[Note: I’ve updated the post (at 3:45pm) to include a response from the Deputy City Attorney.]
Click to enlarge, (240k, jpg)
The Records Division of the Portland Police Bureau has denied a request for information made by lawyer Christopher Heaps in an ongoing effort to utilize an Oregon statute to file “citizen initiated citations,” in a series of recent traffic collisions.
Claiming that they made a mistake in releasing information about Lisa Wheeler that led to her no-contest plea in the case where she was at fault for hitting cyclist Siobhan Doyle but did not receive a citation at the scene, the Records Division has now denied a similar request for information made by Heaps in a separate case.
“We’re certainly not trying to get in the way of the process, we just feel we were caught between a rock and a hard place.”
–Deputy City Attorney Ellen Osoinach
According to Heaps, an Oregon driver’s license number and a home phone number are required in order to properly file a citizen-initiated citation, a process which is defined by an Oregon statute (ORS 153.058). A citizen going through that process must fill out a traffic citation (which requires an ODL and a home phone number) and file it with the court, before it is then served on the defendant.
But the Records Division, based on advice from Deputy City Attorney and Police Bureau legal advisor Ellen Osoinach, says that information is protected by the Oregon Privacy Act and they have officially denied Heaps’ request.
Osoinach says that Heaps was given the information in the Wheeler case because the Bureau’s records custodian, Christopher Paille, made an incorrect assumption. “He [Paille] assumed Mr. Heaps, who signed his request as working for Stoel Rives [a law office in Portland] was an attorney involved with the [Wheeler/Doyle] case, so he released the information. In all honesty, that shouldn’t have happened.”
“It seems to me like they’re simply trying to put an end to people using this law.”
–Christopher Heaps
The reason given in the denial is that, “disclosure would constitute an unreasonable invasion of privacy,” and that, “Protecting social security numbers, dates of birth, and driver’s license numbers is necessary to combat the burgeoning crime of identity theft.” The denial also states that driver’s license numbers “have been redacted under Driver’s Privacy Protection Act”.
Heaps says the decision, “prevents someone from filling out the citation and therefore makes it very difficult, if not impossible to complete this process.” He adds that, “I’ve looked at the privacy statute and, while I’m no expert, I don’t think it was intended to protect driver’s licenses and phone numbers when in a police report.”
But to their defense, Osoinach says protecting public records is always a balancing act and she insists the denial has nothing to do with trying to stymie Heaps’ citizen-initiated citation effort. Osoinach contends that it is standard policy for them to disclose information only to parties directly involved with the collision or their lawyers.
“If the person, or the estate of the person involved in the accident was requesting the record,” said Osoinach, “then there wouldn’t be an issue with the police releasing the information.”
The Oregon statute cited in the denial is 192.502(2) and the relevant provision states:
“(2) Information of a personal nature such as but not limited to that kept in a personal, medical or similar file, if public disclosure would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in the particular instance. The party seeking disclosure shall have the burden of showing that public disclosure would not constitute an unreasonable invasion of privacy.”
Heaps doesn’t think his request, which is based on performing the tasks laid out in an Oregon statute, is “unreasonable” and he questions the true intent of the denial. He also points out that in the same document where the defendant’s driver’s license number and home phone number were redacted, the home address was not.
Heaps says, “If they think an ODL and a phone number are ‘unreasonable’ invasion, why would they give me the home address? It just doesn’t make any sense.”
But according to Osoinach it is common for them to disclose home addresses, yet not phone and driver’s license numbers. “I think reasonable minds can differ on what constitutes an unreasonable invasion of privacy,” she said.
“The important thing here,” says Heaps, “is that they’re essentially making it impossible, or very difficult, for people to file a citizen initiated citation. Their interpretation of privacy laws contradict an Oregon statute.” The experience has led Heaps to question the motives behind the decision, “Since they initially released the information and now they’ve suddenly changed course, it seems to me like they’re simply trying to put an end to people using this law.”
But the City Attorney’s office says that is not the case. Osoinach says, “We’re certainly not trying to get in the way of the process, but felt we were in between a rock and hard place. The timing of this denial couldn’t be worse in making it look like we have an ulterior motive in doing this, but it certainly had nothing to do with the fact that Mr. Heaps is working on a citizen-initiated citation. Citizens entrust us with private information and we feel a responsibility to protect it.”
After his success with the Doyle case, Heaps is now going after Bryan Lowes, the driver of the truck involved in the collision that took the life of Brett Jarolimek back in October. Heaps plans to meet with the Jarolimek family’s lawyer next week .
Heaps has not yet decided whether he will appeal this denial to the District Attorney saying, “It would take a lot of time to prepare that appeal, but then again, I don’t want this decision to set a precedent that makes this process impossible in the future.”
Thanks for reading.
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I guess he should have just asked nicely. If he just changed his tone a bit?
What is the word, maybe showed some humility? Perhaps some begging is in order?
Did he offer to wash their cars or be a good neighbor?
I know! He wasn\’t wearing his special helmet when he asked.
Doh!
Normally, I\’d say \”talk to an attorney\”, but ….
It\’s possible that the denial is based on a \”mistake\” made in providing this information, but the outcome seems all too conveniently stifling the very purpose of this statute. The fact that the statute allowing citizen citations even exists amounts (imo) to \”reasonable\” need to access to the required data. If the DA disagrees, let me know how much we need to pitch in for you to fight this.
Yours is an admirable job!
I hope Mr. Heaps sues. The police regularly flout the Oregon public records law and often don\’t even pretend to be responsive. I have made requests that were summarily rejected–and then got a bill for the time the police claimed they spent writing the letter rejecting my request. (That invoice was withdrawn after I filed a protest with the mayor.)
In this specific case, if Mr. Heaps wants the truck driver information perhaps he should write the company that employed the driver. Obviously they have the information and might not want to appear obstructionist in this matter.
Outrageous! I\’ve followed this since it was first posted, and I am still pulling for Ms. Doyle. I was so excited to see Mr. Heaps rise to the occasion. Good show! If the laws that are on the books could be enforced, just given half a chance to work, I personally think that is a step toward safer streets. Not more, and more, and more (Obviously slated to be selectively enforced.) laws.
No more paint. No more signs. Just let the system work, and see if more is necessary, after what\’s already been done, has failed. If that makes me a Neo-con-pig, then I guess I deserve that. With that, I hope Ms. Doyle is all healed up, and enjoying the weather on two-wheels.
I applaud a.o.\’s efforts, but I am 100% behind NOT giving out that type of information (ODL, address, phone number, etc) to just any citizen asking for it.
The process just needs tweaking to protect that kind of information — the form can be filled out to a certain level by the citizen, and then there needs to be someone at the court who can access the private information and complete the form.
It\’s already way too easy for people to get information that directly leads to the ability of identify theft, etc.
Can Heaps initiate a citizen citation for obstruction of justice?
This seems fishy at best. The Oregon DMV has apage detailing a drivers responsibilities in an accident.
http://www.oregon.gov/ODOT/DMV/driverid/accidentresp.shtml
3. Exchange Information (printable checklist to keep in your car)
Give to the other driver, passengers in the vehicle, or any injured pedestrian your:
a) Name,
b) Address,
c) Driver license number,
d) License plate number of your vehicle, and
e) Your insurance information.
So I guess if you\’re going to hit someone and want the full protection of the police department it is best to kill them so they can\’t ask for this information at the scene.
I guess Chris will just have to go to the black market to gather this information now (you know it\’s out there…).
Either the information requirements for filing the citizen citation or the exact definition of the privacy law now need to be revised to correct this loophole. Let\’s put this one on the BTA\’s list for what we would like to see happen..and don\’t forget to write to your legislators. \”Unreasonable invasion of privacy\” has to be better defined in the face of the consequence of an action that leads to injury or death.
Also from DMV
\”Personal information in driving records is protected and only released to qualified entities under Oregon\’s Record Privacy Law (ORS 802.175-802.191). These are generally businesses such as law enforcement agencies, insurance companies, and attorneys. Personal information is name, address, telephone number and driver license, permit or identification number. Access to confidential information such as your Social Security Number and DMV photograph is highly restricted. Social Security Numbers are disclosed only to qualified government agencies for purposes such as child support enforcement and law enforcement investigations. DMV photographs are provided only to law enforcement officials.\”
When a collision occurs and the police are called to respond, don\’t they have to fill out an \”exchange of paperwork\” form (with name and insurance info), regardless of whether or not they actually file a report or issue a citation? And doesn\’t that form include drivers\’ license and home phone number info? Seems like it should, if it doesn\’t. That would close a good portion of the loophole, correct?
Ron, we tried having the PPB give the info directly to the Court, but as soon as a citation is filed the information becomes a public record in the citation complaint. Thus, if you\’ve ever received a traffic citation (like me), your ODL # and phone number, and lots of other info about you, are in the public domain. So it\’s not like people can\’t already get this information – just not easily and not if you want to use the law, as our Legislature intended, to file a citizen-initiated citation complaint.
What I absolutely cannot wrap my mind around is why it is, according to the PPB, an \”unreasonable invasion of privacy\” for them to give out someone\’s ODL # but not their home address.
The stated concern is that the information could be used to harass Mr. Lowes. I know how I can use his home address to harass him (not that I ever would), yet I and everyone who requests the police report can get that. But how can I use his ODL # to harass him?
Again, this simply makes no sense. Unless…
$#7: ORS 802.175-802.191 is not relevant here. This information is not contained in anyone\’s personal driving record. It is in a police report.
Yes, Understood but it illustrates that this information is given out and therefor undermines the police departments arguement. With respect to this specific case doesn\’t this truck driver have an extensive history traffic infractions? It seems completely reasonable that the families attorney should then be able to access this information through the DMV as a way to obtain justice in this matter.
Oh come on, everyone knows that Oregon statues are just there to look pretty
This request is concerning Jarolimek\’s case, which was a fatal accident. Perhaps the rules for a fatal are more strict?
a.o. #12
I hear ya, but it\’s not right just because it\’s already happening (else lots of pretty bad things would be right).
A drivers license #, address, and phone number go a long ways to hijacking an identity.
The citizen citation process should be fixed so that we don\’t create yet another method for acquiring personal information.
Just saying… 🙂
I understand your concern, Ron. You won\’t find a bigger privacy rights advocate than me. But my point is: I can get the necessary information other ways, so why is the PPB making it harder for me?
I think about 25$ can get you this info. on the internet…background searches are cheap. Whitepages.com has about 1/2 of that stuff too…and is cross-referenced to your family members much of the time…
this does sound a bit fishy…but the PPB may have their reasons…
anyone, anyone, anyone know their reasons?
PoPo again seems to be showing they interpret laws to fit their purposes. I heard this disturbing story from a close friend a few years ago so I don\’t doubt its veracity.
He told me about a co-worker who was on a recreational road ride one Saturday afternoon. A person in a pick up truck took offense to his using the road so he basically ran him off the road. The rider called the cops and caught up to the guy at traffic light. The cops responded pretty quickly so the police, the truck driver and cyclist were all on the scene at the same time.
The driver was pretty upset and hostile about the cyclist being in the road. While one cop was trying to calm him down, the other cop took him aside. The cop told my friend\’s co-worker that he could press charges for assault, but said he should think twice about it because the complaint would be public record and the cyclist\’s personal info (name and address) would be on the complaint. The cop then said \”do you really want this crazy driver to know where you live so he can do something worse to you?\”
Please note: I have heard back from the Deputy City Attorney involved with this story and I have updated the post with her comments.
Seems like she is saying they will have no problem turning that information over to the lawyer working for Brett\’s family…
exactly Bjorn.
I\’m feeling a little dense here. If Heaps had actually been representing Doyle, or if Doyle had personally requested the information, PPB would have given the information, yes?
It sounds like Heaps is annoyed because he can\’t initiate a traffic complaint when he isn\’t even involved with the case.
[Insert lawyer joke here.]
I don\’t see how PPB\’s actions are obstructive. What am I missing here?
EBlair, #3:
Employers cannot give out that information.
Besides, the state enacted a new law called the Oregon Identity Theft Protection Act, so employers are even more on the hook for keeping this kind of stuff private.
Why not have the Jarolimek family\’s lawyer get the info instead? From the article, it sounds like the lawyers for the family would have a much easier time getting it than Citizen Heaps.
Sounds like they want a.O. to jump through more hoops.
Jason Penney:
Jason Penney #25. No. Heapes is representing the citizens of the City of Portland to see that motorists who are accused of violations of the vehicle code are brought to justice or at least get their day in court.
I\’m plenty upset that citizens even have to go through this special effort because the Portland Police Bureau is refusing to do their job.
If you \”must\” give out your drivers license number when involved in an accident, as per the DMV, I don\’t see how they can claim that they can\’t release that information to a citizen who has a legal right to file the citizen initiated complaint.
Give me a break.
I\’ll help with the cost if you decide to appeal this. Let me know how to donate
I don\’t care how much PPB says they\’re not trying to obstruct the citizen citation process, this looks like they\’re trying to obstruct the citizen citation process and even moreso the more they say they\’re not.
Now I\’m slightly biased because someone in GPD decided to throw the physical evidence in my case in the trash, but isn\’t preventing a citizen citation from being filed an obstruction of justice?
Well, if you have an address and a name, it isn\’t hard to find a phone number, it is in the phone book, (printed one too, if they\’ve lived there more than a year.)
And given that the driver in this case has had more than his share of violations, again, it shouldn\’t be hard to find one of those, again, with his license number on it. (Unless they give you a new number after they re-instate yours. I don\’t know, I\’ve never lost mine in the first place.)
I am 100% for requiring the government to protect my personal information. If they gave out my home address or ANY personal data to an individual, I\’d be very angry. I\’m already very angry at the Washington County government for selling the database of all registered voters to ANYONE who is willing to pay for it. I think it sells for $500. It puts people at extreme risk for a lot of crimes, including (just to name two): identity theft and home invasion. They should be imprisoned for selling that information.
I do think that ANYONE should be able to file charges against the driver of an automobile who violates the law, if they have evidence to prove they did it. I think an individual should be able to submit a complaint to the police and have the police track down and charge the person with the violation, just as a policeman would do if he had witnessed the violation.
I do not think that a phone number is required for filing a complaint or am I mistaken? Here is the statute quoted in the original story above. Nowhere does it say a drivers license number or phone number is required:
153.058 Initiation of violation proceeding by private party. (1) A person other than an enforcement officer may commence a violation proceeding by filing a complaint with a court that has jurisdiction over the alleged violation. The filing of the complaint is subject to ORS 153.048. The complaint shall be entered by the court in the court record.
(2) A complaint under this section must contain:
(a) The name of the court, the name and address of the person bringing the action and the name and address of the defendant.
welcome to 1984…er…2008
:-O
Heaps embarrassed the thin-skinned cops once by doing their job better than they could. Damn straight their going close ranks and not let that happen again. Cops don\’t want to have a bunch vigilantes on their hand, especially when these vigilantes are showing them up.
Kg your pen has withering poetry in post 4:
\”So I guess if you\’re going to hit someone and want the full protection of the police department it is best to kill them so they can\’t ask for this information at the scene.\”
Cyclists in similar incidences in Portland may also try checking with Washington State…as they may be from up here…thus avoiding this new road block.
Perhaps the BTA should offer to each of its members…a form of roadside assistance…to be the entity to request this exchange of information after a crash…as most cyclists will likely be too incapacitated to ask for it at that time or unaware of the processes. And too bad that the BTA does also not have a trained crash investigation role too…to keep PPB on track and the car insurance industry to be ________.
A couple of things, a.O.:
1. The PPB is making it \”harder for you\” to obtain the information because, as the City Attorney noted, the PPB is the trusted keeper of that information. If the PPB gave out his personal identifying information and somehow it were used unlawfully, the PPB would be liable. Maybe you should read the public records laws. That might help you.
2. I guarantee you the City doesn\’t care at all whether you use the citizen citation process. That speculation is pure paranoia.
All you are trying to do is create some hysteria on this website to help support your cause. Let\’s Brett\’s family lawyers obtain the information and if they want you to pursue the citizen citation process, they will give you the necessary information.
I would have to say that I agree with Jason Penney (#25). Quoting from the article,
“If the person, or the estate of the person involved in the accident was requesting the record,” said Osoinach, “then there wouldn’t be an issue with the police releasing the information.”
J G\’s point that the citizens of Portland have a right to see that vehicle codes are enforced is a valid one, but this has to be balance with the rights to privacy issue. I think it would be best to leave the decision to initiation a citation in the hands of the victim or his estate since they are the ones who have the most at stake.
My $.02
Ken
Oh, and one more thing. It is not difficult or more time consuming than what you have already done to appeal the City\’s decision to the D.A. You simply have to write a letter.
Carrie-
I am curious as to how you know the intentions of the PPB? In addition, you appear to also know the intentions of a.O.
Are you a mind reader? Or just pushy and a bit of a know it all?
Oh, and one more thing. Your opinions are not facts.
RE: #27
Can we do the same thing for cyclist who violate traffic codes?
I (as a pedestrian) almost got run into by a cyclist blowing through a stop sign (by PNCW). He was not even paying attention to the road – looking off to the side.
Of course, most cyclist would say that auto drivers should look out of the cyclist because the cars are more dangerous.
Does this analogy NOT work for pedestrians and cyclists? Or is it that everyone else must look out for cyclists regardless and are responsible for their safety. Because, gosh, that would seem pretty hyporitical and selfish if that were the case.
So the real question is, how do we cite cyclists who break traffic violations? Seems fair to do that if cyclists want drivers cited for the same thing.
Steve
I\’m curious how know Carrie is wrong?
The Deputy City Attorney is failing to read the public disclosure law in conjunction with the Citizen initiated violation law. The public disclosure law states (in part):
“(2) Information of a personal nature such as but not limited to that kept in a personal, medical or similar file, if public disclosure would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in the particular instance. The party seeking disclosure shall have the burden of showing that public disclosure would not constitute an unreasonable invasion of privacy.”
Clearly, read in conjunction with the requirements of the citizen initiated complaint statute, disclosure is required.
And the Deputy City Attorney probably understands that (if she doesn\’t, she\’s not very good at her job); therefore, this is most likely a big \”F.U.\” from the city to a.O., and nothing more.
*Rixtir begins sharpening the knives.*
a.O you are a better man than I.
I knew this was going to happen. You are shaking the very roots of authoritarianism. Even though as an officer of the court and a member of the bar you hold a certain status, you are being denied the right of discovery. Whatever patience you have for this will be rewarded somewhere sometime, but if you said f^ck it, I would completely understand.
If the City and Police dept. refuse their legal duty to an investigation, then they should be sued. I\’d contribute to the fund to make that happen.
And the State has a duty to provide the facts. The truck driver who killed Bret by law must have filed an accident report with the Oregon State Dept. of Transportation.
Mr. Heaps, if you are reading this… go to the state and request the same info. If they deny the information, add them to the suit for obstruction of Justice.
We are not demanding an unfair conviction of the truck driver, we are demanding a fair investigation and fair citation. Due process is due here.
Below is the state law showing that a state report for Bret\’s \”accident\” must be on file.
811.725 Driver failure to report accident; penalty. (1) The driver of a vehicle commits the offense of driver failure to report an accident if the driver does any of the following:
(a) Is driving any vehicle that is involved in an accident required to be reported under ORS 811.720 and does not, within 72 hours of the accident, complete a report of the accident in a form approved by the Department of Transportation and submit the report to the department.
funny, cause getting someone\’s personal information is as easy as typing in their name and hitting \”search\” in google, most of the time. I think it\’s great that he is trying to see to it that at least a little bit of justice is served in these tragedies. The law exists for a reason, why would it be ok to block access to information necessary to carry out this lawful action? If the police won\’t do their job correctly (as is all too often the case) then we need to do what WE can to make sure people are held accountable. They shouldn\’t try to stand in our way. Are they just mad because this guy is doing a better job at policing than the police?
I have to say I fall on the privacy side here. If Brett\’s family wants to pursue this, or have Chris pursue it on their behalf, it certainly seems as if the door is open for that.
That hardly seems like an unfair or unsurmaounable hurdle to me.
I would first prefer to see the PPB conducting investigations in these situations, as it is their job to do so. Barring that, I think the Citizen Initiated Process is a great tool. But if I were a victim, I wouldn\’t want some random dude (which is about what AO is in this case) taking it upon himself to do it for me. If I were a perpetrator, I wouldn\’t want the PPB giving my info out to just anybody who asked for it.
It all sounds pretty fair to me.
I don\’t understand all this concern about the \”privacy issue.\” Don\’t get me wrong, I completely support the protection of privacy when it comes to the activities in our own homes or expecting our private transactions (like with financial institutions). But when we agree to operate our vehicles on the public streets (particularly when it is proven daily that the vehicles are deadly to bicyclists, pedestrians, and other road users), why does privacy become so important? It seems to me when you\’re out doing things on the public roads that might cause harm, the privacy expectation should be lower. Maybe if we have less expectation of privacy, we\’d be more accountable for our actions. Where do you draw the line?
Horseshit.
They know very well who Mr. Heaps is. They know he is an attorney. They know he is not engaged in \”identity theft.\” And the rest of us know exactly what they are up to here.
Number 47 above (JG) says he/she does not understand issues of privacy.
Allow me to provide a theoretical example. Say while driving your car, you cut someone off a little and they don\’t like it. That person goes to the police and gets your name and address. They then go over and retaliate and do something really bad to you or your property or your family.
That\’s why the police, or any government agency, or any private company, has no right to give away, sell, or distribute your private information in any way – including selling mailing lists, phone lists, etc, etc, etc. Draconian penalties should be in place for giving out ANY personal data on ANYONE without their permission to do so.
Now you know where I draw the line.
If you report dangerous behaviour to the police, they should track the person down and give them a citation just as they would if they had seen the incident themselves. If the offender goes to court you would have to present your evidence that they did it: video, witnesses, etc.
hey chris, i applaud your efforts. i\’m sure you\’ve tried other ways to get the information, peoplefinder.com and all. fighting for victim\’s rights shouldn\’t be such hassle. but because of personal motivations the police bureau protects their own. period.
Did this ever go any further? I wonder how this is affected by the recently announced lawsuit against the truck driver and employer?