Portland Public Schools is taking the unusual step of suing a reporter and a parent to block the release of records that Multnomah County District Attorney Rod Underhill has ruled are public.
The planned suit, which will seek a declaration from Multnomah County Circuit Court that Underhill's March 20 decision is wrong, stems from a fall public records request from this reporter for a list of PPS employees on paid administrative leave. PPS's interim general counsel, Stephanie Harper, rejected the request, arguing that the records are exempt from disclosure due to the personal privacy of employees, some of whom are put on leave for disciplinary reasons.
The school district's March 27 letter giving notice of the suit represents the latest in a series of clashes with the public over public records and meetings.
Last April, PPS settled a lawsuit brought by Oregon Public Broadcasting in circuit court over the school district's decision to bar the public and the media from advisory meetings about changes to the district's policy on school transfers. A Multnomah County judge had ruled that PPS was within its rights to close the meetings, but the district agreed in the settlement to craft clearer policies around when and how it would limit public access. It subsequently opened its meetings around proposed changes to school boundaries.
Then, in October, Underhill sided with reporters and community members when he issued a stern eight-page rebuke of PPS's foot-dragging on public records requests. The order essentially told PPS it couldn't blame its own choices — i.e. not hiring enough staff to respond to records requests — for its inability to respond to records requests. In that case, PPS turned over the required records.
On March 20, Underhill shot down each of the district's arguments for keeping secret the list of employees on paid administrative leave. "We do not believe," his office wrote, "that a list of people, some of whom may be under investigation, some of whom may be on leave for other reasons, is a document supporting a personnel disciplinary action. At best it is a document, abstracted from other records, that could reveal the existence of a pending disciplinary investigation, but it stretches the meaning of the statute too far to suggest that it could in anyway 'support' a disciplinary action."
Underhill concluded: "[D]isclosure of the fact of an employee's leave and the type of leave is not an unreasonable invasion of privacy."
Harper, in an interview Monday, continued to dispute the DA's line of thinking. She called the new court action "an opportunity to get clarity around this issue," adding that, "when this information is released prematurely … it jeopardizes employees' rights to due process."
Earlier in March, the DA's office did uphold a PPS decision to withhold records from the Portland Tribune regarding a para educator who was disciplined at George Middle School. In that March 8 opinion, the office determined that since the employee did something wrong but the resulting discipline was satisfactory to the school, the employee and the family, the records were not public.
PPS has retained Miller Nash Graham & Dunn law firm to argue its position. Harper said she didn't have an estimate for what PPS might spend on litigation. "I can't predict what the cost may be," she said. "We don't do this very often."
A judge will now decide whether PPS can ignore the DA's order, which called on the district to release similar records to parent activist Kim Sordyl. PPS also is suing Sordyl.
Sordyl says the district's move doesn't fit its stated goal of openness.
"They keep talking about transparency, saying it's so important," she says. "Their actions don't show it's important."
Under Oregon public records law, local district attorneys resolve records disputes between community members, including the media, and public agencies in their counties. The public agencies then have seven days to comply with the DA's decision — or seek a declaratory judgment in circuit court by suing the person who made the request.
The Multnomah County district attorney's office weighs in on an average of 33 public records disputes per year — for a total of 100 cases in the past three years. Only three of those have gone to litigation.
"The system is designed to resolve these things short of litigation," says Jack Orchard, a Portland attorney who represents the Oregon Newspapers Publishers Association, of which the Tribune is a member.
Under the district's previous general counsel, Jollee Patterson, PPS routinely released this type of information.