August 25, 2005

William on 25 Aug 2005

I'm not sure how they decided the records you requested did not belong to a public body. If "every person has a right to inspect any public record of a public body in this state" and "any writing containing 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", then it seems to me to be rather flimsy logic to take that bit of law and suggest that "unless Barran Liebman is considered a public body, petitioner has no right to documents in their possession."

For starters, this is public business. And second, the law cited specifically says that the public records we're entitled to see are "not limited to [those] retained by a public body". It strikes me as perverse to twist that and suggest that, just because a private firm was commissioned to investigate ethics charges, we are not entitled to see the records.

Brannan Liebman also suggests, as justification for not handing anything over, that they have an obligation to keep secret the identities of many sources of information.

While I'm willing to accept that people's identities must be protected, I'm not willing to accept that that truth makes all of their records in this case confidential. And while I'm willing to accept that the Oregon Supreme Court chose respect the Fourth Amendment in a situation somewhat similar to this one, I'm not willing to believe that the PDC has in its possession ONLY the reports that were made public.

In short, the justifications cited by Barran Liebman are mere distractions. First, the PDC should have more records than the public has seen. Second, just because identities must be protected does not mean that there's not a lot of information out there that should be in the public domain.

If, in fact, the PDC does not have more records than the miniscule reports we've seen, then how can they justify spending 25,000 of our tax dollars? The report tells us next to nothing. How can the PDC be satisfied that nothing improper happened if they don't have any facts before them? Trust those sorry-looking reports? Why?

If the PDC truly has only the reports the public has seen, if that's truly the way it is, then things really do need to change regardless of the ethics of some PDC members. Such an ethics investigation, which is payed for by us, ought to have extensive public records available. It ought to be a precondition of working on the taxpayer dime (understanding, of course, that identities and other bits of information definitely should be kept private).

William on 25 Aug 2005

OK so I rambled a bit there. Sorry. I do think that the records in Barren Liebman's possession should be considered public, and that they should be "of" (which I, perhaps incorrectly, interprete in the "about" sense of the word) "a public body". Even if I'm wrong there, and the records in Barren Liebman's possession are private, I still would find it to be quite galling if the PDC didn't have any of those records in its possession, and that the PDC wouldn't at least obtain a few of those records so that the public could determine for itself that Barren Liebman's conclusion had merit. There. A much shorter posting...

Jack Bog on 25 Aug 2005

Take a look at the law on who owns an attorney's files on a client's matter -- the attorney or the client. Last I heard, if the client has paid the bill, the client has a right to at least some of it.

As for the three reports that were admittedly given to the PDC on the three investigations, the defense that "the law firm is not a public body" doesn't hold up. Who cares? The PDC has those documents. Submit another request that asks for the three reports.

The attorney-client privilege claim is colorable, I suppose, but as b!X has pointed out, this means that agencies can keep secret the investigations they tout to cool off public furors about scandals -- simply by hiring an attorney to do some smidgen of legal analysis (however small) on top of a potentially massive fact-finding mission. If the PDC had hired a nonlawyer private investigator to interview the witnesses, b!X would have that person's reports on his desk right now.

In the end, an investigation whose results are secret except for a one-word verdict isn't worth much, and public funds shouldn't be spent on such things.

The commissioners can release these reports if they want to. In addition to continuing to pursue the open records request, b!X ought to make a more direct appeal to the three new commissioners appointed by Mayor Potter. If they really want transparency, sending Melvin out to tell people to go away is a funny way of getting there.

The One True b!X on 25 Aug 2005

I'll have more to say about this at some point, but for now just a couple of things.

The most important thing is the points Jack has already made very well, about the practical impact of the PDC dance on these records. It's the point I made when I started in on this to begin with: A "report" of two paragraphs which doesn't say anything and doesn't show how its conclusions were reached is improper and inadequate for the purposes of public oversight and accountability.

As I said in the beginning, if I hired an attorney to look into charges against me, and then had the attorney just say, "I talked to some people, and read some documents, and the charges are false" no one in their right minds would take that as the end of the story.

But here's the other idiocy of the PDC letter to the DA. They make a big deal over there being public records -- Tellam's reports, in essence -- and that if I had requested those I could get them.

Thing is, public agencies have the right to "respond in part and deny in part" any public records request. And whatever Tellam handed over to PDC clearly falls well within my original request for "all documents generated by Bradley F. Tellam ... in the production of his memorandum."

It's simple: Whatever he did actually provide to PDC clearly was "documents" that were "generated" in the "production of his memorandum." So PDC easily could have asserted a right to respond in part and deny in part, and handed over whatever they WERE given as part of this current pending request.

That they did not do so only further demonstrates their culture of non-responsivness. The material they do have on hand easily fals within the scope of my request. Yet they refuse to give it, and insist I file an entirely separate request.

That is neither responsiveness nor accountability. Period.

Jack Bog on 26 Aug 2005

One more thing: the attorney-client privilege may very well be lost if the purportedly "secret" lawyer-client communication is shown to anyone else. You might ask Melvin if anyone outside the PDC chain of command saw the reports, including Harris, Smith, Clevenger, PR flaks -- or even Mazziotti, if he saw it after he left office.

The One True b!X on 26 Aug 2005

One more thing: the attorney-client privilege may very well be lost if the purportedly "secret" lawyer-client communication is shown to anyone else.

I am in fact working on this angle. Heh.

One other thing. You'll note that where they tell me I could submit a different request for what even PDC says is public record (even though it would already be covered under the existing request anyway), they tell me I should submit it to someone other than the PDC attorneys.

Problem here is the existing request wasn't made of PDC's attorneys, but to PDC as a whole anyway. They are trying to claim that the existing request was made just of their legal department, which is a lie.

(Public records requests, as per PDC's instructions, have to be mailed with the "attention" to the legal staff, but the requests themselves are not inherently made of the legal staff.

What's so galling, still, is that even with the bits of this for which there is no excuse or rationale for a run-around, they feel obsessively compelled to give the run-around anyway.

Jack Bog on 26 Aug 2005

Is there any sanction under the public records law for agencies that behave in a dilatory way toward a legitimate disclosure request?

Jack Peek on 27 Aug 2005

Hey B!X, We don't agree on much at all, but get tough on this PDC info request, they tried that with me on the old group home issue and ended up giving me a pile of stuff.

Maybe someday after we have another "incident" like we had in Beaverton last week, with the client "who was dangererous too herself and the community" , qoute the Beaverton police press release,based on information they got from the PSRB, You may want to do something with that information.......but maybe not!

Jonathan R. on 30 Aug 2005

Yesterday I had the pleasure of spending an unexpectedly long time waiting in Judge Nachtigal's court, and heard a lengthy hearing on the Nike and City of Beaverton's dispute about public records. The Oregonian's story this morning was a decent summary, but without a lot of the detail that might be helpful. While I would take a stab at summarizing it, you might get a more detailed recollection from the reporter, or from Nike's attorneys at Schwabe (lead lawyer was Joe Willis).

Terry on 01 Sep 2005

I took a quick look. It seems to me that the PDC (meaning its lawyers who wrote this) are trying to ride two horses that are going in different directions.

The first is that BL is doing an "independent investigation”. The PDC argues that it paid BL $25,000 for it to do this “investigation” I would think that this is like a Board of Directors of a public company asking a law firm to investigate if its CEO is “cooking the books”. In that case I think the law firm has to make the report to the Board and if the Board is smart they have to report to the shareholders. I have not really looked at this area of the law but it is clear that PDC is trying to say that that was what it was doing.

The horse that is going in the other direction is the PDC’s argument that all these documents are covered under the privilege or the work product doctrine. The problem is that an attorney has an absolute duty to zealously represent their client. The purpose of the lawyer is not to be "objective". Their job is to prevent you from doing stupid things and baring that to cover your butt. When they are in the second mode the lawyer is a paid gladiator and nothing more.

The fact of the matter is that the attorney client privilege is really two things. The first is what you talk about with the lawyer and the other is the “work product doctrine” which is the stuff you give your lawyer or the stuff they collect in working for you. The communication privilege has held up and is properly hard to break. The work product doctrine has in recent years been worn down. In essence you can not hide incriminating stuff by simply giving it to your lawyer to keep.

So Mike Shrunk can figure this out he is a smart lawyer. But overall I think the PDC should make up its mind if the BL engagement was to “conduct an independent investigation” or to act as the PDC’s legal counsel. The two positions inherently seem to be in conflict with one another.

Half a story on 26 Aug 2005

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