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