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

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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