The local newspaper is suing my county.

Personally I think this silly, but the local newspaper is suing the county for not releasing some public records and I was wondering, generally what would they (newspapaer) need to prove or show in court to hope winning this one? This is the link to the article: Records lawsuit to move out of county

First, if these are public records (I have no clue what they are), wouldn't they be released unless they were exceptionally important? I will admit that I don't know much about this as I just heard about it myself and outside thinking how silly it seems, what is the point and honestly, what is the liklihood the newspaper will even win?

Second, while I am at it, wouldn't the county have to give permission for the newspaper to sue them, or would that not apply in this?

Thank you in advance for any information! :D

Miss Magoo. :)

If its a public records that's all that counts--no need to prove why they want it.

I have no clue why governments spend lots of time hiding stuff or going to great pains to redact the same kinds of information a 12 year kid can find on line.

For example I had a rough time to get certain records that landlords were required to file--the clincher was that the highly paid elected official never bothered to collect the required records and it was a big coverup. And  one good size unit of government refused to cough up its master tax lists--that was because they never bothered to generate them in the first place. If we allow govermnent to hide its blunders were are all the loosers for same.

I give credit to local newspapers to keep pushing for records access and open meetings and all the stuff were are supposed to have.

Miss Magoo:

First, if these are public records (I have no clue what they are), wouldn't they be released unless they were exceptionally important?

The term "public records" in this context refers to the definition found in Oregon's open records act, specifically ORS § 192.410(4), which states:

"(a) 'Public record' includes any writing that contains information relating to the conduct of the public’s business, including but not limited to court records, mortgages, and deed records, prepared, owned, used or retained by a public body regardless of physical form or characteristics.

(b) 'Public record' does not include any writing that does not relate to the conduct of the public’s business and that is contained on a privately owned computer."

It thus includes much more than what most people think of as a public record, i.e. those records that are routinely made available to the public to see, like deed records, court records, etc. Under the open records act, many records of state and local governments can be obtained by the public even though they are not made routinely available by filing the proper request with the agency holding the records. But, as you might expect, not all "public records" as defined in ORS § 192.410(4) are required to be made available. There are exceptions for certain records. If the government agency invokes one of those exceptions and the requestor of the records does not agree that the exception applies, the requestor can appeal to the state attorney general for resolution. If either the requestor or the government agency disagrees with the attorney general's decision, that party may take the matter to court. See ORS § 192.450.

You can see all the provisions of the open records law in ORS §§ 192.410 through 192.505. Note that the federal government also has an open records law, the Freedom of Information Act (FOIA). Most states also have open records acts, too.

Miss Magoo:

Second, while I am at it, wouldn't the county have to give permission for the newspaper to sue them, or would that not apply in this?

O.k, let's correct a misstatement about this that I've seen before on this site. The misstatement I see is that the government agency involved must give permission for a suit before it can be sued. That's not accurate. Under the principles of sovereign immunity, the federal and state governments cannot be sued unless they consent to be sued. But it is not the government agency involved that grants the waiver of sovereign immunity; it is the Congress or state legislature that waives immunity by passing an Act that permits the suit in question. Thus, the waiver is not made on a case-by-case basis by government agencies. If the agencies had the power to decide who could sue them, they'd of course not waive immunity for any claim they disagree with, making suing the government pretty much worthless. Instead, what litigants must do is look for a federal or state law that says the government may be sued for the type of claim at issue. Here, the law that the litigant would rely upon is ORS § 192.450. It expressly gives a cause of action to compel the state and local governments to release records they refuse to release.

The immunity of municipalities (e.g. counties and cities) is more limited, and exists only to the extent that the state has extended sovereign immunity to it. Thus, unlike the state and federal governments, who generally possess immunity unless it is waived, for muncipalities they have no sovereign immunity except that which the state law provides. The federal government may also waive various immunities that the municipality may otherwise have under state law. Under the 11th Amendment, the federal government cannot waive state sovereign immunity for suits for money damages; but the Supreme Court has held that the 11th Amendment immunity for states does not apply to municipalities. So, for example, cities and counties can be sued in federal court for damages under the Americans with Disabilities Act (ADA), but states cannot.

Drew:

I have no clue why governments spend lots of time hiding stuff or going to great pains to redact the same kinds of information a 12 year kid can find on line.

The problem, Drew, is that "public record" in this context refers to pretty much any record the state or local government has, not just those routinely made available to the public. Under the Oregon open records laws, not all "public records" must be disclosed. My prior post explains that in more detail. The newspaper article using the term "public record" without explaining what it means in the context of the litigation gives the reader the wrong impression given that most people will assume, as you did, that "public record" means stuff that is already available for anyone to see. That's not the case here.

Yes, I follow ....and good newspapers sometimes turn up good stuff--like the one that requested attendance records of city employees--wow--a few were rather no show employees. And another is going after all the emails sent among school board members --who avoid meetings required to be open by not holding meeting with a quorum of course. And another turned up that some of the biggest scofflaws were the folks getting nice contracts with City.And another posts lists of some of the folks who stretch the OT for whopper salary bumps into pension.....

Thank God we have some active press.......

lawbuff:

This type of suit is NOT controlled by permission to sue, period, whether it is Mandamus or not.

I disagree with the implication that one does not need to consider sovereign immunity when suing for this kind of claim. Whenever suing a government entity, one must always take into account the principles of sovereign immunity and ensure that the particular claim at issue won't be barred by sovereign immunity. In suits against governments for money damages in particular, sovereign immunity is a key concern, but sovereign immunity doesn't just apply to money claims. A smart litigator in considering any claim against a government entity should always resolve at the start whether any sovereign immunity will bar the claim at issue. Those who do not do that and simply assume that the claim is allowed may waste considerable time and effort developing the claim and filing it only to find that the court later dismisses it because of sovereign immunity. That's an example of my basic motto that (particularly in litigation) you should never assume anything and always verify everything.

As you mention, the sovereign immunity inquiry is distinct from whether, in general, the law allows for the kind of claim being made. The classic example is tort claims. The litigator of a tort claim against a government entity must determine two things right off the bat: (1) whether he has a good claim under tort law generally and (2) whether the claim is barred by sovereign immunity.

So, let's say that someone wants to sue the Federal Express (FedEx) because the envelope he sent with a check to the state revenue department got completely shredded while in the hands of the FedEx, making the check unusable and thus causing the taxpayer to incur considerable penalties. Under general principles of tort law, if the FedEx was negligent in handling the mail, it would be liable to the taxpayer for the damages that resulted from that negligence (absent any applicable waivers of liability in the contract, of course). So, if the taxpayer can prove the negligence, he'd have a claim to pursue. Since FedEx is not a government entity, there is no need to consider sovereign immunity.

But what if instead he mailed the check through the U.S. Postal Service (USPS)? Would the suit still be good? Here, it is not enough to simply determine that the claim would be a good one under the general principles of tort law. Since the USPS is an agency of the federal government, one must also consider sovereign immunity. The Federal Tort Claims Act (FCTA)generally waives the federal government's immunity and consents to suits for damages arising for claims that would be a valid tort claim in the state where the tort is alleged to have occurred. "The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages." 28 U.S.C. § 2674. So far, it looks good for the claim. But digging a bit deeper into the FTCA, you'll find exceptions in § 2680. Specifically, § 2680(b) provides that no suit may be maintained for "Any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter." This pretty much dooms the suit at issue here—the claim is for negligent loss or transmission of postal matter, and § 2680(b) tells you that the federal government cannot be sued for that.

This leads to some interesting issues as to where the line of immunity for the post office is drawn. It's clear that if a postal worker is at fault in an accident while driving his postal truck that the federal government may be sued for that. It's clear that if the USPS destroys a letter while processing mail that it cannot be sued for that. But what about negligence in delivering (transmitting) the mail, where the mail was left in a spot that caused someone to trip over it and suffer injury? That was the issue in a relatively recent Supreme Court decision, Dolan v. United States Postal Service, 546 U.S. 481 (2006). A majority of the court decided that sovereign immunity did not bar the claim in this circumstance.

lawbuff:

TA, if the law permits the public veiwing of a Record, and the govt. refuses to release it, what good is the open records law? I have never read one, in any state, that had a provision that immunity must be waived to release them, that defeats the purpose of the law.

Each state whose open records law I've reviewed, as well as the federal FOIA, expressly provide a process for compelling the release of the public records as provided in the statute, including resort to the courts. Because the statute expressly provides for the suit to compel the release, that provision itself is a waiver of any immunity claim.  It is not necessary for the statute to say "immunity is waived" so long as it's clear that government has consented to be sued. Indeed, you don't often see an express phrase of "immunity is waived" in statutes that waive immunity.

lawbuff:

 My point was, I suppose, immunity is not an issue in every suit against the govt.

Correct. But immunity is an issue every smart litigator suing the government will want to consider to make sure that immunity will not be a problem for the case he wishes to bring.

Taxagent:

The term "public records" in this context refers to the definition found in Oregon's open records act, specifically ORS § 192.410(4), which states:

"(a) 'Public record' includes any writing that contains information relating to the conduct of the public’s business, including but not limited to court records, mortgages, and deed records, prepared, owned, used or retained by a public body regardless of physical form or characteristics.

(b) 'Public record' does not include any writing that does not relate to the conduct of the public’s business and that is contained on a privately owned computer."

Thank you so much for the citation, it is incredible what Public Records covers, I don't think OR understands the meaning of privacy. :D If I am understanding this, virtually anything done on a non private computer could be considered a public record.

Taxagent:

but not limited to

Those are pretty scary words, only because they seem to be easy to skip over.

Taxagent:

But, as you might expect, not all "public records" as defined in ORS § 192.410(4) are required to be made available. There are exceptions for certain records. If the government agency invokes one of those exceptions and the requestor of the records does not agree that the exception applies, the requestor can appeal to the state attorney general for resolution. If either the requestor or the government agency disagrees with the attorney general's decision, that party may take the matter to court. See ORS § 192.450.

That is along the lines of what I was thinking when I first read the article, instead of assuming that the government was hiding something I couldn't help but to wonder if these weren't some kind of records that had no business being made public. Also the fact they (newspaper)  didn't specify what records they wanted makes me wonder what the records are and why they want them.

Taxagent:

You can see all the provisions of the open records law in ORS §§ 192.410 through 192.505.

Cool! I am looking forward to reading this, Thank you so much Taxagent!

Taxagent:

Note that the federal government also has an open records law, the Freedom of Information Act (FOIA).

I heard that mentioned in the admissibility of emails threads, but am not fully understanding how that works. However, that is beyond this thread so maybe I'll start a thread on that one someday because it sounds pretty interesting.

Taxagent:

Under the principles of sovereign immunity, the federal and state governments cannot be sued unless they consent to be sued. But it is not the government agency involved that grants the waiver of sovereign immunity; it is the Congress or state legislature that waives immunity by passing an Act that permits the suit in question. Thus, the waiver is not made on a case-by-case basis by government agencies. If the agencies had the power to decide who could sue them, they'd of course not waive immunity for any claim they disagree with, making suing the government pretty much worthless. Instead, what litigants must do is look for a federal or state law that says the government may be sued for the type of claim at issue. Here, the law that the litigant would rely upon is ORS § 192.450. It expressly gives a cause of action to compel the state and local governments to release records they refuse to release.

This does make a lot more sense, thank you for explaining it so simply! I was wondering how it worked because it didn't make sense that the government would say "Oh sure, you can sue me, I'll waive immunity". Just to make sure I fully understand, for example: If I wanted to sue the government for taking my cat away, I would first need to see if there was an Act passed that waives the government's immunity correct? (I do know that kind of suit wouldn't be anywhere near realistic. :)

Taxagent:

The immunity of municipalities (e.g. counties and cities) is more limited, and exists only to the extent that the state has extended sovereign immunity to it. Thus, unlike the state and federal governments, who generally possess immunity unless it is waived, for muncipalities they have no sovereign immunity except that which the state law provides. The federal government may also waive various immunities that the municipality may otherwise have under state law.

So in reality the newspaper can sue the county without the county waiving immunity because it all depends on what the county has for immunity?

Taxagent:

Under the 11th Amendment, the federal government cannot waive state sovereign immunity for suits for money damages; but the Supreme Court has held that the 11th Amendment immunity for states does not apply to municipalities. So, for example, cities and counties can be sued in federal court for damages under the Americans with Disabilities Act (ADA), but states cannot.

That is really interesting. :)

Thank you so much again Taxagent!!

Miss Magoo:

If I wanted to sue the government for taking my cat away, I would first need to see if there was an Act passed that waives the government's immunity correct? (I do know that kind of suit wouldn't be anywhere near realistic. :)

In general, that's the concept. However, for some types claims you don't need to find a statute that has the effect of waiving immunity, as lawbuff correctly pointed out. For example, if the cat were taken by eminent domain (i.e. a taking of private property for public use), say for use as the star attraction at the county petting zoo, the Constitution guarantees you just compensation for the cat. If the county government didn't pay up, you'd be able to sue because the Constitution guarantees you get compensated, and the government cannot invoke immunity to prevent you from suing for that. My point was that when suing the government you always need to consider the concept of sovereign immunity and either determine that it is a claim for which immunity does not apply in the first place or find a statute waiving it.

Taxagent:

In general, that's the concept. However, for some types claims you don't need to find a statute that has the effect of waiving immunity, as lawbuff correctly pointed out. For example, if the cat were taken by eminent domain (i.e. a taking of private property for public use), say for use as the star attraction at the county petting zoo, the Constitution guarantees you just compensation for the cat. If the county government didn't pay up, you'd be able to sue because the Constitution guarantees you get compensated, and the government cannot invoke immunity to prevent you from suing for that. My point was that when suing the government you always need to consider the concept of sovereign immunity and either determine that it is a claim for which immunity does not apply in the first place or find a statute waiving it.

Got it! Thank you so much Taxagent and Lawbuff, you both explained this in an easy to understand manner. :) I haven't heard to much about the lawsuit, so we'll see how it all turns out. :) If I hear another thing about it that doesn't make sense, I'll come back to this thread. :)

Thank you all so much again!