A retired judge's ruling in a public-records case is certainly "confusing," in the words of a newspaper-industry lawyer, but then, so is the statute the judge ruled on. The Legislature should clarify it.
At issue is the request of a West Linn teenager for notes taken during public meetings by a city council member. Rory Bialostosky, a 19-year-old college freshman, wanted West Linn City Councilor Teri Cummings to release the notes she took during council meetings as public records.
Retired Tax Court judge Henry C. Breithaupt, serving as a Clackamas County Circuit judge, ruled orally that the legislators who wrote Oregon's public records law in the 1970s defined a public body subject to the law as including "every state officer, agency, department, division, bureau, board and commission; every county and city governing body, school district, special district, municipal corporation, and any board, department, commission, council, or agency thereof; and any other public agency of this state."
The statute uses the term "officer" only in connection with state officials, not local ones, Breithaupt ruled, and therefore the disclosure requirement applies to individuals only at the state level, and only to records kept by councils, commissions and other collective bodies at the local level.
Besides the fact that this is counterintuitive — individual local officials are bound to follow public meetings and other laws governing the conduct of public officials — state Public Records Advocate Ginger McCall says she and "everybody" concerned with public records have interpreted the law to include individual local officials and trained them accordingly.
Jack Orchard, a lawyer who represents the Oregon Newspaper Publishers Association, acknowledged that the statute is unclear, but disagreed with the judge's conclusion.
"The question is, is that what the legislature really intended?" Orchard told The Oregonian. "From a policy point, I don't see the distinction.
"What difference does it make if you're on the state Board of Education versus a member of the West Linn school board?" he asked.
Whether every note jotted down by a city councilor for personal use ought to be automatically public is another matter entirely. Cummings said she sought a narrow ruling pertaining to her notes going back many years, but not to exclude any record a city councilor might create. Breithaupt's broad ruling raises the possibility of local governments using it to avoid releasing any and all records, not just personal notes.
The Legislature should amend the original text of the statute to make clear that it covers all public officials.
-- (Medford) Mail Tribune