Clackamas County District Attorney orders county to disclose tort claim records

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

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�� DFP/lc

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