Federal Court Denies Motion to Dismiss OWVA Lawsuit Against Attorney General
By Oregon War Veterans Association,
Salem, OR— The OWVA recently reported to its members and supporters that the Oregon Attorney General’s (AG) office filed a Motion to Dismiss the First Amendment Right lawsuit brought on by the OWVA against him. On Tuesday, November 16th, the Honorable Michael R. Hogan, of the United States District Court in Eugene, Oregon denied that motion.
Judge Hogan made it clear to the OWVA and to AG Kroger that he had an opinion on this case and wanted to keep the case active, so he denied the motion to dismiss. “That was a ‘win’ for us,” Joe LaRue, the OWVA’s attorney from Bopp, Colson and Bostrom- told OWVA’s board members, who were attending the hearing. The meaning behind the ruling is that the Judge thinks there is merit to hear the case brought on by the OWVA. The judge would have probably dismissed the civil rights case, if he thought that the OWVA didn’t have a chance to succeed on the merits of the arguments already presented to the court. So, they see it s a positive position to be in as the court hears the case.The OWVA’s suit against the AG is about whether he has the right to disclose private documents given to them by the OWVA as part of an audit he is performing on the OWVA. In recent correspondence to the court, the AG has stated that they are not currently planning to disclose any private documents or details about donors or members, but in previous communications to the OWVA though legal counsel, they made it clear that they had the right to do so, and even gave a list of documents that they felt were acceptable to disclose, which were considered private by the veteran’s group.
The OWVA gave the AG everything they asked for, because they believed they had nothing to hide from them, and wanted to complete the audit quickly. But, just days after receiving the documents, the AG told the veterans that the bulk of their documents would be handed over to the media. That was unacceptable, and made the OWVA wonder about the motive behind the audit in the first place. We never intended to give up our civil rights, by giving them the documents they required, “said Greg Warnock, Executive Director of OWVA, in a recent conversation with a group of military veterans.
The legal issue is the OWVA thinks that Oregon’s Public Record Law does not parallel the Federal Freedom of Information Act, which more clearly prevents the media from accessing documents that could be considered personal and private, and which would violate established Constitutional protections.
The Motion to Dismiss, submitted by the AG, was done after all of the news organizations agreed to put their requests for all documents associated with the audit “on hold.” This gave the AG’s office a way to ask for the dismissal, because the court would be less likely to hear a case when there was not a “live controversy.” The judge would probably not make a constitutional judgment on a “hypothetical” case.
One option for the court to take was to dismiss the case until there was a “live controversy.” If he would have taken that option, and the media activated their requests for the OWVA documents, then the OWVA would have to file their case again in Federal Court, meaning that a different judge might have been selected for the case-someone less likely to support the OWVA’s privacy issues. If Judge Hogan was re-drawn to hear the case, the news groups could put their requests on hold again. This cycle could be kept in play- forever.
The result of the hearing on Tuesday was that Judge Hogan kept the case in his court to be heard as soon as there is a controversy. The court told the parties that he would call them back together in 90 days to evaluate the status of the controversy. He also said that if someone else requests the documents from the AG’s office, that he would hear the case (to impose a permanent injunction on the State) right away.
If the judge favors the OWVA’s arguments, the impact could be gigantic- probably meaning that the State could no longer consider documents that they hold in their possession as part of any non-profit audit, or civil investigation or even as a custodian of certain documents- to be “public record.” The Oregon Public Record Law would essentially be determined to be null and void, and would probably need to be re-written altogether.
So- the OWVA is waiting to see what happens next. Warnock told the OWVA Board of Directors, on Friday, that he thinks someone else will request the documents from the AG’s office, “because a lot of people want to know how we operate so successfully as veteran advocates and as a non-profit. Anyone who would like to see who our donors are, and see our internal strategies to accomplish all that we do can ask for copies of our documents. If that information is open to the public, then why not ask?”
If someone does ask, then they will finally have their day in court.
They vow to keep fighting to protect that kind of information from being released to the public, and to protect donor and member rights of privacy- no matter what the cost.
More information about the OWVA and its activities and purposes can be found on their website at www.owva.org