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