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Beaverton slams Nike 'smoking gun' public records claim

Mayor: 'We've consistently told the truth all along'

A Washington County circuit judge now has two requests before her asking her to declare the winner in the long-running public records feud between Nike Inc. and the city of Beaverton.

Attorneys for the city filed a 54-page motion about 9:30 a.m. Friday asking the court to deny the Fortune 500 sports apparel giant's July 21 motion for judgment, allocation of costs and third motion for contempt.

Instead, the city is asking to be declared the winner and that Nike bear all costs associated with the city's response to Nike's extensive public records request.

'This is a fair motion,' said Beaverton Mayor Rob Drake. 'I think it counters Nike's claims that the city has kept information from them and that we know the final recommendation from Hal Bergsma did not name Nike as a target for annexation.

'What's important about this is that we've consistently told the truth all along.'

Nike and the city have wrangled since December 2004 over a request for all the documents related to Beaverton's annexation policy and any plans to target Nike's World Campus on Southwest Murray Boulevard. The city hired a computer-consulting firm to retrieve much of the documents and e-mails and deluged Nike with thousands of pages of information thought relevant to the case.

Since the beginning, Nike has maintained that the city failed to provide information of value in the request.

Meanwhile Beaverton officials charged that they were following the perimeters set by Nike and providing the company with the documents it asked for.

In December, Judge Gayle Nachtigal set aside the issue of who would pay for the massive records request. Under Oregon law, usually the person making the request is required to pay for the staff time to search and copy the documents, unless it involved unusual circumstances.

Although there are no accurate estimates of the costs linked to the huge public records search, the city says it might have to spend more than $200,000 on its work. Nike also has asked that the court award it legal fees in the case, which could be several thousands of dollars when finally tallied.

In Friday's court filings, Beaverton's attorneys wrote: 'The law requires such costs to be borne by the requesting party and, in addition, the costs of the search were a direct result of Nike's insistence that an expert be involved, with Nike as the decisionmaker for nearly every level of incremental costs.'

The city estimates that 98 percent of the costs of the forensic search were controlled by Nike's decisions because once those decisions were made, they controlled the number of documents the city's reviewers had to review.

The court filings also blasted Nike's argument that the city withheld a self-described 'smoking gun' draft annexation issue paper.

'That document appeared no fewer than seven times on the two external drives that the city offered in open court on Oct. 31, 2005, but Nike refused to accept anything but an externally conducted forensic search,' the filings stated. 'If Nike had expressed anything other than complete and utter rejection of the city's proposals in August and again in September of 2005, Nike would have had the annexation issue paper nearly a year before it did.'

The city also targeted Nike's claims that the city had engaged in deceptive practices in regards to the annexation issue paper written by Hal Bergsma, a city planner.

The paper contained four maps, with the fourth map being the map that reflected Bergsma's recommendation.

'Nike's filing had included the wrong map,' Drake said. 'The final map that was included in the memo did not include Nike as a target property.'

Nike's July 21 filings were prompted by the discovery in late June of a color-coded map and a brief Nov. 1, 2001, e-mail exchange between Joe Grillo, the city's community development director, and Bergsma listing possible business sites that could be annexed to 'reverse the city's total taxable assessed calculation.'

In bright yellow on the map is Nike's world headquarters campus. Other properties highlighted on the map included the Tektronix campus, Providence St. Vincent Medical Center and some of the commercial sites in the Peterkort development north of the Sunset Highway.

That map, provided by Nike to the court, was the second of the four maps included in the issue paper and contained a 'what if' analysis.

The annexation issue paper ended with a recommendation for a strategy to be followed and stated 'island areas that would be targeted for annexation in the near term are shown on attached map 4.'

Not map two, which Nike held up as a smoking gun, Drake said.

'All that said, this is about a public records request and not about specific policy of the city of Beaverton,' Drake added. 'The unfortunate thing is that Nike is pushing non-issues and stretching reality.

'It continues to waste taxpayers' money. As always, we invite Nike to put this issue behind us and be good neighbors."

Both parties are expected to argue their cases Sept. 18 in Washington County Circuit Court.