Lawsuit: Cylvia Hayes v. Oregonian Publishing Company

2/25/2015 2:45:49 PM
15CV04530
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IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF MARION
CYLVIA HAYES,
Plaintiff,
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v.
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Case No.
COMPLAINT FOR
DECLARATORY RELIEF
OREGONIAN PUBLISHING COMPANY, LLC,

doing business as THE OREGONIAN,
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NOT SUBJECT TO
MANDATORY ARBITRATION
Defendant.
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In this action, plaintiff Cylvia Hayes seeks a declaratory judgment establishing
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that she is not required to produce her email in response to The Oregonians January
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29, 2015, public records request issued under the Oregon Public Records Law, ORS
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192,410, et seq. Ms. Hayes alleges as follows:
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Parties, Jurisdiction, Venue
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1.
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Cylvia Hayes is a resident of Bend, Oregon.
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2.
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Defendant, Oregonian Publishing Company, LLC, doing business as The

Oregonian, is a newspaper with its principal place of business in Portland, Oregon.
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3.
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This court has jurisdiction and venue is proper in Marion County as set forth in
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ORS 192.450(2).
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Page 1 - COMPLAINT FOR DECLARATORY RELIEF
HOEVET BOISE OLSON HOWES

ATTORNEYS AT LAW
1000 S.W. BROADWAY, #1500
PORTLAND, OREGON 97205
(503) 228-0497
General Allegations
4.
On or about January 29, 2015, The Oregonian filed a public records request
seeking:
[C]opies of all emails concerning state business sent or received by any

email address [Ms. Hayes has] used since Jan. 1, 2011, including but not
limited to [three listed addresses].
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Specifically, *** all emails [Ms. Hayes has] sent or received or been ccd on
that contain the acronym FLO or phrase first lady, since January 1, 2011
- regardless of where they are currently stored.
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5.
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Ms. Hayes does not have an email address from the State of Oregon. When Ms.
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Hayes requested a state email address, the Governors Office determined she was
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ineligible because she was not a state employee.
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6.
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All of the documents that The Oregonian seeks are contained on Ms. Hayes
private computer.
7.
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To the extent that Ms. Hayes communicated by email with state employees on
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their state email address, those emails should be maintained on the state email server
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and can be easily obtained by means of an appropriate public records request directed
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to the appropriate state agency.
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8.
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On or about February 9, 2015, Ms. Hayes filed an Opposition to the Public
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Records Petition on several grounds, including that she is not a public body or public
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official as those terms are defined in the Oregon Public Records Law.
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ATTORNEYS AT LAW
(503) 228-0497
9.
On or about February 12, 2015, the Oregon Attorney Generals Office granted
The Oregonians Petition and ordered that Ms. Hayes turn over all emails that relate to
the conduct of public business.
10.
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On February 18, 2015, Ms. Hayes provided notice of her intention to institute
proceedings for injunctive or declaratory relief pursuant to ORS 192.450(2).
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CLAIM FOR RELIEF (DECLARATORY RELIEF)
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11.
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Ms. Hayes realleges and incorporates paragraphs 1-10, as though set forth in full
herein.
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A justiciable controversy presently exists between Ms. Hayes and The Oregonian
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over whether she must turn over all emails which relate to the conduct of public
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business, under the Public Records Law, ORS 192.420, et seq.
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COUNT 1
(Ms. Hayes is not a Public Body)
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13.
Public Bodies include every state officer, agency, department, division, bureau,
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board and commission; every county and city governing body, school district, municipal
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corporation, and any board, department, commission, council or agency thereof, and
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any other public agency of this state. ORS 192.410(2).
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ATTORNEYS AT LAW
(503) 228-0497
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Public Records are any writing that contains information relating to the conduct
of the publics (sic) business, * * * prepared, owned, used, or retained by a public body
regardless of physical form or characteristics. ORS 192.410(4)(a).
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15.
Ms. Hayes emails are not public records subject to disclosure under the Public
Records Law because Ms. Hayes is not a statutory public body. ORS 192.420(1).
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Ms. Hayes is not a public body within the meaning of ORS 192.410(3) because:
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a.
Ms. Hayes is not an entity that was created by the government;
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b.
Any functions Ms. Hayes did perform related to the government were
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largely advisory or ceremonial in nature;

c.
decisions for the State of Oregon;
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d.
e.
There was no apparent supervision or control by anyone in the

government over Ms. Hayes largely advisory or ceremonial functions; and
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While Ms. Hayes was reimbursed for certain expenses, the State did not
compensate or pay her for her services;
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Ms. Hayes did not have actual or apparent authority to make binding
f.
Ms. Hayes is not an employee or officer of the State.
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COUNT 2
(Ms. Hayes is not a Public Official)
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17.
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Alternatively, even if Ms. Hayes is somehow deemed a public body, she is not a
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public official under the government ethics statute because she (1) is not an elected
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official, (2) has not been appointed to any official position; (3) is not an employee of the
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State of Oregon; and (4) is not an agent of the State of Oregon. ORS 244.020(14).

ATTORNEYS AT LAW
(503) 228-0497
Because she does not have an official public role, Ms. Hayes personal emails are not
public records subject to disclosure.
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COUNT 3
(Invasion of Privacy)
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Requiring Ms. Hayes to produce her emails related to the conduct of the publics
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business would be an unreasonable invasion of her privacy. ORS 192.502(2).

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As a private citizen, Ms. Hayes had a reasonable expectation of privacy to emails
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on her personal computer.

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Ms. Hayes should not be required to turn over emails that are of a personal
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nature. ORS 192.502(2).
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COUNT 4
(Right against self-incrimination)
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21.
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Under the Oregon and United States constitutions, ordering Ms. Hayes to provide
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documents that are related to the conduct of public business compels her to admit that
responsive emails exist, are in her control, and authenticate that the email relates to
state business, violating her right against self-incrimination. See United States v.
Hubbell, 530 U.S. 27, 36-37 (2000).
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Ms. Hayes constitutional rights supersede the Oregon Public Records Law.
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ATTORNEYS AT LAW
(503) 228-0497
COUNT 5
(Ms. Hayes must be given reasonable time to comply,
and may establish fees reasonably calculated to reimburse her)
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Alternatively, if the court finds that Ms. Hayes personal emails are subject to
disclosure under the Oregon Public Records Law, Ms. Hayes must be given a
reasonable time to review her email and determine which emails are responsive.
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If Ms. Hayes is required to produce her emails, she may establish fees
reasonably calculated to reimburse her for the actual cost of making the public records
available, including costs for compiling or tailoring the public records. ORS
192.440(3)(a).
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25.
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Ms. Hayes may include in this fee the cost of time spent by her attorney
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reviewing the requested records, redacting protected material, or segregating the
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records into exempt and nonexempt records. ORS 192.440(3)(b).
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26.
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Ms. Hayes shall not be required to produce emails containing information, the
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disclosure of which is exempt from disclosure, prohibited, or restricted or otherwise
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made confidential or privileged under Oregon law. ORS 192.501-502. Specifically, she
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shall not be required to disclose emails containing attorney-client privileged information.
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27.
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Ms. Hayes is entitled to recovery of attorney fees incurred in this matter under
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each Count alleged. ORS 192.490(3).
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///
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///
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ATTORNEYS AT LAW
(503) 228-0497
WHEREFORE, plaintiff prays for the following relief:
1. A declaratory judgment that she is not required to produce her email in
response to The Oregonians January 29, 2015 public records request
because she is not a public body and her emails are not public records;
2. Alternatively, a declaratory judgment that she is not required to produce her
email in response to The Oregonians January 29, 2015 public records
request because she is not a public official;
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request because requiring her to do so would be an unreasonable invasion of
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her privacy, in violation of ORS 192.502(2);
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request because requiring her to do so would be a violation of her state and
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federal constitutional right against self-incrimination;

5. Alternatively, if the court determines that plaintiff is required to produce her
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email in response to The Oregonians January 29, 2015 public records, a
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declaratory judgment establishing that she be given a reasonable time to
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review the requested documents for responsiveness, and she may establish
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fees reasonably calculated to reimburse her for the actual cost of making the
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public records available and this fee may include the cost of time spent by her
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attorney reviewing the records, redacting material from the records, and
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segregating them into exempt and non-exempt records;
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ATTORNEYS AT LAW
(503) 228-0497
6. An award of attorney fees, costs and disbursements incurred herein; and
7. For such other relief as the court determines necessary or equitable.
DATED this 25th day of February, 2015.
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s/ Whitney P. Boise
Whitney P. Boise, OSB #851570
Of Attorneys for Defendant
Trial Attorney: Whitney P. Boise
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ATTORNEYS AT LAW
(503) 228-0497

Lawsuit: Cylvia Hayes v. Oregonian Publishing Company

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2/25/2015 2:45:49 PM

IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF MARION

OREGONIAN PUBLISHING COMPANY, LLC,

In this action, plaintiff Cylvia Hayes seeks a declaratory judgment establishing

192,410, et seq. Ms. Hayes alleges as follows:

Parties, Jurisdiction, Venue

Cylvia Hayes is a resident of Bend, Oregon.

Defendant, Oregonian Publishing Company, LLC, doing business as The

HOEVET BOISE OLSON HOWES

[C]opies of all emails concerning state business sent or received by any

ineligible because she was not a state employee.

to the appropriate state agency.

On or about February 9, 2015, Ms. Hayes filed an Opposition to the Public

Page 2 - COMPLAINT FOR DECLARATORY RELIEF

HOEVET BOISE OLSON HOWES

the conduct of public business.

CLAIM FOR RELIEF (DECLARATORY RELIEF)

business, under the Public Records Law, ORS 192.420, et seq.

any other public agency of this state. ORS 192.410(2).

HOEVET BOISE OLSON HOWES

regardless of physical form or characteristics. ORS 192.410(4)(a).

Ms. Hayes is not an entity that was created by the government;

largely advisory or ceremonial in nature;

decisions for the State of Oregon;

There was no apparent supervision or control by anyone in the

Ms. Hayes is not an employee or officer of the State.

Page 4 - COMPLAINT FOR DECLARATORY RELIEF

HOEVET BOISE OLSON HOWES

public records subject to disclosure.

business would be an unreasonable invasion of her privacy. ORS 192.502(2).

As a private citizen, Ms. Hayes had a reasonable expectation of privacy to emails

on her personal computer.

nature. ORS 192.502(2).

Page 5 - COMPLAINT FOR DECLARATORY RELIEF

HOEVET BOISE OLSON HOWES

reviewing the requested records, redacting protected material, or segregating the

records into exempt and nonexempt records. ORS 192.440(3)(b).

disclosure of which is exempt from disclosure, prohibited, or restricted or otherwise

shall not be required to disclose emails containing attorney-client privileged information.

each Count alleged. ORS 192.490(3).

HOEVET BOISE OLSON HOWES

WHEREFORE, plaintiff prays for the following relief:

1. A declaratory judgment that she is not required to produce her email in

response to The Oregonians January 29, 2015 public records request

2. Alternatively, a declaratory judgment that she is not required to produce her

email in response to The Oregonians January 29, 2015 public records

request because she is not a public official;

3. Alternatively, a declaratory judgment that she is not required to produce her

email in response to The Oregonians January 29, 2015 public records

request because requiring her to do so would be an unreasonable invasion of

her privacy, in violation of ORS 192.502(2);

4. Alternatively, a declaratory judgment that she is not required to produce her

email in response to The Oregonians January 29, 2015 public records

request because requiring her to do so would be a violation of her state and

federal constitutional right against self-incrimination;

email in response to The Oregonians January 29, 2015 public records, a

declaratory judgment establishing that she be given a reasonable time to

segregating them into exempt and non-exempt records;

HOEVET BOISE OLSON HOWES

6. An award of attorney fees, costs and disbursements incurred herein; and

7. For such other relief as the court determines necessary or equitable.

DATED this 25th day of February, 2015.

HOEVET BOISE OLSON HOWES