“I HONESTLY HAVE NEVER HEARD OF THIS,” says Frank LoMonte, executive director of the Brechner Center for Freedom of Information at the University of Florida.
“I have not read about this occurring elsewhere,” says Daniel Bevarly, executive director of the National Freedom of Information Coalition.
“First time I’ve seen something like this,” says Robert Corn-Revere, a media lawyer at Davis Wright Tremaine.
“This is new to me,” says Lee Levine, a media lawyer at Ballard Spahr.
“Have not seen this before,” says Adam Marshall, a lawyer at the Reporters Committee for Freedom of the Press.
Those are the responses I got when asking about the six-figure lien that The Oregonian has placed against the Bend home of Cylvia Hayes, fiancée of former Governor John Kitzhaber, who resigned in 2015 amid an ethics controversy. (A lien is a legal interest in another’s property that lasts until a debt or duty is satisfied.)
Yet the newspaper’s attorney, Charles Hinkle, told me, “This is not an unusual event. This is purely ministerial and procedural.”
So which is it? An unprecedented legal action reported as news by the Associated Press, The (Bend) Bulletin, Willamette Week, and KDRV, or a quotidian piece of paperwork? It’s something of both, and the background tells the full story.
I’m at a loss to understand why this is a newsworthy event. It would be bordering on malpractice if you didn’t do this.
IN 2014, THE OREGONIAN requested emails relating to government business sent or received by Hayes through her private email account. The request was part of an investigation into whether Hayes had used her public position (she had an office and staff as first lady) and relationship with Kitzhaber for personal financial gain.
Hayes did not respond to the request, so the newspaper submitted a petition to the state attorney general for an order directing Hayes to release the emails. The AG granted the petition over the objections of Hayes, who argued that she was not a public official and therefore not subject to the state freedom of information law.
Shortly thereafter, Kitzhaber announced that he would resign, and Hayes sued The Oregonian to block release of the emails. She argued that their release would violate her rights against self-incrimination (criminal investigations were underway on influence-peddling allegations) and would invade her privacy. Unpersuaded, the trial court ordered the release.
By that time, newly installed governor Kate Brown had independently released tens of thousands of emails from state accounts, and some of them were from or to Hayes. Those emails, Hinkle told me, “demonstrated rather vividly [Hayes’] participation in governmental affairs.”
Whitney Boise, the attorney for Hayes, would not comment for this story.
The trial court enlisted a local IT company to de-duplicate the emails that had been released by the governor from those The Oregonian still wanted from Hayes. Then the court appointed a designee, another judge, to review the outstanding emails to determine which ones were exempt from disclosure or contained privileged information. In the end, Hayes had to release more than 70,000 emails.
The Oregonian editorialized about the case: “Maybe Hayes had hoped her legal tactics would wear us down. But we weren’t going away. If we had given up this fight what message would it have sent? Government agencies and public individuals would have felt emboldened to stonewall the media and the public, hoping we’d eventually go away. We won’t. It’s a matter of principle. We will relentlessly pursue documents that belong to you.”
Under state law, the prevailing party was entitled to attorney’s fees, so The Oregonian petitioned the court for them. (Fee shifting is available to encourage the disclosure of public records.) The court awarded $127,760 to the paper. Hayes responded in court documents that the award was punitive, and she wrote on Facebook that she planned to appeal and did not “intend to give a dime to the Oregonian, which has been dishonest, irresponsible and biased in its coverage of my case.”
Hayes did, indeed, file an appeal, which is ongoing. The oral argument was held in March, and a decision is not expected before the end of the year.
Here’s where the lien comes in. Oregon law states that a judgment is automatically a lien against any real property owned by the debtor (Hayes, in this case) in the county where the judgment is handed down. Hayes does not own property in that county, so The Oregonian, while the appeal is pending, registered the judgment in the county where Hayes owns her home, ultimately placing a lien against it. That’s the routine part of the case.
“This is something that lawyers do every day for their clients,” Hinkle told me. “I’m at a loss to understand why this is a newsworthy event. It would be bordering on malpractice if you didn’t do this. And if her home happened to be in the county where the lawsuit was initiated, you wouldn’t be calling me, because the lien would have been automatic.”
Whether or not that’s true, that I wouldn’t have called, it’s still rare for an individual, as opposed to an agency, to be held liable for an FOI violation. This is the non-routine part of the case. “In the more ordinary open-records scenario,” LoMonte told me, “it is an agency that must pay any judgment, including fees. This strikes me as quite an uncommon confluence of facts. And most states do not observe a ‘loser-pays’ rule for civil litigation, and most are protective of plaintiffs’ pockets in particular, absent true legal frivolity.”
It’s unclear, in any event, whether Hayes has the resources to pay the judgment.
Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.