1111 S.W. 2nd Avenue, Portland, OR 97204
RE: Appeal of Public Records Request Denial
Public Record Holder: Portland Police Bureau
Petitioner: Maxine Bernstein of The Oregonian and Denis Theriault of Portland Mercury
Date of Request: October 17,2013
Date of Petition for Review: October 22,2013
Dear Mr. Amberg, Ms. Bemstein, and Mr. Theriault:
This letter is the Clackamas Deputy District Attorney's order regarding two petitions for disclosure of records under the Oregon Public Records Law, ORS 192.410 to 192.505. The petitions, filed by The Oregonian and Portland Mercury, were transferred to Clackamas County due to the active criminal prosecution against Dane Reister in Multnomah County. On October 22, 2013 , our office was asked to direct the City of Portland to make several records available.
The Oregonian requested a copy of the termination letter for former Portland Police Bureau Officer Dane Reister. Portland Mercury requested a copy of the following: (1) the letter of termination issued to Mr. Reister; (2) the training division analysis in Mr. Reister's case; and (3) any findings or report from internal affairs.
These public records requests were denied by the Portland Police Bureau ("PPB"). In its denial, PPB relied upon the conditional personnel discipline exemption under ORS 192.501(12). Petitioners argue that the public interest in disclosure outweighs the public employee's interest in confidentiality, despite imposition of a disciplinary sanction.
The city recognizes the public's broad right to inspect public records and agrees that Mr. Reister's actions involved serious misconduct that resulted in criminal prosecution. However, the city argues that because Officer Reister was a "lower level" employee and because there is a large amount of information currently available to the public (basic details of incident, officer's name, facts of criminal prosecution, civil settlement, and termination) to disclose the requested information would not serve a public purpose. For the following reasons, the petitions are granted.
The Public Records Law is primarily a disclosure law. Exemptions are limited because the law's underlying policy favors public access to government records. Conditional exemptions exempt certain types of information from disclosure unless the public interest requires disclosure. Conditional exemptions require a balancing of the public interests that favor disclosure against those public interests that favor goverrìmental confidentiality, with the presumption always favoring disclosure. Turner v. Reed,22 Or App, 177 , 187, 538 P2d 373 (1975).
The first issue is whether the requested documents are covered by one of the exemptions. ORS 192.501(12) conditionally exempts from disclosure "[a] personnel discipline action, or materials or documents supporting that action.] This exemption applies to a completed disciplinary action when a sanction is imposed." City of Portland v. Rice, 308 Or ll8, I23,775,P2d 1371 (1989). The Oregon Court of Appeals has interpreted ORS 192.50I(12) as providing that all of the documents relating to allegations for which a public body actually imposes discipline upon an employee come within the exemption from disclosure. City of Portland v. Anderson, 163 Or App 550,554,988 P2d 402 (1999). The policy underlying this narrowly construed exemption is to "protect * * * the public employee from ridicule for having been disciplined but does not shield the government from public efforts to obtain knowledge about its processes." City of Portland v. Rice, 308 Or 118, 124,775P2d1371(1989).
Based on a review of the documents at issue, we find that the requested documents relate to allegations against Mr. Reister that resulted in disciplinary action. Therefore, the records are covered by the personnel discipline action exemption.
The next issue is whether the public interest requires disclosure in this particular instance. The public interest typically favors disclosure if the conduct potentially constitutes a criminal offense. Oregonian Publishing v. Portland School Dist. , 144 Or App 180, 187 ,925 P2d 591 (1996). Other factors to consider in weighing the public interest include the employee's position, the basis for disciplinary action, and the extent to which the information has already been made public. Public Record Order November 26,1990, (Nealy/Hogan), Public Record Order January 27, 1992, (Moody).
Here, the public interest clearly favors disclosure. Several factors support this conclusion. There is an ongoing criminal prosecution involving Mr. Reister for the conduct that led to his termination. Mr. Reister's actions resulted in a $2.3 million settlement by the city. He was a field training officer responsible for training others. Finally, there is already a significant amount of information available to the public.
The public has a right to know the facts surrounding these circumstances and to assess the performance of their police officers. Further, there is a strong public interest in being able to evaluate the decision making of the police bureau and the city, to review officer training procedures, and to be informed of the integrity of the police review process. Given these circumstances, the public interest favors disclosure.
Therefore, it is ordered that the City of Portland promptly disclose the records sought in the above petitions including the termination letter, findings, training division review, and internal investigative report.
Deputy District Attorney
Ofc. Dane Reister
Ofc. Dane Reister
Ofc. Dane Reister
Ofc. Dane Reister