3 4 IN THE CIRCUIT COURT OF THE STATE OF OREGON 5 FOR THE COUNTY OF GRANT 6 OREGONIAN PUBLISHING COMPANY LLC, an Oregon limited liability 7 corporation; and LES ZAI No. 8 Plaintiffs, COMPLAINT (Oregon Public Records Law) 9 v. : (Not subject to mandatory arbitration) 10 GRANT COUNTY SHERIFF'S OFFI GLENN PALMER, in his official capacity; 11 and SALLY DeFORD, in her official | capacity. | Defendants, Plaintiffs Oregonian Publishing Company LLC and Les Zaitz, (collectively, 15 “Plaintiffs”) allege as follows: 16 INTRODUCTION ‘Main (503) 224-3380 Fax (503) 220-2480 7 1 900 SW Fifth Avenus, Suite 2600, Portland, OR 97208 18 This is an action for declaratory and injunctive relief under the Oregon Public 19 Records Law, ORS 192.410, et seq., to declare certain records to be “public records” and to 20 obtain disclosure of certain records. ai 2. 22 For the past two months, Plaintiffs have made routine public records requests from 23 Defendants, Plaintiffs have sought documents that are and should be readily available, 24 Plaintiffs are not seeking an extraordinary volume of documents, nor are their requests 25 intended for any other purpose than to obtain information essential to the public’s right to 26 know key facts about the activities of public bodies and elected officials, Page | - COMPLAINT 86451710. 0057220. 00160Fax ‘Main (503) 224-3380 ‘900 SW Fifth Avenue, Suite 2600, 1 3. 2 At nearly every tum, however, Plaintifis have met a stone wall of resistance, Defendants’ complete lack of cooperation requires Plaintiffs to initiate this suit to vindicate 3 4 the publi ' interests that the Public Records Law is designed to protect. PARTIES 6 4. 7 Plaintiff Oregonian Publishing Company LLC is an Oregon limited liability 8 corporation. It publishes The Oregonian, a daily newspaper in Portland, both in a print 9 edition and in an electronic edition on its Internet website, OregonLive.com. Plaintiff Les (0 Zaitz is a reporter for The Oregonian/OregonLive. i 5. 12 Defendant Grant County Sheriff's Office (“Sheriff's Office”) is a “public body” 13 within the meaning of the Oregon Public Records Law, ORS 192.410, ef seg. Defendant is 14 required under ORS 192.420 to make available for public inspection “any public records” not 15 otherwise exempt from disclosure under ORS 192.501 to 192.505. 16 6. 7 Defendant Palmer is the elected sheriff of Grant County. He is a “public body” 18 within the meaning of the Oregon Public Records Law, ORS 192.410, et seq. He is an 19 “elected official” as that term is used in ORS 192.465(2) and ORS 192.480. Defendant 20 Palmer is required under ORS 192.420 to make available for public inspection “any public 21 records” not otherwise exempt from disclosure under ORS 192.501 to 192.505. 22 7. 23 Defendant DeFord is a “public body” within the meaning of the Oregon Public 24 Records Law, ORS 192.410, et seq. Defendant DeFord is required under ORS 192.420 to 25 make available for public inspection “any public records” not otherwise exempt from 26 disclosure under ORS 192.501 to 192.505. Page 2 - COMPLAINT 86451710.8 057220- 00160STOEL RIVES ue 900 SW Fifth Avenue, Suite 2600, Portland, OR 97204 “Main (503) 224-3380 Fax (503) 220.2480 1 8. 2 The state and its political subdivisions have a responsibility to ensure orderly retention and destruction of all public records. ORS 192.001(1)(c). The Secretary of State S Archives Division has promulgated rules reiterating that custodians of public records are specifically charged by statute with the responsibility of protecting them. OAR 166-020- 0010(1). Those rules set specific retention schedules for county records, OAR 166-150- 7 0005, which must be followed. ORS 192.108. It is a crime to knowingly destroy, conceal, 8 remove or falsely alter a public record without lawful authority. ORS 162,305. 9 FIRST CLAIM 10 (Public Records Law—Against Defendants Sheriff's Office and Palmer) = 9. 2 Plaintiffs reallege and incorporate by reference paragraphs 1 through 8. 13 10. 4 On February 16, 2016, Plaintiffs sent a letter to Defendant Palmer requesting records 15 under the Public Records Law, ORS 192.410 to 192.505. The requested records included the 16 following categories of documents: 7 1. All emails, received and sent, to your email account of gepalmer400@centurytel.net from Jan. 2, 2016, to 18 present. This request is limited to emails that relate to public business, including but not limited to your 19 performance as sheriff, matters relating to the Hamey County occupation, matters relating to the community 20 meeting in John Day, matters in any way relating to dealings by your or others with militia members, a1 patriots, and others, This request does NOT include purely personal emails that in no manner relate to the 22 conduct of public business. 23 2. The record of all telephone calls received or sent from your cell phone of (541) 620-2420. This can be 24 provided by providing access to your cell phone or by producing printed call records in which calls relating 25 purely to personal business may be redacted. 26 Page 3. - COMPLAINT '86451710.8 0057220. 00160STOEL RIVES ur 900 SW Fifth Avenue, Suite 2600, Portland, OR 97204 Fax (503) 220-2480 ‘Main (503) 224-3380 1 i 2 A copy of the February 16 Request to Palmer is attached as Exhibit 1 and is 3 incorporated herein by reference. 12, As of the date of filing of this complaint, Defendants Sheriff's Office and Palmer have not provided copies of the documents listed in Paragraph 10. Defendant Palmer is an 4 5 6 7 elected official who “claims the tight to withhold disclosure” of those records, within the 8 meaning of the quoted phrase in ORS 192.480, 9 13, 0 Defendant Palmer has stated to Plaintiff Zaitz that there are no emails in existence 11 sent to or received at the email address of gepalmer400@centurytel.net that relate to public 12. business. However, Defendant Sheriff's Office maintains a website at 13 http:/eranteountysherifforegon.com/. Under the “Contact” tab of that web page, the 14 following information appears: 1s “Give Usa Call or Send an Email 16 General Information 7 County Sheriff Glenn Palmer 18 205 South Humbolt Street Canyon City, Oregon 97820 19 Phone: 541-575-1131 7 Email: General Info / Sheriff 21 Civil Deputy Sally Deford 22 205'South Humbolt Street Canyon City, Oregon 97820 23 Phone: 541-575-1131 7 Email: Civil Deputy” See http://granteountysherifforegon.com/office/contact (last visited April 27, 2016), attached 25 hereto as Exhibit 2 26 Page 4 - COMPLAINT 86481710.8 0087220: 00160STOEL RIVES ue ‘900 SW Fifth Avenue, Suite 2600, Portland, OR 9720 ‘Main (503) 224-3380 — Fax (503) 220-2480 26 14. ‘The phrases “General Info / Sheriff” and “Civil Deputy” in the “Contact” information on the Sheriff Office's website quoted in paragraph 13 of this complaint are both hyperlinks that, when clicked, open a draft email for the web page visitor to send, ‘The email addresses that automatically populate the “To” portion of those draft emails are gepalmer400@centurytel net and sedford425@centurytel,net respectively. 15. Plaintiff Zaitz has sent emails and public record requests to Defendant Palmer using the email address gepalmer400@centurytel.net, Defendant Palmer has responded to those emails via return email from that email address. 16, The documents requested by Plaintiffs and listed in Paragraph 10 of this complaint are “public records” within the meaning of that term in ORS 192.410(4). 17. Plaintiffs have a right to inspect and receive copies of the documents listed in Paragraph 10 of this complaint under the Public Records Law, ORS 192.410 to 192.505, and that have not been produced, as detailed in Paragraph 8 of this complaint. Defendant Palmer is required by that Law to make those documents available for Plaintiffs? inspection. 18. Plaintiffs have no adequate remedy at law. 19. ‘The Court should enter a judgment containing (a) a declaration that the documents requested by Plaintiffs but not produced to date, as described in Paragraph 10 of this complaint, are public records that are subject to disclosure to PlaintifiS and (b) an injunction requiring Defendant Palmer to disclose those documents to Plaintiffs. Page 5 - COMPLAINT '86451710.8 057220. 00160STOEL RIVES ue s é 2 A 3 g 2 a B 10 u 12 13 14 15 16 7 18 19 20 a 2 23 24 25 26 20. Plaintiffs are entitled to an award of reasonable costs, disbursements, and attomey fees from defendants under ORS 192.490(3). SECOND CLAIM (Public Records Law—Against All Defendants) ai. Plaintiffs reallege and incorporate by reference Paragraphs 1 through 20. On March 14, 2016, Plaintiffs sent a letter to Defendant DeFord reque 22. ig records under the Public Records Law, ORS 192.410 to 192.505. The records requested in that letter included the following categories of records: 1 ‘The record of the total number of concealed handgun licenses issued by the sheriff's office in 2014, including the Oregon county or state of residence for each issued license, Note I am not requesting specific identifying information about each license holder. The record of the total number of concealed handgun licenses issued by the sheriff's office in 2015, including the Oregon county or state of residence for each issued license. Note I am not requesting specific identifying information about each license holder, ‘The record of the total number of concealed handgun licenses issued by the sheriff's office so far in 2016, including the Oregon county or state of residence for each issued license, Note am not requesting specific identifying information about each license holder. ‘The record of every arrest report in which Glenn Palmer was the primary arresting officer in 2015, ‘The record of crimes reported to the sheriffs office in 2015, including the category of crimes and the number of arrests for each crime caiegory. Page 6 - COMPLAINT '86451710.8 0057220- 00160ite 2600, Portland, OR 97204 STOEL RIVES ue 900 SW Fifth Avenue, “Main (503) 224-3380 Fax (503) 220-2480 1 2 3 4 5 6 7 8 9 0 1 W 12 13 14 15 16 17 18 19 20 2 22 23 24 25 26 23. A copy of the March 14 Request is attached hereto as Exhibit 2 and incorporated herein by reference. As noted in the March 14 Request, Plaintiffs are not seeking records or information that identifies a person as a current or former holder of, or applicant for, a concealed handgun license, Furthermore, to the extent included in the records, identifying information can be redacted as necessary. 24, Plaintiffs received no response to the March 14 Request, and on March 28, 2016, they petitioned the Grant County District Attomey for review of that Request (among others), pursuant to ORS 192.460. 25, On March 29, 2016, Defendant Palmer sent an email to Plaintiff Zaitz, stating that he would make certain documents available. On March 31, Defendant Palmer provided Zaitz with an invoice relating to his official cell phone number ((541) 620-1493) and with certain records relating to the appointment of two deputy sheriff’s—Judy Kerr and Terry George. Defendant Palmer provided handwritten notations next to each paragraph of the records requested in March 2016, as listed in the petition to the District Attomey. In most, instances—including with respect to the records listed in Paragraph 20—Defendant Palmer indicated “None” next to the requests. These notations did not comply with Defendant Palmer's obligation under the Public Records Law to respond accurately to a public records request, A copy of this response is attached as Exhibit 3 and incorporated herein by reference 26. On April 4, 2016, the Grant County District Attorney issued an Order to Make Available for Inspection requiring Defendant Sheriff's Office and Defendant DeFord to make Page 7 - COMPLAINT '86451710,8 0057220. 0060‘Main (503) 224-3380 Fax (503) 220-2480 STOEL RIVES ue 900 SW Fifth Avenue, Suite 2600, Portland, OR 97204 1 available for inspection all of the documents requested in the March 14 Request. A copy of 2 the April 4 Order is attached as Exhibit 4 and is incorporated herein by reference, 3 20. 4 ‘The documents requested by Plaintiffs and listed in Paragraph 22 of this complaint 5 are “public records” within the meaning of that term in ORS 192,410(4). 28. Plaintiffs have a right to inspect and receive copies of the documents listed in 8 Paragraph 22 of this complaint under the Public Records Law, ORS 192.410 to 192.505, that 9 have not been received to date, Defendants are required by that Law to make those 10 documents available for Plaintiffs’ inspection. ll 29, 12 Plaintiff's have no adequate remedy at law. 13 30, 14 ‘The Court should enter a judgment containing (a) a declaration that the documents 15 requested by Plaintiff's and not received to date, as described in Paragraph 22 of this 16 complaint, are public records that are subject to disclosure to Plaintiffs and (b) an injunction 17 requiring Defendants to disclose those documents to Plaintiffs, 18 31. 19 Plaintiffs are entitled to an award of reasonable costs, disbursements, and attomey 20 fees from Defendants under ORS 192.490(3). 21 THIRD CLAIM 22 (Public Records Law—Against Defendants Sheriff's Office and Palmer) 23 32. 24 Plaintiffs reallege and incorporate by reference Paragraphs 1 through 31. 25 26 Page 8 - COMPLAINT '86481710.8 057220- 001601 33, Fas (503) 220-2480 STOEL RIVES ur ‘900 SW Fifth Avenue, Suite 2600, Portland, OR 97208 ‘Main (503) 224.3380 2 On March 31, 2016, Plaintiffs sent a letter to Defendant Palmer requesting records 3 under the Public Records Law, ORS 192.410 to 192.505. The records requested in that letter 4 are as follows: 5 1. Records of all communications in whatever form 6 between you and Salvatore “Sal” Cascuccio in any manner regarding concealed handgun licenses, his role 7 as Grant County special deputy, and his role in processing CHL applications and permits. This includes 8 but is not limited to letters, memos, emails and any : other record. 2. Records of all communications in whatever form 10 between you and the Oregon Firearms Federation in any manner regarding concealed handgun licenses. This ul includes but is not limited to letters, memos, emails and any other record, 12 3. Records of all communications in whatever form B between you and FRED GRANT KELLY, including u“ any attachments, research materials or any other record, 4. Records ofall your posts, comments, and other entries 15 from Jan. 1, 2016, to present made to your two Facebook accounts. This request covers only material 16 related to your position as sheriff, produced in your position as sheriff, or otherwise relating to the conduct. 17 of public business. This request does not cover purely 7 personal social media entries. 19 34, 20 A copy of the March 31 Request to Palmer is attached as Exhibit 5 and is 21 incorporated herein by reference. 22 35. 23 No documents were produced in response to the March 31 Request, and plaintiffs 24 have received no response from Defendant Palmer to their March 31 Request. 25 26 Page 9 - COMPLAINT '86451710,8 0057220. 00160STOEL RIVES up 900 SW Fifth Avenue, Suite 2600, Pordland, OR 97204 Main (503) 224-3380 Fax (503) 220-2480 1 36. ‘The documents requested by Plaintifi’s and listed in Paragraph 33 of this complaint are “public records” within the meaning of that term in ORS 192.410(4). 37. Plaintiff's have a right to inspect and receive copies of the documents listed in 2 3 4 5 6 Paragraph 33 of this complaint under the Public Records Law, ORS 192.410 to 192.505, 7 Defendants are required by that Law to make those documents available for Plaintifis? 8 inspection, 9 38. 0 Plaintiffs have no adequate remedy at law. u 39. 12 ‘The Court should enter a judgment containing (a) a declaration that the documents 13 requested by Plaintiffs, as described in Paragraph 33 of this complaint, are public records that 14 are subject to disclosure to Plaintifis and (b) an injunction requiring Defendant Palmer to 15 disclose those documents to Plaintiffs 16 40. 7 Plaintifis are entitled to an award of reasonable costs, disbursements, and attomey 18 fees from defendants under ORS 192.490(3). 19 FOURTH CLAIM 20 @ublic Records Law—Against Defendants Sheriff's Office and Palmer) 21 41. 22 Plaintiffs reallege and incorporate by reference Paragraphs 1 through 40. 23 42. 24 On April 26, 2016, Plaintiffs sent a letter to the custodian of records of Defendant 25 Sheriff's Office requesting records under the Public Records Law, ORS 192.410 to 192.505. 26 The records requested in that letter included the following categories of documents: Page 10 - COMPLAINT 64517103 0057220- 00160‘Main (503) 224-3380 Fax (503) 220-2480 STOEL RIVES ue 900 SW Fifth Avenue, Suite 2600, Portland, OR 97204 10 Ml 12 13 14 15 16 1. Allemails, received and sent, to Sheriff Glenn Palmer's email account of gepalmer400@centurytel.net for the periods: a. Nov. 1, 2015, to Dee. 31, 2015 b. Feb. 16, 2016, to present This request is limited to emails that relate to public business, including but not limited to your performance as sheriff. This request does NOT include purely personal emails that in no manner relate to the conduct of public business. 2. The billing statement covering telephone calls received or sent from cell phone of (541) 620-2420 for the periods: a, Nov. 1, 2015, to Dee. 31, 2015 b. Feb. 16, 2016, to present 3. Sheriff Glenn Palmer’s duty “permanent notebook” for the period Nov. 1, 2015, through present. Section 58 of the Grant County Sheriff's Office Policy and Procedure Manual outlines the requirement for such notebook. 4. A copy of the April 26 Request to Palmer is attached as Exhibit 6 and is incorporated 7 herein by reference. 18 19 24 44. On April 27, 2016, Defendant Palmer purported to respond to the April 26 Request to Palmer with handwritten notations next to the records request. In most instances—ineluding with respect to the documents requested in Paragraph 42(1)-(2)—Defendant Palmer denied the existence of records. With respect the documents requested in Paragraph 40(3), 3 Defendant Palmer stated: “Notebook is not a public record.” A copy of this response is 4 attached as Exhibit 7 and incorporated herein by reference. 25 26 Page 11 - COMPLAINT 6451710.80057220- 00160,Fax (503) 220-2480 Main (503) 224-3380 STOEL RIVES tie 900 SW Fifth Avenue, Suite 2600, Portland, OR 97204 1 45, 2 The documents requested by Plaintiffs, listed in Paragraph 42 of this complaint, and 3 not received to date are “public records” within the meaning of that term in ORS 192.410(4).. 4 46. 3 Plaintiffs have a right to inspect and receive copies of the documents listed in 6 Paragraph 42 of this complaint under the Public Records Law, ORS 192.410 to 192.505, that 7 have not been received to date, Defendant Palmer is required by that Law to make those 8 documents available for Plaintiffs’ inspection. 9 47. 10 Plaintiffs have no adequate remedy at law, ul 48, 12 The Court should enter a judgment containing (a) a declaration that the documents 13 requested by Plaintiffs, as described in Paragraph 42 of this complaint, and not received to 14 date are public records that are subject to disclosure to Plaintiffs and (b) an injunction 15 requiring Defendant Palmer to disclose those documents to Plaintiffs. 16 49, 7 Plaintiffs are entitled to an award of reasonable costs, disbursements, and attorney 18 fees from defendants under ORS 192.490(3). 19 FIFTH CLAIM 20 (Public Records Law—Against Defendants Sheriff's Office and Palmer) 21 50, 2 Plaintiffs reallege and incorporate by reference Paragraphs | through 49, 23, SL 24 On April 14, 2016, Plaintiffs sent a public records request to the Records Custodian 25 of the Grant County Sheriff's Office seeking ten categories of documents (the “April 14 26 Page 12 - COMPLAINT £86451710.8 0057220- 00160,STOEL RIVES tte 900 SW Fifth Avenue, Suite 2600, Portland, OR 97204 Fas (503) 220-2480 ‘Main (503) 224-3380 1 Request”). ‘The records requested in the April 14 Request included the following categories 2 of documents: 3 1. All reports, memos, officer notes concerning the investigation and arrest of Scott Willingham in March 2016 in Mount Vernon, Oregon. This includes but is not limited to any memo, note or other record generated by the sheriff and any video or audio recording of Mr. Willingham’s appearance at the sheriff's office prior to his arrest, . All reports, memos, officer notes, audio and video recordings concerning the purported contaminated envelope episode in 2015 that triggered a haz mat response, This includes but is not limited to the record of any’ worker’s compensation claim filed by any agent of the sheriff's office. Co daw 10 i 52, 12 On April 15, 2016, Defendant Palmer responded on behalf of the Sheriff's Office by 13. writing handwritten responses next to the individual requests. A copy of the request and the 14 handwritten responses are attached hereto as Exhibit 8. Defendant Palmer is an elected 15 official who “claims the right to withhold disclosure” of those records, within the meaning of 16 the quoted phrase in ORS 192.480. 7 33. 18 No records were provided in response to the April 14 Request. Instead, as to the 19 documents requested in Paragraph 49, Defendant Palmer responded: “Active case” and 20 “Investigative reports are not a public record,” respectively. ‘These notations did not comply 21 with Defendant Palmers obligation under the Public Records Law to respond accurately toa 22 public records request. 23 54, 24. ‘The documents requested by Plaintiffs, listed in Paragraph 51 of this complaint are 25 “public records” within the meaning of that term in ORS 192.410(4). 26 Page 13 - COMPLAINT 86451710.8 0957220. 00160‘Main (503} 224-3380 Fax (503) 220-2480 STOEL RIVES ur 900 SW Fifth Avenue, Suite 2600, Portland, OR 97204 1 55. 2 Plaintiffs have a right to inspect and receive copies of the documents listed in 3 Paragraph 51 of this complaint under the Public Records Law, ORS 192.410 to 192.505, Defendants are required by that Law to make those documents available for Plaintifis” inspection. 56, Plaintiffs have no adequate remedy at law. 57. Caer anea ‘The Court should enter a judgment containing (a) a declaration that the documents 10 requested by Plaintiffs, as described in Paragraph 51 of this complaint are public records that 11 are subject to disclosure to Plaintiffs and (b) an injunction requiring Defendant Palmer to 12 disclose those documents to Plaintifts, 13 58. 14 Plaintiffs are entitled to an award of reasonable costs, disbursements, and attomey 15 fees from defendants under ORS 192.490(3). 16 WHEREFORE, Plaintiffs pray for a judgment as follows: 7 1. Declaring that the documents requested by Plaintiffs that fall within the 18 requests quoted in paragraphs 10, 22, 33, 42, and 51 of this complaint are public records that 19 must be disclosed to Plaintiffs and to the public pursuant to the Public Records law. 20 2. Decl ing that Defendants have the duty to disclose those documents. 21 3. Requiring Defendants to disclose the requested documents for Plaintiffs? 22 inspection and to make copies of those documents available to plaintiff. 23 4. Awarding costs, disbursements, and reasonable attomey fees to Plaintiffs; and 24 5. Granting such other relief as the Court deems equitable and just. 25 26 Page 14 - COMPLAINT 86451710.8 08720. 00t60STOEL RIVES ue ‘900 SW Fifth Avent, Suite 2600, Portiand, OR 97204 Fax (503) 220-2480 ‘Main (503) 224-3380 Sew rxausoun 1 WW 12 1B 14 15 16 7 18 19 20 an 22 23 24 25 26 DATED: May |, 2016. Page 15 - COMPLAINT '86451710.8 0957220- 00160 STOEL RIVES ur G2 CHARLES F. HINKLE, OSB No. 710839 charles.hinkle@stoel.com BRAD S. DANIELS, OSB No. 025178 brad.daniels@stoel.com Attorneys for Plaintifiis