Baker County District Attorney orders school district to disclose tort claim records
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����� Matthew B. Shirtcliff, District Attorney for Baker County
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����� Court House
����� 1995 Third Street - Suite 320
����� Baker City, Oregon 97814
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����� Main office: (5431) 523-8205
����� Support Enforcement: (541) 523-6414
����� FAX: (541) 523-3913
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����� 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,
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����� 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