Editorial: Council hides information from the public about Mirror Pond

May 20, 2019
Editorial: Council hides information from the public about Mirror Pond

What a terrible time to hide information from the public about Mirror Pond. Just as the community debates the pond’s future, the Bend City Council has decided to play deny-the-document.

Councilors know something about the legal status of the pond and the Deschutes River and they ain’t telling. It’s in a memo city attorneys prepared for councilors. When we asked for a copy, the reply was: no.

City staff apparently asked for permission to release it and didn’t get an answer or approval. Thanks for nothing, councilors. Is all the campaign talk about transparency and openness nothing but empty words?

The memo in question, the city tells us, is protected by attorney-client privilege. In this case, the city attorneys are the attorneys and the councilors are the client. And attorney-client privilege is one way Oregon’s public records law allows governments to hide documents from public view.

Public bodies cherish the opportunity to abuse this exception. If a city wants to investigate an employee who apparently did something wrong, a city can hire an attorney to do it. When the public asks what happened: Sorry, that investigation is protected by attorney-client privilege! If we had $1 every time the public heard that, we could build a multistory monument to the death of Oregon’s public records law.

This memo that councilors don’t want you to see is apparently related to the navigability of the Deschutes River. What is navigability? “The people of Oregon are the owners of the submerged and submersible land (“beds and banks”) underlying all navigable and tidally influenced waterways,” the Oregon Department of State Lands explains on its website. “In most cases, this ownership extends to the line of ordinary high water or high tide, but ownership can be mixed, even along the same waterway.”

What does the navigability status of the river mean for dredging Mirror Pond? We wish we could tell you what the city’s legal experts concluded, but as things stand we’d be fumbling around in the dark. That’s right where councilors want the public to be.

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