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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Josephine County judge rules teacher resignation agreement is public

Judge rules resignation agreements public

A Josephine County judge ruled in June 2005 that the Three Rivers School
District must make public a resignation agreement in which the board
paid $10,000 to an instructor who was later barred from teaching in
Oregon. The judge said just because an item is placed in a teacher’s
personnel file does not make the item exempt from public scrutiny. The
document, he said, did not include any of the sensitve, personal privacy
interests protected by state law.

GERALD C. NEUFELD, Circuit Judge
ALLAN M. COON, Circuit Judge
LINDI L. BAKER, Circuit Judge
MICHAEL NEWMAN, Circuit Judge

State of Oregon
Josephine County Circuit Court

June 2, 2005

Mr. Jack L. Orchard
Attorney at Law
One Main Place
101 SW Main Street, Suite 1100
Portland, OR 97204-3219

Ms. Jennifer L. Hungerford
Attorney at Law
615 High Street
Oregon City, OR 97045

RE: Courier Publishing Company v. Three Rivers School District;

Case No. 04CV0631; Motions for Summary Judgment

Dear Counsel:

On May 26, 2005, this Court heard defendant’s Motion for
Summary Judgment and plaintiff’s Cross-Motion for Summary Judgment.
During said hearing, counsel agreed that the facts of this case were not
disputed, and each party claimed that they should receive summary
judgment as a matter of law. The Court took the matter under advisement
for review of the facts, the law, argument, and an in camera review of
the document in question, to wit: the “RESIGNATION AGREEMENT”. I
have come to the conclusion that plaintiff’s Motion for Summary
Judgment must be granted and that defendant’s Motion for Summary
Judgment must be denied.

The law is clear, just because an item is placed in a
teacher’s personnel file does not make the item exempt from public
scrutiny. Defendant urges that the document is exempt pursuant to ORS
342.850 and ORS 192.502(9). The former statute is clearly intended to
protect the privacy interest of school teachers and school districts
from disclosure of teacher evaluations, performance improvement
procedures, in-house disciplinary procedures, and other such internal
activities between teachers and school administrators pertaining to
teacher employment. All such activity, as reflected in the school
district personnel files, is exempt from disclosure pursuant to ORS
192.502(9).

However, pursuant to ORS 192.505, if non-exempt information is
mingled with exempt information, then the public body is required to
separate the exempt and non-exempt material and make the non-exempt
material available for examination. This Court finds that the
“Resignation Agreement” is non-exempt material.

The Resignation Agreement is a settlement agreement between the
Three Rivers School District and one of its teachers, Steven Koller.
This agreement does not recite any of the facts which provides the basis
for the school district seeking the resignation of Mr. Koller. Instead,
the agreement simply specifies the terms, conditions and restrictions
that each party gives and receives in exchange for Mr. Koller resigning
from his position as a teacher with the Three Rivers School District.
While it is not unreasonable for such document to be placed in Mr.
Koller’s personnel file, in order to provide closure to such file; it
is also quite reasonable and logical that the agreement be stored in
other locations within the district in that it pertains to school
district administration and does not recite the any of the sensitive,
personal privacy interests held by Mr. Koller pursuant to ORS 342.850
and 192.502(9).

It is primarily for this reason that the Court will order that
the defendant’s School District exercise its duty under ORS 192.505
and separate the non-exempt Resignation Agreement from the balance of
the exempt Koller personnel file and provide said information to
plaintiff forthwith.

For counsel’s information, and in order to complete the
record, the Court also finds that the School District and Mr. Koller
have both waived the provisions of ORS 342.850 and, 192.502(9) as
alleged by plaintiff in their Memorandum and Affidavits in Support of
their Motion for Summary Judgment.

Mr. Orchard may provide an order and judgment accordingly.

Very truly yours,
Allan H. Coon
Circuit Court Judge
AHC:mp

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Marion Judge orders SAIF to turn over records

orr JUDGE ORDERS SAIF TO ANSWER QUESTIONS, TURN OVER RECORDS 07/03/2004 ======================================================================
THE OREGONIAN
Copyright (c) 2004, The Oregonian Publishing Company
Saturday, July 3, 2004
EDITION: SUNRISE
SECTION: LOCAL STORIES
PAGE: D03 LENGTH: 56 lines
HEADLINE: JUDGE ORDERS SAIF TO ANSWER QUESTIONS, TURN OVER RECORDS
BYLINE: JANIE HAR – The Oregonian
DATELINE: SALEM
TEXT:

Summary: The state-owned workers’ compensation insurer faces a separate hearing for not producing public records

Saif Corp. lost twice Friday when a Marion County judge ordered the state-owned workers’ compensation insurer to answer opponents’ questions and denied the agency’s request to keep certain records confidential.

Both orders are in advance of a hearing next month to determine whether Saif should be held in contempt for not producing records despite an appellate court decision last year ordering many of the agency’s business records to be made public.

The plaintiff is a nonprofit group financed mostly by Saif rival Liberty Northwest and represented by attorney John DiLorenzo.

Last month, DiLorenzo produced an affidavit by a former Saif employee who claimed top agency officials told him to delete public documents, prompting the contempt hearing.

On Friday, Circuit Judge Paul Lipscomb said Saif officials must answer DiLorenzo’s detailed questions about how the agency searched for documents to satisfy his public records requests and a subpoena from the state ethics commission.

DiLorenzo contends Saif officials failed to hand over documents that were produced for the ethics commission, and he wants to know why.

Michael Mueller, Saif’s top attorney, said the possibility that Saif used different methods to search for records has little bearing on the issue of whether the agency “willfully” hid public documents.

“The harm in it is that it allows Mr. DiLorenzo to continue to push this discovery process far outside of the boundaries of what this hearing is really about,” he said.

Lipscomb also ruled that the internal business records of Gard & Gerber, a private company that manages public relations for Saif, must be turned over to DiLorenzo.

A Saif attorneyargued that the documents — which include calendars, memos and notes — are the property of a private third party and are not shared with Saif officials. DiLorenzo contended that communications among Gard & Gerber employees may “indicate what documents were received from Saif or should have gone to Saif.”

“I find it patently unreasonable for Saif to take the position (that) documents that are parked off campus are not subject to public inspection when they involve” a public agency, DiLorenzo said.

Saif officials submitted affidavits to Lipscomb this week rebutting the accusation by Mark Cohen, a former public affairs employee, that top agency officials had ordered him to erase records to avoid making them public.

The officials also submitted a manager’s notes contending that Cohen’s job performance was poor and prompted them to ask him to resign in March.

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