Posted by Jonathan Maus ( Publisher/Editor ) on February 29th, 2008 at 12:24 pm
[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.”
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.”