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American Civil Liberties Union of Oregon, Inc. v. City of Eugene

Court of Appeals of Oregon

May 20, 2015

AMERICAN CIVIL LIBERTIES UNION OF OREGON, INC., an Oregon non-profit public benefit corporation, Plaintiff-Appellant,
CITY OF EUGENE, OREGON, a municipal corporation, Defendant-Respondent, and CIVILIAN REVIEW BOARD OF THE CITY OF EUGENE, OREGON, Defendant

Argued and Submitted August 13, 2013.

161024398. Lane County Circuit Court. Josephine H. Mooney, Judge.

Steven M. Wilker argued the cause for appellant. With him on the briefs were Kevin Diaz and Tonkon Torp LLP.

Jerome Lidz argued the cause for respondent. With him on the brief was Glenn Klein.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.


Page 508

[271 Or.App. 278] NAKAMOTO, J.

This appeal involves a public records request under Oregon's Public Records Law, ORS 192.410 - 192.505. Under that law, " [e]very person has a right to inspect any public record of a public body in this state," except as provided by the express statutory exemptions in ORS 192.501 to 192.505. ORS 192.420(1). Using the Public Records Law, plaintiff American Civil Liberties Union of Oregon, Inc. (ACLU) requested public records from defendant City of Eugene[1] relating to the Civilian Review Board's (CRB)

Page 509

review of an internal investigation of police misconduct. The city declined to release the requested records, relying on ORS 181.854(3), which prohibits a public body from disclosing information about a personnel investigation of a public safety employee if the investigation does not result in discipline.[2] ACLU filed suit in Lane County Circuit Court, arguing that, under ORS 181.854(4), subsection (3) of that statute does not apply when the public interest requires disclosure or when disclosure is necessary for an investigation by a citizen review body. Following a bench trial, the trial court declined to order disclosure. ACLU appeals, assigning error to, among other things, the trial court's determination that the public interest did not require disclosure of the requested documents. We affirm.

ACLU requests that we review the record de novo.[3] However, because this is not an exceptional case, we decline to exercise our discretion to do so. ORS 19.415(3) (in appeals of equitable actions other than those involving the termination of parental rights, we may, in our discretion, " try the cause anew upon the record or make one or more factual findings anew upon the record" ); ORAP 5.40(8)(c) (stating [271 Or.App. 279] that we exercise that discretion " only in exceptional cases" ). Bearing in mind that the legislature intended a uniform application of the exemptions in the Public Records Law, we conclude that our standard of review in this case is for legal error. See Guard Publishing Co. v. Lane County School Dist., 310 Or. 32, 37, 791 P.2d 854 (1990) (stating that, " [t]he legislative history of the [Public Records Law] shows that the legislature intended that [the statutes] be applied simply, quickly and with a large measure of uniformity " (emphasis added)). Accordingly, we accept the trial court's findings of historical fact if those findings are supported by any evidence in the record, and we review the trial court's conclusions for legal error. We state the facts consistently with that standard.

The incident that was the impetus of ACLU's record request was the May 2008 arrest of college student Ian Van Ornum at a pesticides protest in downtown Eugene. Police officers employed by the city used Taser stun guns in the process of arresting Van Ornum and others. Van Ornum was charged with resisting arrest and disorderly conduct and was later found guilty of those charges in a jury trial. Following the incident, Van Ornum and other individuals filed complaints with the city alleging that the officers had used excessive force in their arrest of the protesters. In response to those complaints, the Internal Affairs division of the Eugene Police Department initiated an investigation of the incident. Upon completion of its investigation, the Internal Affairs division transmitted a copy of its investigation file to the Police Chief, the Police Auditor, and the CRB.

The CRB had designated the case a " Community Impact Case," meaning that the CRB would review the city's proposed adjudication of the case before that adjudication became final, allowing the CRB to require the city to reopen the investigation if it found that the investigation was inadequate or incomplete, or if it determined that the adjudication reached by the city was not supported by substantial evidence. Eugene Code (EC) 2.244(4).

After reviewing the investigation file, the Police Chief made preliminary findings that the officers had acted [271 Or.App. 280] within police policy during the incident. The CRB thereafter held a public meeting to consider and vote on the chief's preliminary findings. During that meeting, the CRB members discussed their views of the incident, the investigation, and the evidence gathered, including discussions regarding witness statements. The CRB unanimously concurred with all of the chief's

Page 510

findings except for the finding relating to one officer's use of a Taser " while [e]ffecting the arrest of Mr. Van Ornum and defending himself against Mr. Farley[,]" with which the CRB concurred by a 4-2 vote. Following the CRB's review, the chief confirmed his preliminary findings and made a final adjudication that the officers' conduct was within policy and that the complaints were unfounded. As a result, the officers were not disciplined.

ACLU thereafter requested from the city " all documents used by the Civilian Review Board in reviewing and deciding the May 30, 2008, Ian Van Ornum Community Impact Case." (Boldface omitted.) As noted above, the city denied that request, citing the prohibition against disclosure in ORS 181.854(3).[4] ACLU exercised its statutory right to obtain review by the Lane County District Attorney. ORS 192.450 - 192.460. During the District Attorney's consideration of that petition, the city released some of the records it had withheld, but continued to assert that the remaining portions of the Internal Affairs investigative file were not subject to disclosure, relying on ORS 181.854. The District Attorney declined to order the city to disclose those records, and ACLU filed this action in the circuit court, seeking an order and judgment requiring disclosure of the records.

[271 Or.App. 281] Before trial, the parties stipulated to facts that established that the requested records fell within the terms of ORS 181.854(3), and therefore, were exempt from disclosure under the Public Records Law. See ORS 192.502(9)(a) (exempting from disclosure " [p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential or privileged under Oregon law" ). The disputed issues at trial were whether certain statutory exceptions to that prohibition applied, thereby requiring the release of the records. Also at issue was which party bore the burden of persuasion with respect to establishing those exceptions.

ACLU's primary position at trial was that the public interest required disclosure of the internal investigation file under ORS 181.854(4)(a). ACLU argued that the Van Ornum incident was a high profile case involving allegations that police officers had used excessive force. It asserted that the CRB was created by ballot measure to create a watchdog to review allegations of police misconduct and that the Public Records Law, and the Oregon cases that have applied it, recognize that there is a public interest in government transparency. Furthermore, ACLU emphasized that this was the first time that the CRB had designated a case a " community impact case," which increased the CRB's ability to affect the outcome of the complaints. According to ACLU, the public ...

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