Oregon Court of Appeals rules Portland Police disciplinary records in Kendra James case are open

FILED: June 1, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

CITY OF PORTLAND,
an Oregon municipal corporation,

Appellant,

v.

OREGONIAN PUBLISHING COMPANY,

Respondent.

0310-11712; A124262

Appeal from Circuit Court, Multnomah County.

Michael C. Zusman, Judge pro tempore.

Argued and submitted February 1, 2005.

Harry Auerbach argued the cause for appellant. On the brief was Tracy Pool Reeve.

Charles F. Hinkle argued the cause and filed the brief for respondent.

Before Wollheim, Presiding Judge, and Edmonds* and Schuman, Judges.

SCHUMAN, J.

Affirmed.

*Edmonds, J., vice Ceniceros, S. J.

SCHUMAN, J.

The Circuit Court of Multnomah County, affirming an order of the county’s district attorney, ordered the City of Portland to produce certain documents relevant to the investigation and discipline of a police officer who killed a civilian during a traffic stop. The city argues that the benefit flowing to the public from nondisclosure–namely, that public employees will be more likely to evaluate their supervisors, subordinates, and colleagues with candor if they know the evaluation will not be made public–clearly outweighs the benefit flowing to the public from disclosure itself. ORS 192.502(1). We disagree with the city, and therefore we affirm.

The following facts were included in material that has already been disclosed to the public, and they are not disputed in this appeal. On May 5, 2003, Portland Police Officer Bean made a traffic stop of a car carrying a driver and two passengers. One passenger, Kendra James, was riding in the back seat. When Bean discovered that the driver could not produce a license and that both passengers had outstanding arrest warrants, he decided to take all three occupants into custody. Officer McCollister, the police officer whose disciplinary investigation generated the documents at issue in this case, and another officer answered Bean’s call for assistance. After the driver was taken into custody, Bean attempted to arrest James. She locked the door and refused to get out of the car. When Bean tried to reach through an open window to unlock the door, James climbed from the back seat into the front seat and turned on the ignition. All three officers ran toward the driver’s door. McCollister arrived first. As he tried to pull James out, he leaned into the car, putting most of his body weight inside.

James struggled. McCollister attempted to subdue her with pepper spray, but either the cannister malfunctioned or he did not find the trigger. He then tried to gain control of her with a “hair hold,” but that tactic failed because James was wearing a wig-like hair weave that came off in McCollister’s hand. At that point, James shifted the car into gear and started to drive away. Because of his position halfway inside the car, McCollister believed that, unless he could stop the car, he would fall out and be either dragged or run over. He unholstered his gun and ordered James to turn off the ignition. When James did not comply, McCollister then shot her one time. McCollister then fell out of the car unhurt. When the car stopped a few yards away, the officers removed James, laid her on the pavement, and handcuffed her. She died shortly thereafter.

An internal Portland Police Bureau investigation of McCollister ensued, resulting in the imposition of a disciplinary sanction: 900 hours unpaid leave. After the city disclosed the contents of the letter from then Chief of Police Mark Kroeker to McCollister informing him of the sanction, the Oregonian Publishing Company (the Oregonian), invoking the Oregon Public Records Law, ORS 192.410 to 192.505, formally requested that the City of Portland produce other documents related to the shooting. Specifically, the Oregonian requested “the documents that fill the gap between the criminal investigation and the disciplinary letter to McCollister.” The city refused, and the Oregonian exercised its statutory right to obtain review by the Multnomah County District Attorney. ORS 192.450 – 192.460. District Attorney Schrunk issued a letter ordering the city to produce the requested records with a few specified redactions. The city then filed this action in Multnomah County Circuit Court, id., seeking a declaration that the city was not required to disclose the documents. Both parties moved for summary judgment. The court granted the Oregonian’s and denied the city’s. The city appeals.

Under ORS 192.420(1), “Every person has a right to inspect any public record of a public body in this state, except as otherwise expressly provided by ORS 192.501 to 192.505.” The city argues that it need not disclose the documents at issue in this case because of the exemption in ORS 192.502(1):

“Communications within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to any final agency determination of policy or action. This exemption shall not apply unless the public body shows that in the particular instance the public interest in encouraging frank communication between officials and employees of public bodies clearly outweighs the public interest in disclosure.” (1)

When a public body withholds public records from disclosure, that body carries the burden of sustaining that action on appeal. ORS 192.490(1); Kluge v. Oregon State Bar, 172 Or App 452, 455, 19 P3d 938 (2001). Therefore, the city has the burden in this case.

That burden is daunting. Oregon has a “strong and enduring policy that public records and governmental activities be open to the public,” Jordan v. MVD, 308 Or 433, 438, 781 P2d 1203 (1989), a policy embodied in a statutory presumption that documents will be disclosed to the public. ORS 192.420. Exemptions from disclosure are to be narrowly construed. Oregonian Publishing v. Portland School Dist. No. 1J, 144 Or App 180, 184, 925 P2d 591 (1996), aff’d on other grounds, 329 Or 393, 987 P2d 480 (1999). Further, the exemption at issue in this case does not impose an evenly weighted balancing test; the city must prove that the public interest in nondisclosure “clearly” outweighs the interest in disclosure.

The city relies primarily on the affidavit of the Portland Chief of Police, Derrick Foxworth, (2) in which he makes the following argument:

“I strongly believe that in order to encourage greater candor and critical self-evaluation, Bureau members need to feel comfortable that honest, candid assessments will be used solely to improve the performance of a particular employee (through disciplinary action should that be necessary) or to assist in improving the performance of the Bureau as a whole. In my opinion, public disclosure of records of the type at issue in this case would have a chilling effect on the free flow of frank, uninhibited advice and self-critical observations within the Bureau.”

In addition, Foxworth’s affidavit cites a report by the Police Assessment Resource Commission (PARC) concluding that there was anecdotal evidence that Bureau members were “hesitant to be critical” in after action reports and that “[p]eople are afraid to ask hard questions. People are afraid to hurt feelings.”

Although we do not disagree that most people may be more willing to make candid statements when they know the statements will remain confidential, we are unpersuaded that, in this case, the benefits of confidentiality clearly outweigh the benefits of disclosure. First, we observe generally that, although people may be more candid when they know that their statements will not be disclosed to the public and, in particular, to the people about whom the statements are made, they are also more likely to be vindictive, careless, or speculation–and therefore unreliable.

Second, and more importantly, like the district attorney and the trial court, we have reviewed the requested documents in camera and find that they contain nothing that could cause a chilling effect of such magnitude as to outweigh the benefit to be reaped by allowing the public to determine whether a full, frank, and thorough investigation of this highly inflammatory and widely reported incident occurred. Because our decision in this case may not be the last word, we will not moot the potential for a meaningful Supreme Court review by disclosing the contents of the documents. We can, however, describe them generally.

They consist of three items: an “after action memorandum” from Officer McCollister’s supervisor, Commander Bret Smith, addressed to then Assistant Chief Foxworth; a “confidential memorandum” from the “Review Level Committee” containing recommendations to Chief Kroeker; and logs kept by the Review Level Committee reflecting how each member voted on questions relating to whether McCollister violated Police Bureau procedures and what his sanction should be. We describe each in turn.

Smith, Commander of the North Precinct, submitted a lengthy after action memorandum to Foxworth. It includes an overview of the goals of police missions and the procedures used to complete them; a step-by-step analysis of the James shooting incident; and a frank assessment including his opinions and perspectives on what occurred and what should have occurred. A section entitled “Physical Evidence,” in which the evidence from the scene, particularly the gun powder patterns, is assessed in comparison to witness statements, is included as an attachment to the memorandum. Also attached is a set of diagrams illustrating the officers’ positions during the traffic stop and applicable general orders and statutes.

The Review Level Committee (Foxworth, Assistant Chief Lynnae Berg, Assistant Chief Andrew Kirkland, and Commander Bret Smith) submitted a confidential memorandum to Chief Kroeker. It is two pages long; most of the second page was ordered redacted and the Oregonian does not contest that decision. The remaining material identifies in general terms some procedures and policies “identified * * * for internal review and action.” It does not mention any officers or incidents by name.

After the full review of the incident, each of the four members of the Review Level Committee voted on whether he or she believed that McCollister or the other officers had conducted themselves according to bureau policies and procedures and on what they thought was the appropriate level of discipline. The Oregonian requests disclosure of the voting logs that pertain to McCollister.

None of these documents contains material the disclosure of which would have a seriously chilling effect on future investigations, particularly in light of the fact that the description of events, the findings, and the discipline imposed were already disclosed before the Oregonian made its request. No otherwise anonymous whistle blower is identified; no personal criticism (as opposed to findings regarding which actions fell outside of bureau policies) is leveled. Supervisory personnel render judgments, but they are clinical and detached. To conclude that public disclosure of such judgments, made pursuant to supervisory duties, would discourage future candor is an insult to the supervisors themselves.

The city argues that the need for confidentiality in the present case is weightier than normal: “[I]t is particularly in ‘high profile’ cases that recognizing [the exemption in ORS 192.502(1)] will do the most good in encouraging * * * self-critical investigation and analysis[.]” (Emphasis in original.). That may be. It is beyond dispute, however, that the public’s (and the police bureau’s) need to have complete confidence that a thorough and unbiased inquiry has occurred is most urgent and compelling in “high profile” cases where a police officer has killed a citizen in the line of duty. That confidence comes from transparency and its value is not outweighed by the speculation that transparency will quell candor at some future date. This is not a close case. (3)

Affirmed.

1. In its petition to the district attorney and in its complaint in circuit court, the city also claimed exemptions under ORS 192.501(12) and ORS 181.854. The former exempts “[a] personnel discipline action, or materials or documents supporting that action” unless the public interest requires disclosure in the particular instance. The latter prohibits disclosure of “information about a personnel investigation of a public safety employee * * * if the investigation does not result in discipline of the employee.” In its counterclaim in circuit court, the Oregonian sought disclosure of the requested documents and it renewed that request in its motion for summary judgment without reference to particular statutes. On appeal, the city assigns error only to the trial court’s conclusion “that the City failed to demonstrate that, under ORS 192.502(1), in this instance, the public interest in encouraging frank communication * * * outweighs the public interest in disclosure of the records sought by Oregonian.” Therefore, this appeal raises no issue regarding ORS 192.501(12) or ORS 181.854.

Return to previous location.

2. At the time of the incident and investigation, Foxworth was Assistant Chief of Police. He was a participant in the review of McCollister and his voting log is one of the documents the Oregonian wants the city to disclose.

Return to previous location.

3. Although the city states in the first paragraph of its brief (“Nature of the proceeding and the relief sought”) that it “seeks reversal of the trial court’s order granting Oregonian’s petition for costs and attorney fees pursuant to ORS 192.490(1),” the brief contains neither an assignment of error nor any argument regarding costs and fees. We therefore leave the trial court’s award undisturbed.

Return to previous location.

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Several courts have ruled that defendants’ mental health reports are public

Rulings opening mental health reports in criminal trials

The Oregonian has won rulings in three Oregon counties (Multnomah,

Tillamook and Lincoln) that mental health reports ordered by the court

to determine the competency of a defendant to stand trial are public

under the open courts provisions of the state Constitution. Here is one

such ruling in the case of State v. Morris (note that the defendant

specifically is notified that there is no confidentiality). The evaluation follows the court ruling:

David W. Hantke Circuit Judge(503) 84.2-8014 Ext. 114

Rick W. Roll, Circuit Judge (503) 842-2598 Ext. 112

CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF TILLAMOOK

Tillamook County Courthouse

201 Laurel Avenue

Tillamook, Oregon 97141

Trial Court Administrator (503) 842-2596 Ext. 124

Calendering (503) 842-7914 Ext. 110

FAX (503) 842-2597

January 2, 2004

William B. Porter, Tillamook County District Attorney

Office of the Tillamook County District Attorney

201 Laurel Avenue

Tillamook, OR 97141

Glenn Faber, Attorney at Law

Moberg, Canessa, Faber & Hooky, P.C.

842 Broadway

Seaside, OR 97138

Charles M. Fryer

Attorney at Law

101 SW Washington

Hillsboro, OR 97123

Charles F. Hinkle, Attorney

Stoel, Rives, LLP

900 SW 5th Avenue, Suite 2600

Portland, OR 97204

Re: State of Oregon vs. Edward Paul Morris Tillamook County

Circuit Court Case No.: 02-1283

On December 1, 2003, oral argument was heard on the Oregonian

Publishing Company’s Motion to Unseal the reports prepared by. Dr

George Suckow, Dr. Richard Hulteng and the Oregon State Hospital

regarding the defendant’s capacity to proceed pursuant to ORS 161.360

and ORS 161.365.

During oral argument, defendant objected to release of the

reports claiming the psychotherapist-patient privilege pursuant to OEC

504. Following oral argument, the Court permitted the Oregonian to file

additional argument to address the psychotherapist-patient privilege.

With regard to the privilege, the burden rests with the

defendant to show that he and the information sought to be protected are

within the ambit of the privilege. In its Memorandum regarding the

privilege, the Oregonian identifies three (3) reasons why the defendant

cannot meet the burden.

Taking the Oregonian’ s third argument first, the Oregonian

argues that the reports fall within a general exception of the

psychotherapist-patient privilege under OEC 504 (4)(b)(A) in that the

communications are relevant to the issue of the mental or emotional

condition of the defendant in a proceeding in which the defendant relies

on the condition as an element of his claim or defense. However, as was

argued by Mr. Faber on December 1, 2003, the defendant’s capacity to

proceed is not a claim or defense. ORS 161.365(1) provides that whenever

the Court has reason to doubt the defendant’s fitness to proceed by

reason of incapacity, the Court may call to it’s assistance in

reaching it’s decision, any witness and may appoint a psychiatrist or

psychologist to examine the defendant and advise the Court. In this

case, Dr. Hulteng’s report was submitted to the Court, providing the

Court with reason to doubt the defendant’s fitness to proceed. The

State then requested that Dr. George Suckow evaluate the defendant,

which was done. Finally, the Court had the defendant evaluated at the

Oregon State Hospital. The exception contained in OEC 504(4)(b)(A) does

not apply.

However, the other two (2) arguments made by the Oregonian have

merit. Specifically, that the reports were prepared for the purpose of

drawing the Court’s attention to the issue of the defendant’s

fitness to proceed and assist the Court in evaluating the defendant’s

capacity to procee

d. Although communications made to Dr. Hulteng may

have been confidential communications made for the purpose of diagnosis

or treatment of the defendant’s mental or emotional condition, the

submission of the report to the Court would constitute a waiver of any

privilege as to the contents of the report and for the purpose of

determining the defendant’s capacity to proceed. As to Dr. Suckow’s

report and the Oregon State Hospital report, there would be no

confidential communication issue in that the defendant participated in

the evaluations understanding that the reports were for the Court’s

use in  determining the defendant’s capacity to proceed and each was

intended to be disclosed to at least the Court and the State. In any

event, any privilege was waived as to the contents of the reports when

submitted to the Court.

Even if the psychotherapist-patient privilege applied and was

not waived, it is this Court’s opinion that Article 1, Section 10 of

the Oregon Constitution requires that the reports be unsealed. Although

in this case there was no testimony taken nor formal Court proceeding

held, the three (3) reports were used by the Court, pursuant to

agreement of the parties, in reaching its decision on whether or not the

defendant had the capacity to proceed. Therefore the Court relied upon

the reports in reaching its decision and the reports were filed with the

Court for the purpose of allowing the Court to carry out its role in

“administering justice” under Article 1, Section 10.

If the reports were to be received in evidence at a formal

hearing to determine the defendant’s capacity and testimony were taken

from the doctors or other persons, the public would have a right to be

present at that hearing and then would have access to the testimony and

the reports.

What would have been public in a Court hearing should not be

allowed to be kept secret when the Court relied on the same information

in reaching its decision.

Finally, the Court must balance the public’s right of access

to the reports against the defendant’s ability to receive a fair

trial.   One interest of the public is to know that their Courts are

operating in a lawful manner. There may be no other way to accommodate

this interest without disclosure of materials relevant to the purpose of

the Court proceeding. In this case that would be the determination of

the Defendant’s capacity to proceed.

However, there may be a way to accommodate the Defendant’s

ability to receive a fair trial by allowing time to pass between

allowing public access to the records and through the use of voir dire.

Since it appears the Defendant’s interests can be appropriately

protected, the balance tilts in favor of the public’s right to access.

The Oregonian’s Motion is allowed.

DAVID W. HANTKE

CIRCUIT COURT JUDGE

DWH/mh

Department of Human Services

Oregon State Hospital

2600 Center Street NE

Salem, OR 97301-2682

(503) 945-2800 (Voice)

(503) 945-2996 (TTY)

FAX (503) 945-2807

FILED

CIRCUIT COURT

TILLAMOOK COUNTY STATE COURTS

2003 AUG 14 PM  1:08

TRIAL COURT ADMINISTRATOR

BY

August 12, 2003

The Honorable David W. Hantke

Tillamook County Courthouse

201 Laurel Avenue

Tillamook, Oregon 97141

RE: MORRIS, Edward

OSH#: 69987

WARD: COE

Dear Judge Hantke:

Please find enclosed the report of the evaluation on the

above-named individual.

If you have any questions, please do not hesitate to contact the

author of the report, who can be reached at the telephone number listed

at the top of this page.

Sincerely,

Steven Fritz, MD

Chief Medical Officer

Oregon State Hospital

SF/rp

Encl.

03-07-15.COV/087.WRD/69987

OREGON STATE HOSPITAL

REPORT OF EVALUATION

NAME: MORRIS, Edward

OSH#: 69987

TYPE: Court Ordered Evaluation

UNIT: Forensic Evaluation Service

DATE OF REPORT: 8/4/03

DATE OF EVALUATION: 7/15/03

DOCKET NUMBER(S):02-1283

IDENTIFYING INFORMATION: This is the first Oregon State Hospital

referral for Mr. Edward Morris, a 38-year-old widowed white male, born

on March 10, 1965. He is charged with seven counts of Aggravated Murder,

an unclassified Measure 11 felony in Tillamook County Circuit Court. The

defendant was referred for a 30-day inpatient evaluation of his ability

to aid and assist in his own defense pursuant to Oregon Revised Statute

(ORS) 161.365, in an order dated June 20, 2003, signed by the Honorable

David W. Hantke.

EVALUATION PROCEDURES AND INFORMATION: The defendant was

interviewed by Carlene Shultz, PsyD, on July 15, 2003, for five hours

and 35 minutes and an additional 50 minutes for psychological testing on

July 16, 2003, at the Oregon State Hospital Forensic Evaluation Service.

Present throughout the first three and a half hours of the evaluation

was Gail Mason, PhD, as an observer. Additional information considered

in this evaluation included:

1. Tillamook County Court documents, including an indictment

dated January 23, 2003.

2. A factual brief of the case provided by William B. Porter,

District Attorney for Tillamook County, in a phone conversation on July

17, 2003, for 50 minutes.

3. Law Enforcement Data System (LEDS) criminal history sheets.

4. A report from jail medical staff to Linda Brandeberry, LCSW,

on June 23, 2003.

5. A Psychological Report by Richard J. Hulteng, JD, PhD, dated

May 28, 2003.

6. A Psychiatric Report by George R. Suckow, MD, dated June 6,

2003.

7. Summary and case notes by Teresa Shelby, MD, for visits on

February 28, 2003, April 11, 2003, and May 23, 2003.

8. A letter written by the defendant, dated April 24, 2003.

9. Raw psychological test data obtained by Dr. Laura Sebastian

for prior Minnesota Multiphasic Personality Inventory ­ Second Edition

(MMPI-2) and Rorschach administrations.

10. Minnesota Multiphasic Personality Inventory ­ Second

Edition, completed July 11, 2003.

11. Personality Assessment Inventory (PAI), completed July 11,

2003.

DOCUMENTTION-EVALUATION

OSH-STK: 75069-MR 1-3/2002

MR#: 62-00-0779-00

NAME: MORRIS, Edward

OSH#:69987

TYPE: Court Ordered Evaluation

UNIT: Forensic Evaluation Service

DATE OF REPORT: 8/4/03

DATE OF EVALUATION: 7/15/03

DOCKET NUMBER(S):02-1283

PAGE: 2

12. Structured Interview of Reported Symptoms (SIRS),

administered July 15, 2003.

13. Rorschach Inkblot Test, administered July 16, 2003.

14. MacArthur Competency Assessment Tool ­ Criminal

Adjudication (MacCAT-CA), administered July 15, 2003.

15. Phone conversation with Chuck Fryer, counsel for the

defense, for 30 minutes on July 14, 2003.

16. Phone conversation with Richard J. Hulteng, JD, PhD, on July

21, 2003, for 90 minutes.

17. Phone conversation with George Suckow, MD, on July 21, 2003,

for 15 minutes.

18. A note written by the defendant to the evaluator on July 18,

2003.

19. Consultation with the Ward 48C Interdisciplinary Treatment

Team (IDT).

20. The Oregon State Hospital record for the current inpatient

psychiatric admission.

21. Evaluation observations by Gail Mason, PhD, dated July 25,

2003.

NOTIFICATION OF RIGHTS: Prior to interview, the defendant was

advised of his rights and of the limits of confidentiality.

Specifically, he was informed of his right to refuse to answer questions

and to consult with his attorney or to have his attorney present during

the interview. He was told that none of the information he provided

would remain confidential and that a report of the evaluation results

would be sent to the court and the attorneys in the case. The defendant

expressed a clear understanding of these rights, including his right to

have his attorney present as “there might be all kinds of sensitive

questions asked that a

person might not be in their best interest to

answer.” He further reported a conversation with his attorney in which

his attorney had advised him to proceed with the evaluation without his

attorney present.  Mr. Morris indicated that he understood his rights,

signed the Patients Right form, and agreed to proceed with the

interview.

BACKGROUND INFORMATION: The following information was obtained

from the defendant’s self-report and available records.

SOCIAL/DEVELOPMENTAL HISTORY: The defendant, Mr. Edward Morris,

was born and raised in Portland, Oregon, by his mother and her parents

as his parents divorced when he was 2 years of age. He describes his

mother as “a very nice overweight woman.” He reports having had a

stepfather as a

DOCUMENTATION-EVALUATION

OSH-STK 75069-MR 1-3/2002

MR#: 62-00-0779-00

CONFIDENTIAL

George R. Suckow

Physician

773 Linda Ave NE

Keizer, OR 97303-4549

June 6, 2003

William B. Porter

District Attorney

Tillamook County Courthouse

201 Laurel Ave

Tillamook, OR 97141

RE: Edward Paul Morris

Dear Mr. Porter:

At your request I conducted a psychiatric evaluation of Edward

Paul Morris on June 3, 2003 at the Tillamook County Correctional

Facility in a conference room. Present were myself, Mr. Morris, his

attorney Charles M. Fryer and yourself, William Porter, District

Attorney of Tillamook County. Prior to examining Mr. Morris he was

advised of his rights including the right to remain silent, knowledge

that anything he said could be used in a court of law, the right to

consult his attorney before making any statement, the right to ask his

attorney to be present (he was), the right to not discuss or answer any

question at any time and to understand that there is no privilege or

confidentiality between doctor and patient in a court-ordered or

forensic examination. Mr. Morris understood those rights and consented

to proceed.

Prior to the interview I was asked by Mr. Fryer not to inquire

into the charges pending against Mr. Morris other than his knowledge of

what he might be accused of.

Prior to examining Mr. Morris I also had the opportunity to

review a report by Richard J. Hulteng, JD, Ph.D. concerning his

examinations of Mr. Morris; the report being dated May 28, 2003. I had

previously been furnished by you with transcripts of interviews of Mr.

Morris and had previously reviewed them, dated January 4, 2003 and

January 4, 2003 approximately three hours earlier. I also reviewed a

copy of Mr. Morris’ military records and an affidavit for a search

warrant dated December 23, 2002 concerning the investigation of the

offense for which Mr. Morris is currently charged. I also reviewed a

copy of a letter written by Mr. Morris on Thursday the 24th of April,

2003.

Diagnosis:

Axis I: v71.09, no diagnosis

Axis II: 301.9, personality disorder, mixed

No related posts.