmission on that same date, Public Record Holder neither confirmed
or denied the existence of any tort claim notices and provided no
records for review. The Public Record Holder claimed ORS 192.501(1),
Records Pertaining to Litigation, as authority for its position.
CONCLUSIONS OF LAW
1. The Public Records Law is primarily a disclosure rather than
a confidentiality law. The general policy of the law favors public
access to government records. A public body that denies a records
inspection request has the burden of proving that the requested
information is exempt from disclosure. ATTORNEY GENERAL’S PUBLIC RECORDS
AND MEETING MANUAL (1999) at 18.
2. ORS 192.501(1) conditionally exempts:
Records of a public body pertaining to litigation to which the
public body is a party if the complaint has been filed, or if the
complaint has not been filed, if the public body shows that such
litigation is reasonably likely to occur. This exemption does not apply
to litigation which has been concluded, and nothing in this subsection
shall limit any right or opportunity granted by discovery or deposition
statutes to litigation or potential litigation[.]
The exemption is a narrow one and pertains only to records
“compiled or acquired by the public body for use in ongoing litigation
or *** litigation [that] is reasonably likely to occur.” The exemption
applies only to records developed or compiled by the public body for use
in the litigation. A notice of tort claim against the public body is an
indication that litigation is likely to occur. The statute exempts notes
or reports <cm+NT(thomas-m): originally underlined; here italicized
-NT>(emphasis added) prepared in response to such a notice. ATTORNEY
GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL (1999) AT 24-25; ATTORNEY
GENERAL’S PUBLIC RECORDS AND MEETINGS MANUAL (2001) AT 26-27.
DISCUSSION AND RULING
A telephone call placed by this office to the Attorney General’s
Office on September 9, 2003 has confirmed that there are no reported
cases or Attorney General’s opinions on point regarding the central
issue of whether a tort claim notice, standing alone, is exempt from
disclosure pursuant to ORS 192.501(1). Records “pertaining to
litigation” are exempted by that statute.
ORS 30.275 requires that a notice of claim must be given to a
public body prior to instituting an action for loss or injury against a
public body. A formal notice of a claim is a written communication from
a claimant or representative of a claimant ORS 30.275(4). The written
notice is notice of the litigation, it is not of the litigation itself
such as records or notes that might be generated by the public body and
exempted by ORS 192.501(1). By way of analogy, a complaint filed by a
party claiming damages against a public body would be public notice of a
legal proceeding and therefore a public record. It follows that the
notice that such a claim will be asserted against a public body would
therefore also constitute a public record.
The general policy governing Public Records Law favors public
access to government records. It is primarily a disclosure rather than a
confidentiality law. We cannot find that a tort claims notice is the
type of public records exempted form disclosure under ORS 192.501(1).
IT IS HEREBY ORDERED that to the extent that said tort claim
notice exists that petitioner’s request is allowed.
Sincerely,
(signature)
David F. Paul, #81332
Deputy District Attorney
DFP/lc
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Jackson County District Attorney orders school district to release names, responses of residents who commented on health curriculum
Jackson County, Oregon
District Attorney’s Office
Mark Huddleston
District Attorney
To: Cathy Noah and Tim Gerking
Fax: 776-4376 772-7249
Subject: public records petition
Date: December 2, 2005
Ms. Noah and Mr. Gerking:
This letter constitutes my order in response to Ms. Noah’s public records petition requesting that I review the Medford School District’s (District) denial of a public records request made by the Mail Tribune (Tribune) on November 23, 2005. The request was for the release of “the e-mail and written comments on the proposed health curriculum, as well as the names of the people commenting.” The District responded on November 29, 2005, agreeing to furnish to the Tribune the written and e-mail comments received by the District. However the District indicated that it would “redact the names and e- mail addresses from the comments, because such information is personal in nature and disclosure of such information would have a chilling effect on the Districts future ability to receive communication from the community on such important and sensitive matters.”
There is no question but that the Medford School District is a public body subject to the Oregon Public Records Act. ORS 192.420. “The Public Records Law is primarily a disclosure law, rather than a confidentiality law. Exemptions …are limited in their nature and scope of application because the general policy of the Jaw favors public access to government records.” Attorney General’s Public Records and Meetings Manual, p.21 (2004) citing Jordan v. MVD, 308 Or 433, 438 (1989). It is also well-settled that when examining any request for a record kept by a public body, the presumption is in favor of disclosure unless there is a clear and overriding reason not to do so. Coos County v. Department of Fish & Wildlife, 86 Or App 168, 173 (1987).
In his letter to me of December 1, 2005, Mr. Gerking indicates that there were 57 e-mails received by the District. The letter indicated that those e-mails were not solicited by the District. However, in a telephone conversation with me on December 2, 2005, Mr.- Gerking advised that he had looked further into the matter and told me that the District had received a total of 67 e-mails on this matter as of December 2nd.
Of the 67 e-mails, 58 were received through a web page that the District had appended to its home page, which had a link to the proposed curriculum, and invited people to send comments to the District about the proposed changes. Mr. Gerking further advised that on November 22nd, that web page was changed to indicate that it was optional for the person sending in comments to identify that person’s name and/or e- mail address. Of the 45 comments that were received by the District between November 15 and November 22, 2005, all were identified by name and e-mail address. Of the 13 comments received by the District through that web page after November 22nd, only two people did not leave either a name or an e-mail address. Mr. Gerking also advised that 4 e-mails were sent directly to Superintendent Long, and 5 others came to the District through the home page site for the District. Those 9 e-mails all came with the sender’s name and e-mail address identified.
In his December 1st letter, Mr. Gerking cites ORS 192.502(2), the personal privacy exemption, as authority for the District’s position. That statutory exemption allows the public body to decline to disclose public records if:
1. the information is of a personal nature;
2. the disclosure of the information would constitute an unreasonable invasion of privacy; and
3. there is no overriding public interest in disclosure.
Jordan, supra at 440 et. seq. Attorney General’s Public Records and Meetings Manual, p.58 et. seq- (2004).
I analyze these three questions below:
1. Are names and e-mail addresses personal in nature?
Personal information “includes all information ‘relating to a particular person,’ such as a person’s home address, age, weight and residential telephone number.” Attorney General’s Public Records and Meetings Manual, p.59 (2004), citing Jordan, supra- I agree with Mr. Gerking’s analysis that the names and e-mail addresses of the persons who submitted e-mail comments to the District are “personal” within the meaning of the Oregon Public Records laws.
2. Would the disclosure of such personal information constitute an unreasonable invasion of privacy?
The Attorney General’s Public Records and Meetings Manual notes that whether disclosure of personal information constitutes an unreasonable invasion of privacy involves an objective test. “An invasion of privacy will be unreasonable where Ian ordinary reasonable person would deem {it} highly offensive.” Attorney General’s Public Records and Meetings Manual, p.60 (2004), citing Jordan, supra at 441. In weighing this factor, the public body may consider how the entity requesting the information will use the information if released. Jordan, supra at 444.
In this case, the Tribune indicated in its November 23, 2005 e-mail to the District that receiving the names and e-mail addresses of the persons submitting comments to the District would allow the Tribune to “gauge the tenor of the comments and see who is involved in the process. We would always contact people independently to verify their comments before publishing them -” From this, it is apparent that the Tribune may choose to attribute by name, specific comments that individuals submitted to the District concerning the proposed revision to the health curriculum.
In determining whether releasing the names and e-mail address in this case would constitute an unreasonable invasion of privacy, the primary question is whether a reasonable person who submitted an e-mail comment would consider it “highly offensive” to have those comments publicly printed in the Tribune, with an attribution as to the name of the person who submitted the comment. Certainly the people who cared enough about this issue to submit written comments to the District meant what they said and intended that the District consider their input. Anonymous comments are not given nearly the weight as comments coming from an identified constituent. The question then is whether persons submitting comments did so with a reasonable expectation that those comments would not be publicly attributed to them. If such was the expectation, the final question is whether it would be offensive to the reasonable person to have the comments published with the attribution, regardless of the expectations at the time of submission.
While the subject matter in question may be politically and emotionally charged, I doubt that the people who submitted the comments would be unwilling to have the comments published and identified as having coming from them. The situation is not dissimilar to making a comment at a school board meeting. Those comments are public by their very nature, and a reasonable person would not be surprised, or offended, to find those comments quoted in the next day’s paper. Absent some assurance on the part of the District that comments submitted on this topic would remain confidential, there is no reason to believe that a reasonable person would have expected that comments submitted might not be used in a public forum of some sort.
I believe it is relevant to this issue to note that of the 13 people who submitted e-mail comments to the District through the redesigned link which allowed them to opt not to list their name or e-mail address, only two did not provide either piece of information.
Accordingly, I find that the District has failed to meet its burden that disclosure of the names and e-mail addresses of persons who submitted comments to the District would constitute an unreasonable invasion of privacy.
3. Is there is an overriding public interest in disclosure?
Although my decision noted above decides the issue in favor of the Tribune, I feel that the final test should also be addressed. The District cites the “chilling effect” that disclosure of this information might have on people who in the future may wish to weigh in on matters of concern to the District. I note that the Oregon Public Record Act does contain a provision for public bodies to limit the disclosure of information “submitted to the public body in confidence and not otherwise required by law to be submitted, where such information should reasonably be considered confidential, the public body has obliged itself in good faith not to disclose the information, and when the public interest would suffer by disclosure.” ORS 192.502(4). I do not address whether such a procedure could have been utilized by the District in this case to solicit confidential submissions, as a public interest test is still required under this section of the Act. However, the fact that such an approach was potentially available and was not utilized lends further support to the fact that e-mailed comments to the District were not solicited with a reasonable expectation on the part of the District that they were confidential in nature.
I believe there is a strong public interest in disclosure of the names of people who choose to submit comments to a public body. As indicated above, those comments are normally submitted with the intent of influencing the deliberative process that a public body is undertaking. In the case of the District, the decision whether to adopt the proposed curriculum will be made by the school board. Board members are elected by popular vote of the people within the District. Just as voters are entitled to know who is contributing money to a political candidate, so too are people within the District entitled to know who is saying what about this issue. Ordering disclosure in this instance will allow the public, as well as the Tribune, to “gauge the tenor of the comments and see who is involved in the process.” I believe that public interest outweighs any chilling effect such disclosure may have.
Accordingly, the Tribune’s Petition for disclosure of public records is hereby granted. The District is ordered to make available for inspection by the Tribune the names and e-mail addresses of the persons who submitted e-mail comments to the District regarding the proposed health curriculum. The District has seven days to comply with this order unless during that time period the District Institutes proceedings under ORS 192.450(2) for injunctive or declaratory relief in the Circuit Court for the State of Oregon for Jackson County.
This order is effective December 2, 2005.
Mark Huddleston
District Attorney
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- District attorneys in Baker County and Clackamas County order disclosure of notices of tort claims
- Josephine County judge rules teacher resignation agreement is public
- Multnomah District Attorney rules attorney-client privilege doesn’t apply to factual information