’

ENTERED

CIRCUIT COURT OF OREGON
FIFTH IUDICIAL DISTRICT
CLACKAMAS COUNTY COURTHOUSE
807 MAIN STREET

.

E

BY: RKM

OREGON CITY, OR 97045

g

503-722-2732

EmaNRY C. BREITHAUPT
’-

JUL 2 3 2019

dge Pro Tem

Fax: 503-655-8280

July 23, 2019

:3

$5

SENT VIA EMAIL

Rory Bialostosky
767 Nicole Drive
West Linn, OR 97068
Email: roryforstudents@gmail.com
Christopher K. Dolan
Attorney at Law
2 Centerpointe Drive, Sixth Floor
Lake Oswego, OR 97035
Email: chris.dolan@jordanramis.com
Re:

Bialostosky v. Cummings; Case No. 19CV1 1216

Parties,

This matter is before the court on cross motions for summary judgment. Plaintiff, in his
complaint, requests declaratory relief, asserting that the defendant is a “public body” under
Chapter 192 of the Oregon Revised Statutes and is therefore required to provide to him copies of
the contents of a notebook maintained by defendant in connection with her service as a
commissioner of the City of West Linn.

Plaintiff’s reading of the definition of “public body” is, as conceded by plaintiff at the
hearing on this matter, critical to his assertion that the notebook is a “public record.” That can be
seen in the definition of a “public record,” in ORS 192.311(5)(a):

“

‘Public record’ includes any writing that contains information
relating to the conduct of the public’s business, including but not
limited to court records, mortgages, and deed records, prepared,
owned, used or retained by a public body regardless of physical
form or characteristics.”
For the notebook to be a public record,
used or retained by a public body.”

it must therefore have been “prepared, owned,

 Rory Bialostosky
Christopher K. Dolan
July 23, 2019

I

9.

20

Page 2

23

7
ol‘()riginul

Copy

Correel

Verilied

Defendant asserts that she is not a public body, and therefore the notebook does not
within the definition of a public record subject to disclosure under state law.

fit

Under ORS Chapter 192, a public body:

“includes every state officer, agency, department, division,
bureau, board and commission; every county and city governing
body, school district, special district, municipal corporation, and
any board, department, commission, council, or agency thereof;
and any other public agency of this state.”

Plaintiff conceded at the hearing that the defendant does not fit any of the terms relating
to city government, with one exception. Plaintiff asserted that defendant is an “agency” of the
City of West Linn. In the hearing plaintiff conceded that defendant is not an agent of the City
West Linn. Plaintiff‘s argument in this respect is not well taken. Given the listing of city-related
entities: that is a governing body, board, department, commission, council or agency, the
accepted rule of statutory construction dictates that the entities listed have decisive aspects in
common. Cf. King City Rehab, LLC v. Clackamas County, 214 Or App 333, 341 (2007). In this
case the aspect that is decisive is that the entities listed are just that: entities. The collection of
descriptive nouns does not indicate that an individual, as opposed to an entity on which the
individual serves, is within the definition of public body as that is applied at the county or lower
level of government.

Additionally, the definition of “public body” itself shows that when the legislature
desired to include individuals within the definition, it knew how to do so. With respect to the
state level of government, by including in the definition the term “state officer,” and concluded
its description of covered persons with the phrase “and any other public agency of this state,”
this permitting a reading that a state officer might be included in the residual phrase referring to
an agency. No such expression of inclusion of individuals within the definition is found as to
sub-state levels of government. The legislature did not refer to individuals by using the term
“officers” of such governments. Nor did it indicate inclusion indirectly through reference to a
residual clause referring to a public agency.

Plaintiff also argued that ORS 192.431, vesting in the circuit courts jurisdiction over
actions for injunctive relief in public records cases, necessarily leads to the conclusion that this
defendant must be a public body. Otherwise, argues plaintiff, how could his case be in this court
under a statute authorizing the relief he seeks? The first problem with plaintiff‘s argument is that
it is premised on a conclusion that a statute providing for certain forms of relief is definitional
with respect to the terms it uses. That is not the case. ORS 192.311, and not ORS 192.431,
provides definitions for the chapter. Second, plaintiff ignores ORS 192.427, a statute that
provides jurisdiction when a public record is in the custody of a public official and not in the
custody of a public body. ORS 192.427 and ORS 192.431, read together, indicate that a
public record is in question, a person requesting the record may proceed against the public
body under ORS 192.431 and against an officer having custody of the record under ORS
192.427. These statutes do not define either a public record or a public body.

if

 Rory Bialostosky
Christopher K. Dolan
July 23, 2019

ZHI‘)

Page 3

23

7

The court notes that the immediately preceding discussion demonstrates the mistake
ol‘()rlgln:ll

Com

Corrccl

Vcrllicd

plaintiff made in relying on a proceeding in Multnomah County in which Judge Souede
concluded that a city official must be a public body because, if he was not a public body, “he
would not be subject to Oregon’s Public Records laws at_all.” Opinion and Order of Judge
Souede issued in case 18CV04107, Bechtel v. City ofPortland and Ted Wheeler, at page 6,
footnote 5. That case involved a document that was concededly a public record, although subject
to certain exceptions from disclosure. Judge Souede did not need to conclude that a city official
must be a public body in order to require the official to make a public record available. The
provisions of ORS 192.427, without relying on the status of a public official as a public body,
provides that judicial action against a public official having custody of a public record is
available to enforce the public records law. The relief depends not on the status of the official as
a public body, but rather on the status of the record in the custody of the official having the status
of a public record subject to disclosure. As discussed in the initial portion of this opinion,
because the defendant is not a public body, the notebook in question, unlike the document in the
Multnomah County case, is not a public record. The notebook was not, as required by the
definition contained in ORS 192.311(5)(a), “prepared, owned, used or retained by a public
body.” That being the case, ORS 192.427 provides no route to relief for plaintiff.
The court finally notes that although plaintiff makes reference to the West Linn City
Council Rules in his briefing, he concedes that his case is based entirely on state law and
reference to the city council rules was only to aid his argument are public records under Oregon
state law. Plaintiff’s Motion for Partial Summary Judgment, page 10, footnote 4. Chapter 192
does not make local jurisdiction governing body rules relevant to determination of terms defined
in chapter 192. Additionally, the expansive definition of “writing” in ORS 192.311(7) to include
such things as letters, words, sounds, etc., for purposes of the definition of a “public recor ” does
not complete the analysis. The critical step in the analysis is that the record be “prepared,
owned, used or retained” by a public body.

As the defendant is not a “public body,” her writings in the notebook in question are not
subject to inspection under ORS Chapter 192.
Counsel for defendant is to prepare a form of order with specific language indicating that
defendant is entitled to a declaration that she is not obligated to provide her notebook to plaintiff
for the reason that she is not a public body and the matter at issue is not a public record. The
order should also indicate that plaintiff is not entitled to the relief he has requested. Those
declarations must also be included in the form of judgment to be submitted by defendant as well.

Very truly yours,
Signed: 7/23/2019 04:52 PM

Henry C. Breithaupt
Judge