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