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DA affirms MT's public records request

Jackson County District Attorney Beth Heckert has upheld a Mail Tribune public records request seeking performance reviews of Medford City Manager Eric Swanson over the past two years.

“The public has a right to know how he is performing his job,” Heckert wrote in a three-page letter sent out Dec. 1.

The Mail Tribune on Oct. 30 requested copies of Swanson’s written performance reviews, which were discussed in executive sessions.

“The City respectfully declines your request for copies of all performance reviews related to the City Manager over the past two years,” stated deputy city attorney Lori Cooper in a Nov. 7 email.

Cooper stated the city manager’s performance evaluations discussed in executive sessions would be rendered meaningless if the public records used in those sessions were disclosed.

The Mail Tribune did not ask for transcripts of the give-and-take between councilors in executive sessions but only of written evaluations about Swanson, who receives an annual salary of $145,008 plus benefits.

After the city rejected the Mail Tribune’s request, the newspaper appealed the decision to Heckert.

According to Heckert, the city maintains that performance evaluations are protected from public disclosure because it would be an unreasonable invasion of privacy.

“The city asserts that the evaluations were of an advisory nature but fails to meet the burden of showing that the public interest in frank communication clearly outweighs the public interest in disclosure,” Heckert wrote. “I don’t find it persuasive that the council members would not have a frank and uninhibited evaluation of the city manager if they thought the comments would become public.”

Also, the city told Heckert that when council members submitted their comments, they did so with the understanding they would be confidential.

Heckert wrote, “However, the information submitted by the council members is not the type of material that they would have only submitted under an assertion of confidentiality.”

To resolve the confidentiality issue, Heckert decided that the names of the councilors be redacted in the performance reviews.

“I do not believe the public is any better informed of the city manager’s performance by specifying who made the comment,” she stated. “Any personal identifiers may also be redacted. The remaining materials should be disclosed.”

Heckert said the city doesn’t have a method of demonstrating to the public whether the city manager is performing his functions adequately.

The city provided Heckert with two written performance evaluations, covering the periods from June 18, 2013 to June 17, 2014 and from June 18, 2013 to June 17, 2013. A third self-evaluation for Swanson was also reviewed.

Heckert cited Oregon Revised Statute 192.420, which governs public bodies and the public records law.

“The Public Records Law is primarily a disclosure law, rather than a confidentiality law,” Heckert stated. “’Exemptions … are limited in their nature and scope of application because the general policy of the law favors public access to government records.’”

Mail Tribune Editor Bob Hunter said he's glad to see the district attorney agrees that the performance reviews are public record.

"We think it's important that the public be able to judge for themselves how the highest paid city official is performing because, after all, the public is paying that salary," Hunter said. "Oregon's public records laws are clear on this topic and we hope the City Council will recognize that and make the documents available immediately."

The Mail Tribune has received performance reviews of other top administrators including county Administrator Danny Jordan. 

Lori Cooper, deputy city attorney, said she hasn’t received any direction from the council at this point and wouldn’t confirm whether an executive session scheduled for today would be a discussion of the public records request.

She said the city has until Monday to comply with Heckert’s decision or appeal it to Jackson County Circuit Court.

“We’re considering our options,” she said.

Reach reporter Damian Mann at 541-776-4476 or dmann@mailtribune.com. Follow him on Twitter at www.twitter.com/reporterdm.