Public records pose a Catch-22
Catch-22: a dilemma or difficult circumstance from which there is no escape because of mutually conflicting or dependent conditions.
In a recent Tidings issue you may have noticed Rory Bialostosky's lawsuit regarding an unfulfilled public record request to see all of Councilor Cummings' personal notebooks in their original form. The request reads "I, Rory Bialostosky, along with David Baker, write to request to inspect a true original of all notebooks used and/or written in during the course of your work as a West Linn City Councilor..."
It is possible that Baker and Bialostosky did not realize they were asking for nine years' worth of notebooks since Cummings had been elected to serve on City Council at various times going back to 2005.
It is possible they did not realize that personal notes taken in such a context over those nine years could include references to privileged city information which the city itself would insist be kept private by redacting such notes should they be released.
It is possible they did not consider the cost to the taxpayers to have a legal expert go through nine years' worth of personal notebooks, and the likelihood that sharing the notebooks "in their original form" would violate the city's privacy requirements if notes contained information the city needed to redact.
The broad phrasing of their request struck me as unusual given my personal experience requesting public records from the City of West Linn, something I have needed to do from time to time. Each time I have made a request, I was required to list a specific time frame, and either specific topics or persons.
I feel Baker and Bialostosky would have done better to ask for whatever they specifically were interested in, as the rest of us are required to do.
Since they asked for personal notes which are not archived by the city, and requested "in the original form", they seem to have created a Catch-22 that could have compromised the city if Cummings had complied promptly.
This Catch-22 could shift an unreasonable cost burden onto the taxpayers if legal counsel must be brought in to redact her notebooks.
Perhaps our city policy should disallow vague records requests of this nature and note on the Public Records Request form that privileged information that can harm the city's interest cannot be released in original form without redaction.
If the council rules imply that Councilors, Mayor, and Advisory Board Member's personal memory notes are to be considered public records, perhaps this should be modified. The staff time invested in archiving actual meeting-related content such as minutes, videos, reports and official emails makes sense, but having staff handling personal memory notes does not.
Imagine if you were serving on a city board like the Planning Commission or the Parks Board or as an officer of a Neighborhood Association like I do.
Imagine that someone demanded to see every note you had ever written as you were preparing for meetings or attending them. I am not talking about the writing done in an official capacity, such as when you wrote the minutes of a meeting or when you submitted research supporting voting a certain way on a topic.
Those things are clearly public documents relevant to the actual business of the meeting.
People who serve on boards, city council and in the neighborhood associations need to have the freedom to create their personal memory notes because it helps them keep track of complex matters and be better volunteers.
To protect their freedom to do a good job, our city may need to take reasonable steps such as 1) be sure that the city rejects overly broad requests by requiring a resubmittal on the standard form and 2) review, and perhaps slightly alter, the language of the council rules (which also apply to advisory board members) to specify that personal memory notes are not considered city records and thus are not subject to costly, unnecessary scrutiny.
About Cummings' notes themselves, I am confident there is nothing of great interest and that her actions reflect her usual concern for due process and her ethic of serving the greater good.
Ed Schwarz is president of the Savanna Oaks Neighborhood Association.
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