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An appeal to the district attorney was side-stepped for lack of jurisdiction because Eudaly made the decision herself not to release information from her personal account.

TRIBUNE FILE PHOTO - Portland city Commissioner Chloe Eudaly says her personal Facebook and Twitter accounts are not subject to Oregon Public Records Law. When an elected official creates and moderates a social media forum, who is and is not allowed to participate?

It's a question that may soon need to be resolved, affecting everyone from President Donald Trump to Portland City Commissioner Chloe Eudaly.

Because of Trump's unprecedented use of social media, the issue of blocking constituents for their criticism has reached the U.S. Supreme Court. In Knight First Amendment Institute v. Trump, lawyers are arguing that the president is violating the free-speech rights of those blocked from participating in his Twitter forum. The president posts publicly on a personal account he has had for years, as well as through a separate account from his office as president that is assumed to be run by staff.

On Dec. 4, Portland City Commissioner Chloe Eudaly's office responded to a public information request for the names of those she was blocking from her public Facebook and Twitter accounts. One account was blocked from Facebook and none on Twitter. Eudaly is not releasing information on her block list on her personal account. She said city attorneys advised her last week that her personal account is not related to public business.

"The city attorneys have found that my personal Facebook account is private and are denying and closing a couple of public records requests for access to my personal Facebook account," she wrote in an email to the Tribune.

But one person who testifies regularly at Portland City Council meetings said she is blocked by Eudaly's personal page and is seeking records of a discussion of her testimony. Activist Mimi German appealed the denial of her Nov. 13 request to the Multnomah County District Attorney.

Due to a quirk in Oregon's Public Records Law, the DA can't issue an opinion on whether or not the city commissioner should release the documents. While public records decisions by local government agencies can be appealed to their county district attorney, decisions by elected officials to deny access to records in their custody can only be appealed through the courts.

In a Dec. 7 letter, Deputy District Attorney Adam Gibbs wrote that Eudaly made the decision to deny access to the records herself.

"I have confirmed with the Portland City Attorney's Office that the decision to not provide records in this case was made personally by Commissioner Eudaly," Gibbs said.

German said she is considering her options in filing a lawsuit against Eudaly, in hopes that a judge will compel the commissioner to release the records.

The city will not release information on the public records training provided to Eudaly, citing attorney-client privilege. Eudaly said it briefly touched on social media and she understood that she should avoid conducting city business on her Facebook page.

City paralegal staffer Carrie Wilton wrote in the records denial: "...the mere fact that a public employee posts information on a private social media page which refers to the public body does not transform that private social media page into a public record."

On her public Facebook account, Eudaly said she blocked one account that she felt was devoted entirely to "troll-like behavior" and several more who converged after she posted in support of February's A Day Without Immigrants boycott and strike.

"In both cases I felt justified in blocking them, however we unblocked them as per the direction of the City Attorney," Eudaly wrote in an email. "Now we just hide comments that run afoul of community standards."

New approach

As elected officials navigate the new landscape afforded by social media, key questions remain about how to govern with transparency in the social media era.

"The question I haven't seen addressed is what is the intent of our public records laws?" Eudaly wrote in response to written questions from The Portland Tribune. "In large part, they exist to ensure transparency and accountability in government. It certainly was never my intent, nor do I believe that my talking about issues or events that are already a matter of public record in a private network in any way impacts transparency and accountability."

Eudaly, who only communicated in writing with the Tribune, said she will not release any information about her personal account, but she will also avoid discussing city business on her personal page from now on.

What remains unclear is whether this approach applies retroactively. Freelance journalist Mike Bivins exposed several screenshots Nov. 10 from Eudaly's private Facebook account that appear to discuss city business.

As recently as Wednesday, Nov. 29, Eudaly posted a picture of herself at a city function. Marshall Runkel, her chief of staff, said they met with the city attorney the next day and from that point on, she will no longer post "anything that could even be remotely construed" as city business from that account.

Runkel also said that they will hire someone to manage her public social media account.

"I think we want to avoid even the appearance of any impropriety," he said. "The bottom line is: I don't want to be answering these questions anymore. And neither does the commissioner."


Governor's block list

Governor Kate Brown also just released the list of people her team has blocked on social media. It consists of one account on Facebook and two on Twitter. Brown does not have a personal Facebook account.

Brown's staff declined to comment on the reasons behind the blocks and noted that they hired someone this October who will, for the first time, be dedicated to managing the governor's social media presence.

Natalie King, the newly named staffer, said in an email she expects social media to allow for greater transparency and deeper connections to elected officials over time.

Anyone looking at the comments on Brown's page may be forgiven for thinking that might be a long way off. Many responses are laced with anger and vitriol.

"…Progressive liberal Democrats are destroying Oregon," David Loyd wrote Nov. 6 on a picture of Brown with a child she said received hearing aids through the now-threatened Children's Health Insurance Program.

"Wow, 6 posts before I hit one by an ignorant right-wing dumbass — far fewer than usual!" retorted Gary Hilliard.

"Indeed, a range of sentiment is expressed," King said in her email to the Tribune, noting that credible threats are sent to the state police. "But, it's important to hear both sides of every story and receive the concerns and triumphs people feel toward our policies and actions. We welcome the vast range of opinions and want to hear from all our constituents and social media gives us an additional opportunity to connect."


Shasta Kearns Moore
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