IN THE CIRCUIT COURT OF THE STATE OF ... - DocumentCloud
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IN THE CIRCUIT COURT OF THE STATE OF OREGON
6
FOR THE COUNTY OF MARION
7
CYLVIA HAYES, Plaintiff,
8 V.
9 10
Case No. COMPLAINT FOR DECLARATORY RELIEF
OREGONIAN PUBLISHING COMPANY, LLC, doing business as THE OREGONIAN,
11
NOT SUBJECT TO MANDATORY ARBITRATION
Defendant.
12 13 14
In this action, plaintiff Cylvia Hayes seeks a declaratory judgment establishing that she is not required to produce her email in response to The Oregonian's January
15
29, 2015, public records request issued under the Oregon Public Records Law, ORS
16
192,410, et seq. Ms. Hayes alleges as follows:
17
Parties, Jurisdiction, Venue
18
1.
19
Cy!via Hayes is a resident of Bend, Oregon.
20
2.
21 22
Defendant, Oregonian Publishing Company, LLC, doing business as The Oregonian, is a newspaper with its principal place of business in Portland, Oregon.
23
3.
24
This court has jurisdiction and venue is proper in Marion County as set forth in
25
ORS 192.450(2).
26
III HOE VET BOISE OLSON HOWES
Page 1 - COMPLAINT FOR DECLARATORY RELIEF
ATTORNEYS AT LAW 1000 S.W. BROADWAY, 41500 PORTLAND, OREGON 97205 (503) 228-0497
1
General Allegations
2
4.
3
On or about January 29, 2015, The Oregonian filed a public records request
4
seeking:
5
"[C]opies of all emails concerning state business sent or received by any email address [Ms. Hayes has] used since Jan. 1, 2011, including but not limited to [three listed addresses].
6 7
"Specifically, *** all emails [Ms. Hayes has] sent or received or been cc'd on that contain the acronym 'FLO' or phrase 'first lady', since January 1, 2011 - regardless of where they are currently stored."
8 9 10
5.
11
Ms. Hayes does not have an email address from the State of Oregon. When Ms.
12
Hayes requested a state email address, the Governor's Office determined she was
13
ineligible because she was not a state employee.
14
6. All of the documents that The Oregonian seeks are contained on Ms. Hayes'
15 16
private computer. 7.
17
To the extent that Ms. Hayes communicated by email with state employees on
18 19
their state email address, those emails should be maintained on the state email server
20
and can be easily obtained by means of an appropriate public records request directed
21
to the appropriate state agency.
22
8.
23
On or about February 9, 2015, Ms. Hayes filed an Opposition to the Public
24
Records Petition on several grounds, including that she is not a "public body" or "public
25
official" as those terms are defined in the Oregon Public Records Law.
26
III HOEVET BOISE OLSON HOWES
Page 2 - COMPLAINT FOR DECLARATORY RELIEF
ATTORNEYS AT LAW 1000 S.W. BROADWAY, #1500 PORTLAND, OREGON 97205 (5031228-0497
1
9.
2
On or about February 12, 2015, the Oregon Attorney General's Office granted
3
The Oregonian's Petition and ordered that Ms. Hayes turn over all emails that relate to
4
the conduct of public business.
5
10.
6 7
On February 18, 2015, Ms. Hayes provided notice of her intention to institute proceedings for injunctive or declaratory relief pursuant to ORS 192.450(2).
8 9
CLAIM FOR RELIEF (DECLARATORY RELIEF)
10
11.
11 12
Ms. Hayes realleges and incorporates paragraphs 1-10, as though set forth in full herein. 12.
13
A justiciable controversy presently exists between Ms. Hayes and The Oregonian
14 15
over whether she must turn over all emails which relate to the conduct of public
16
business, under the Public Records Law, ORS 192.420, et seq.
17 18
COUNT 1 (Ms. Hayes is not a "Public Body")
19
13. "Public Bodies" include "every state officer, agency, department, division, bureau,
20 21
board and commission; every county and city governing body, school district, municipal
22
corporation, and any board, department, commission, council or agency thereof, and
23
any other public agency of this state." ORS 192.410(2).
24
//
25
III
26 HOEVET BOISE OLSON HOWES
Page 3- COMPLAINT FOR DECLARATORY RELIEF
ATTORNEYS AT LAW 1000 S.W. BROADWAY, $41500 PORTLAND, OREGON 97205 (5031228-0497
1 2
14. "Public Records" are "any writing that contains information relating to the conduct
3
of the publics (sic) business, * * * prepared, owned, used, or retained by a public body
4
regardless of physical form or characteristics." ORS 192.410(4)(a).
5 6 7
15. Ms. Hayes' emails are not public records subject to disclosure under the Public Records Law because Ms. Hayes is not a statutory "public body." ORS 192.420(1).
8 9
16. Ms. Hayes is not a "public body" within the meaning of ORS 192.410(3) because:
10
a.
Ms. Hayes is not an "entity" that was created by the government;
11
b.
Any functions Ms. Hayes did perform related to the government were
12 13
largely advisory or ceremonial in nature; c.
decisions for the State of Oregon;
14 15
d.
e.
There was no apparent supervision or control by anyone in the government over Ms. Hayes' largely advisory or ceremonial functions; and
18 19
While Ms. Hayes was reimbursed for certain expenses, the State did not compensate or pay her for her services;
16 17
Ms. Hayes did not have actual or apparent authority to make binding
f.
Ms. Hayes is not an employee or officer of the State.
20 21
COUNT 2 (Ms. Hayes is not a "Public Official")
22
17.
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Alternatively, even if Ms. Hayes is somehow deemed a "public body," she is not a
24
"public official" under the government ethics statute because she (1) is not an elected
25
official, (2) has not been appointed to any official position; (3) is not an employee of the
26
State of Oregon; and (4) is not an agent of the State of Oregon. ORS 244.020(14). HOEVET BOISE OLSON HOWES
Page 4- COMPLAINT FOR DECLARATORY RELIEF
ATTORNEYS AT LAW 1000 S.W. BROADWAY, tt1500 PORTLAND, OREGON 97205 (503122A-0497
1
Because she does not have an official public role, Ms. Hayes' personal emails are not
2
public records subject to disclosure.
3 4
COUNT 3 (Invasion of Privacy)
5
18. Requiring Ms. Hayes to produce her emails related to the conduct of the public's
6 7
business would be an unreasonable invasion of her privacy. ORS 192.502(2). 19.
8
As a private citizen, Ms. Hayes had a reasonable expectation of privacy to emails
9 10
on her personal computer. 20.
11
Ms. Hayes should not be required to turn over emails that are of a personal
12 13
nature. ORS 192.502(2).
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COUNT 4 (Right against self-incrimination)
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21.
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Under the Oregon and United States constitutions, ordering Ms. Hayes to provide
17 18 19 20 21
documents that are related to the conduct of public business compels her to admit that responsive emails exist, are in her control, and authenticate that the email relates to state business, violating her right against self-incrimination. See United States v. Hubbell, 530 U.S. 27, 36-37 (2000). 22.
22
Ms. Hayes' constitutional rights supersede the Oregon Public Records Law.
23 24 25 26
/// III I//
HOEVET BOISE OLSON HOWES
Page 5 - COMPLAINT FOR DECLARATORY RELIEF
ATTORNEYS AT LAW 1000 S.W. BROADWAY, #1500 PORTLAND, OREGON 97205 (503122A-0497
1
COUNT 5 (Ms. Hayes must be given reasonable time to comply, and may establish fees reasonably calculated to reimburse her)
2 3
23.
4 5 6
Alternatively, if the court finds that Ms. Hayes' personal emails are subject to disclosure under the Oregon Public Records Law, Ms. Hayes must be given a reasonable time to review her email and determine which emails are responsive.
7
24.
8 9 10 11
If Ms. Hayes is required to produce her emails, she may establish fees reasonably calculated to reimburse her for the actual cost of making the "public records" available, including costs for compiling or tailoring the public records. ORS 192.440(3)(a).
12
25.
13
Ms. Hayes may include in this fee the cost of time spent by her attorney
14
reviewing the requested records, redacting protected material, or segregating the
15
records into exempt and nonexempt records. ORS 192.440(3)(b).
16
26.
17
Ms. Hayes shall not be required to produce emails containing information, the
18
disclosure of which is exempt from disclosure, prohibited, or restricted or otherwise
19
made confidential or privileged under Oregon law. ORS 192.501-502. Specifically, she
20
shall not be required to disclose emails containing attorney-client privileged information.
21
27.
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Ms. Hayes is entitled to recovery of attorney fees incurred in this matter under
23
each Count alleged. ORS 192.490(3).
24
///
25
///
26 HOEVET BOISE OLSON HOWES
Page 6 - COMPLAINT FOR DECLARATORY RELIEF
ATTORNEYS AT LAW 1000 S.W. BROADWAY, tt1500 PORTLAND, OREGON 97205 (503122S-0497
1
WHEREFORE, plaintiff prays for the following relief:
2
1. A declaratory judgment that she is not required to produce her email in
3
response to The Oregonian's January 29, 2015 public records request
4
because she is not a "public body" and her emails are not "public records";
5
2. Alternatively, a declaratory judgment that she is not required to produce her
6
email in response to The Oregonian's January 29, 2015 public records
7
request because she is not a "public official";
8
3. Alternatively, a declaratory judgment that she is not required to produce her
9
email in response to The Oregonian's January 29, 2015 public records
10
request because requiring her to do so would be an unreasonable invasion of
11
her privacy, in violation of ORS 192.502(2);
12
4. Alternatively, a declaratory judgment that she is not required to produce her
13
email in response to The Oregonian's January 29, 2015 public records
14
request because requiring her to do so would be a violation of her state and
15
federal constitutional right against self-incrimination; 5. Alternatively, if the court determines that plaintiff is required to produce her
16 17
email in response to The Oregonian's January 29, 2015 public records, a
18
declaratory judgment establishing that she be given a reasonable time to
19
review the requested documents for responsiveness, and she may establish
20
fees reasonably calculated to reimburse her for the actual cost of making the
21
public records available and this fee may include the cost of time spent by her
22
attorney reviewing the records, redacting material from the records, and
23
segregating them into exempt and non-exempt records;
24
III
25
/I/
26 HOEVET BOISE OLSON HOWES
Page 7 - COMPLAINT FOR DECLARATORY RELIEF
ATTORNEYS AT LAW 1000 S.W. BROADWAY, 41500 PORTLAND, OREGON 97205 (503) 228-0497
1
6. An award of attorney fees, costs and disbursements incurred herein; and
2
7. For such other relief as the court determines necessary or equitable.
3
DATED this 25th day of February, 2015.
4
HOEVET BOISE OLSON HOWES
5 6 7 8
s/ Whitney P. Boise Whitney P. Boise, OSB #851570 Of Attorneys for Defendant Trial Attorney: Whitney P. Boise
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 HOEVET BOISE OLSON HOWES
Page 8- COMPLAINT FOR DECLARATORY RELIEF
ATTORNEYS AT LAW 1000 S.W. BROADWAY, #1500 PORTLAND, OREGON 97205 1503122g-0497
IN THE CIRCUIT COURT OF THE STATE OF OREGON
6
FOR THE COUNTY OF MARION
7
CYLVIA HAYES, Plaintiff,
8 V.
9 10
Case No. COMPLAINT FOR DECLARATORY RELIEF
OREGONIAN PUBLISHING COMPANY, LLC, doing business as THE OREGONIAN,
11
NOT SUBJECT TO MANDATORY ARBITRATION
Defendant.
12 13 14
In this action, plaintiff Cylvia Hayes seeks a declaratory judgment establishing that she is not required to produce her email in response to The Oregonian's January
15
29, 2015, public records request issued under the Oregon Public Records Law, ORS
16
192,410, et seq. Ms. Hayes alleges as follows:
17
Parties, Jurisdiction, Venue
18
1.
19
Cy!via Hayes is a resident of Bend, Oregon.
20
2.
21 22
Defendant, Oregonian Publishing Company, LLC, doing business as The Oregonian, is a newspaper with its principal place of business in Portland, Oregon.
23
3.
24
This court has jurisdiction and venue is proper in Marion County as set forth in
25
ORS 192.450(2).
26
III HOE VET BOISE OLSON HOWES
Page 1 - COMPLAINT FOR DECLARATORY RELIEF
ATTORNEYS AT LAW 1000 S.W. BROADWAY, 41500 PORTLAND, OREGON 97205 (503) 228-0497
1
General Allegations
2
4.
3
On or about January 29, 2015, The Oregonian filed a public records request
4
seeking:
5
"[C]opies of all emails concerning state business sent or received by any email address [Ms. Hayes has] used since Jan. 1, 2011, including but not limited to [three listed addresses].
6 7
"Specifically, *** all emails [Ms. Hayes has] sent or received or been cc'd on that contain the acronym 'FLO' or phrase 'first lady', since January 1, 2011 - regardless of where they are currently stored."
8 9 10
5.
11
Ms. Hayes does not have an email address from the State of Oregon. When Ms.
12
Hayes requested a state email address, the Governor's Office determined she was
13
ineligible because she was not a state employee.
14
6. All of the documents that The Oregonian seeks are contained on Ms. Hayes'
15 16
private computer. 7.
17
To the extent that Ms. Hayes communicated by email with state employees on
18 19
their state email address, those emails should be maintained on the state email server
20
and can be easily obtained by means of an appropriate public records request directed
21
to the appropriate state agency.
22
8.
23
On or about February 9, 2015, Ms. Hayes filed an Opposition to the Public
24
Records Petition on several grounds, including that she is not a "public body" or "public
25
official" as those terms are defined in the Oregon Public Records Law.
26
III HOEVET BOISE OLSON HOWES
Page 2 - COMPLAINT FOR DECLARATORY RELIEF
ATTORNEYS AT LAW 1000 S.W. BROADWAY, #1500 PORTLAND, OREGON 97205 (5031228-0497
1
9.
2
On or about February 12, 2015, the Oregon Attorney General's Office granted
3
The Oregonian's Petition and ordered that Ms. Hayes turn over all emails that relate to
4
the conduct of public business.
5
10.
6 7
On February 18, 2015, Ms. Hayes provided notice of her intention to institute proceedings for injunctive or declaratory relief pursuant to ORS 192.450(2).
8 9
CLAIM FOR RELIEF (DECLARATORY RELIEF)
10
11.
11 12
Ms. Hayes realleges and incorporates paragraphs 1-10, as though set forth in full herein. 12.
13
A justiciable controversy presently exists between Ms. Hayes and The Oregonian
14 15
over whether she must turn over all emails which relate to the conduct of public
16
business, under the Public Records Law, ORS 192.420, et seq.
17 18
COUNT 1 (Ms. Hayes is not a "Public Body")
19
13. "Public Bodies" include "every state officer, agency, department, division, bureau,
20 21
board and commission; every county and city governing body, school district, municipal
22
corporation, and any board, department, commission, council or agency thereof, and
23
any other public agency of this state." ORS 192.410(2).
24
//
25
III
26 HOEVET BOISE OLSON HOWES
Page 3- COMPLAINT FOR DECLARATORY RELIEF
ATTORNEYS AT LAW 1000 S.W. BROADWAY, $41500 PORTLAND, OREGON 97205 (5031228-0497
1 2
14. "Public Records" are "any writing that contains information relating to the conduct
3
of the publics (sic) business, * * * prepared, owned, used, or retained by a public body
4
regardless of physical form or characteristics." ORS 192.410(4)(a).
5 6 7
15. Ms. Hayes' emails are not public records subject to disclosure under the Public Records Law because Ms. Hayes is not a statutory "public body." ORS 192.420(1).
8 9
16. Ms. Hayes is not a "public body" within the meaning of ORS 192.410(3) because:
10
a.
Ms. Hayes is not an "entity" that was created by the government;
11
b.
Any functions Ms. Hayes did perform related to the government were
12 13
largely advisory or ceremonial in nature; c.
decisions for the State of Oregon;
14 15
d.
e.
There was no apparent supervision or control by anyone in the government over Ms. Hayes' largely advisory or ceremonial functions; and
18 19
While Ms. Hayes was reimbursed for certain expenses, the State did not compensate or pay her for her services;
16 17
Ms. Hayes did not have actual or apparent authority to make binding
f.
Ms. Hayes is not an employee or officer of the State.
20 21
COUNT 2 (Ms. Hayes is not a "Public Official")
22
17.
23
Alternatively, even if Ms. Hayes is somehow deemed a "public body," she is not a
24
"public official" under the government ethics statute because she (1) is not an elected
25
official, (2) has not been appointed to any official position; (3) is not an employee of the
26
State of Oregon; and (4) is not an agent of the State of Oregon. ORS 244.020(14). HOEVET BOISE OLSON HOWES
Page 4- COMPLAINT FOR DECLARATORY RELIEF
ATTORNEYS AT LAW 1000 S.W. BROADWAY, tt1500 PORTLAND, OREGON 97205 (503122A-0497
1
Because she does not have an official public role, Ms. Hayes' personal emails are not
2
public records subject to disclosure.
3 4
COUNT 3 (Invasion of Privacy)
5
18. Requiring Ms. Hayes to produce her emails related to the conduct of the public's
6 7
business would be an unreasonable invasion of her privacy. ORS 192.502(2). 19.
8
As a private citizen, Ms. Hayes had a reasonable expectation of privacy to emails
9 10
on her personal computer. 20.
11
Ms. Hayes should not be required to turn over emails that are of a personal
12 13
nature. ORS 192.502(2).
14
COUNT 4 (Right against self-incrimination)
15
21.
16
Under the Oregon and United States constitutions, ordering Ms. Hayes to provide
17 18 19 20 21
documents that are related to the conduct of public business compels her to admit that responsive emails exist, are in her control, and authenticate that the email relates to state business, violating her right against self-incrimination. See United States v. Hubbell, 530 U.S. 27, 36-37 (2000). 22.
22
Ms. Hayes' constitutional rights supersede the Oregon Public Records Law.
23 24 25 26
/// III I//
HOEVET BOISE OLSON HOWES
Page 5 - COMPLAINT FOR DECLARATORY RELIEF
ATTORNEYS AT LAW 1000 S.W. BROADWAY, #1500 PORTLAND, OREGON 97205 (503122A-0497
1
COUNT 5 (Ms. Hayes must be given reasonable time to comply, and may establish fees reasonably calculated to reimburse her)
2 3
23.
4 5 6
Alternatively, if the court finds that Ms. Hayes' personal emails are subject to disclosure under the Oregon Public Records Law, Ms. Hayes must be given a reasonable time to review her email and determine which emails are responsive.
7
24.
8 9 10 11
If Ms. Hayes is required to produce her emails, she may establish fees reasonably calculated to reimburse her for the actual cost of making the "public records" available, including costs for compiling or tailoring the public records. ORS 192.440(3)(a).
12
25.
13
Ms. Hayes may include in this fee the cost of time spent by her attorney
14
reviewing the requested records, redacting protected material, or segregating the
15
records into exempt and nonexempt records. ORS 192.440(3)(b).
16
26.
17
Ms. Hayes shall not be required to produce emails containing information, the
18
disclosure of which is exempt from disclosure, prohibited, or restricted or otherwise
19
made confidential or privileged under Oregon law. ORS 192.501-502. Specifically, she
20
shall not be required to disclose emails containing attorney-client privileged information.
21
27.
22
Ms. Hayes is entitled to recovery of attorney fees incurred in this matter under
23
each Count alleged. ORS 192.490(3).
24
///
25
///
26 HOEVET BOISE OLSON HOWES
Page 6 - COMPLAINT FOR DECLARATORY RELIEF
ATTORNEYS AT LAW 1000 S.W. BROADWAY, tt1500 PORTLAND, OREGON 97205 (503122S-0497
1
WHEREFORE, plaintiff prays for the following relief:
2
1. A declaratory judgment that she is not required to produce her email in
3
response to The Oregonian's January 29, 2015 public records request
4
because she is not a "public body" and her emails are not "public records";
5
2. Alternatively, a declaratory judgment that she is not required to produce her
6
email in response to The Oregonian's January 29, 2015 public records
7
request because she is not a "public official";
8
3. Alternatively, a declaratory judgment that she is not required to produce her
9
email in response to The Oregonian's January 29, 2015 public records
10
request because requiring her to do so would be an unreasonable invasion of
11
her privacy, in violation of ORS 192.502(2);
12
4. Alternatively, a declaratory judgment that she is not required to produce her
13
email in response to The Oregonian's January 29, 2015 public records
14
request because requiring her to do so would be a violation of her state and
15
federal constitutional right against self-incrimination; 5. Alternatively, if the court determines that plaintiff is required to produce her
16 17
email in response to The Oregonian's January 29, 2015 public records, a
18
declaratory judgment establishing that she be given a reasonable time to
19
review the requested documents for responsiveness, and she may establish
20
fees reasonably calculated to reimburse her for the actual cost of making the
21
public records available and this fee may include the cost of time spent by her
22
attorney reviewing the records, redacting material from the records, and
23
segregating them into exempt and non-exempt records;
24
III
25
/I/
26 HOEVET BOISE OLSON HOWES
Page 7 - COMPLAINT FOR DECLARATORY RELIEF
ATTORNEYS AT LAW 1000 S.W. BROADWAY, 41500 PORTLAND, OREGON 97205 (503) 228-0497
1
6. An award of attorney fees, costs and disbursements incurred herein; and
2
7. For such other relief as the court determines necessary or equitable.
3
DATED this 25th day of February, 2015.
4
HOEVET BOISE OLSON HOWES
5 6 7 8
s/ Whitney P. Boise Whitney P. Boise, OSB #851570 Of Attorneys for Defendant Trial Attorney: Whitney P. Boise
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 HOEVET BOISE OLSON HOWES
Page 8- COMPLAINT FOR DECLARATORY RELIEF
ATTORNEYS AT LAW 1000 S.W. BROADWAY, #1500 PORTLAND, OREGON 97205 1503122g-0497
