A Clackamas County judge has opened a gaping loophole in Oregon’s Public Records Law, and the state Court of Appeals needs to slam it shut, posthaste.

That seems the likely result, fortunately, because Judge Henry C. Breithaupt’s recent oral ruling (he hasn’t submitted a written version) contradicts not only the spirit of that 1973 law but also decades of all-but-universal interpretations of it, including by public officials who are required to comply with the law.

The gist of Breithaupt’s ruling is that records created by local government officials — city councilors, county commissioners and school board members, for instance — are not subject to public disclosure under the law unless the records are “owned, used or retained” by a public body such as a city, county or school district.

If Breithaupt’s interpretation were allowed to become legal precedent, it could potentially allow public officials from cities, counties, school districts and other entities across the state to deprive citizens of access to all manner of documents that the law clearly intends for them to be able to see.

For example, if a city councilor writes something related to city business but doesn’t make a copy available to the city itself, under Breithaupt’s concept that document would not be a public record.

This is such an obvious perversion of the Public Records Law’s purpose — the law defines a public record as “any writing that contains information relating to the conduct of the public’s business” — that it seems unlikely a higher court would agree with Breithaupt.

The problem, as it were, seems to lie with a clause in the law that defines public bodies, which are subject to the law, as “every state officer” but then lists “every county and city governing body (and) school district” but does not, as in the case of state government, specifically list every public officer at the city, county and school district level.

This is the sort of minor oversight that can be easily remedied by the Legislature tweaking the language.

But it hardly justifies reversing decades of precedent which makes it abundantly clear that records created by elected or appointed public officials, whether they work for the state or a city, county or school district, are indeed public records wherever the records happen to be kept.

Duane Bosworth, an attorney who has represented media organizations across the state on public records and meetings issue and has advised the Herald in the past, told The Oregonian that Breithaupt’s ruling should be appealed “because it is a bad precedent.”

Oregon’s public records advocate, Ginger McCall, agrees. She told The Oregonian that Breithaupt’s opinion differs from how she interprets the law, an interpretation she said she shares with the state archivist, attorney general’s office and others. “Everybody,” in fact, is how McCall put it.

Except, it seems, one judge.

— Jayson Jacoby, Baker City Herald editor

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