SALEM — Civil liberties lawyers told the Oregon Court of Appeals on Tuesday that internal records used by a civilian review board to judge the actions of a Eugene police officer should be made public.
The case dates back to 2008, when a police officer twice used a stun gun on protester Ian Van Ornum, who was lying on the ground at an anti-pesticide rally in Eugene.
The Eugene chief of police did not discipline the officer, Judd Warden, but first had to run the decision by the city's Civilian Review Board, which labeled the case a "community impact case," the first one it identified in that way.
As part of their review, the board received internal documents, including an investigator's interview notes, analysis and recommendations.
When the American Civil Liberties Union of Oregon sought those records, city officials cited a provision in Oregon law that permits them to deny records in personnel investigations that don't result in discipline.
A trial court judge agreed with the city and said the burden for proving that the release of the records was in the public interest fell to the ACLU of Oregon.
The organization asked the appeals court to review Lane County Circuit Court Judge Josephine Mooney's finding that it failed to meet that burden.
Oregon public records law instructs government bodies to have a "pro-disclosure bias," but legislators also have built hundreds of exemptions into the law.
In the one the city cited while denying the records, there is a narrow escape hatch for records-seekers: Internal records can be made public if "public interest requires disclosure."
ACLU of Oregon attorney Steven Wilker argued Tuesday that the Van Ornum case met such a bar after it drew intense local media coverage and sparked protests of its own.
That amount of discussion, coupled with the hours spent by the civilian review board reviewing the decision at a public hearing should have satisfied public interest, said Jerome Lidz, an attorney representing the city.
Van Ornum was later found guilty at a jury trial of disorderly conduct and resisting arrest.
Lidz said the civilian review board serves as a proxy for the public, and the fact that they were permitted to review the documents was sufficient.
Wilker countered that opening the files to the public would allow scrutiny of how well the civilian review board was performing.
Lidz said the public had that opportunity at the hearings.
"A three-hour hearing, 16 pages (of transcripts)," Lidz said, "I think that's sufficient to tell the public, how is the board doing."
Appeals court judge Rex Armstrong asked Wilker how he could offer "negative proof" that the public interest wasn't met by the failure to disclose the internal records.
Wilker responded that it falls to public bodies to meet the public-records burden.
"The city can't just punt on that issue," Wilker said, "or in this case, merely hide the ball."