Taking a look at Cylvia Hayes' lawsuit against the Oregonian

Former Oregon First Lady Cylvia Hayes filed a lawsuit against the Oregonian on Wednesday, seeking to block access to her emails stored on her computer, after the newspaper made a public records request a month earlier. Let's take a look at the complaint.

First, it seeks a "declaratory judgment" that (1) she is neither a public body nor a public official; (2) compelling her to produce her emails would be an unreasonable violation of her privacy; (3) compelling her to produce her emails would violate her right against self-incrimination; (4) if required to produce the emails, she should have "reasonable time" to respond and she should be able to recover fees for the cost involved.

Like a regular lawsuit, a declaratory judgment settles a legal issue between parties. ORS 28.010 states:

Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a judgment.

A party who would normally be the defendant in a lawsuit might seek a declaratory judgment as a way to get a jump on the other side. For example, if there were a potential contract dispute between parties to the contract, one side might want to get a court ruling that the contract is invalid without breaching the contract and then raising the invalidity as a defense - after all, if you lose that lawsuit, you are then on the hook for breach of contract. With a declaratory judgment, you could find out if you are correct that the contract is invalid; if you're wrong, you can still comply with it and not be in breach.

So in this instance, Hayes is basically asking the court to determine that she doesn't have to turn over the emails, as opposed to her refusing to turn over the emails and then defending her failure to do so later on in court. It's primarily a matter of timing.*

* Sometimes there is a question of whether a complaint seeking declaratory relief is sufficiently "ripe," meaning, ready to be resolved by a court. Generally, this problem arises when the dispute is too abstract or uncertain. In this instance, however, Hayes' status as a public official or private citizen seems concrete enough, especially given the Attorney General's earlier ruling that she indeed was a public official.

Second, Hayes argues that she is neither a public body nor a public official, and hence her emails are not public records within the meaning of the public access statute. Here, she seems to rely on the points she earlier raised unsuccessfully before the Attorney General - that her role was "largely advisory or ceremonial," that she lacked "actual or apparent authority to make binding decisions for the State of Oregon," that she was not paid, that she was not supervised by anyone (though that seems to have been part of the problem!), that she was neither an employee nor an officer of the State, nor elected nor appointed to any position. The Attorney General's order is quite detailed and thorough, and addressed Hayes' points (though of course, a court might view the relevant precedents differently).

Third, Hayes' claim of the Fifth Amendment privilege against self-incrimination has drawn a lot of media headlines. (Oregonian; Portland Business Journal; Daily Astorian) The Fifth Amendment protects a person from being forced to testify about matters that might tend to incriminate him or her. To the extent that the compelled disclosure of Hayes emails might incriminate her, the self-incrimination problem isn't about the emails, which speak for themselves, but rather, the act of producing those emails.

Hayes' complaint cites United States v. Hubbell, which provides a good discussion of the problem. Hubbell was investigated by the Office of the Independent Counsel as part of the Whitewater matter during the Clinton Administration. Following his conviction pursuant to a plea deal where he agreed to cooperate, the OIC served a subpoena to get access to documents to check the veracity of Hubbell's cooperation. Hubbell refused to do so, claiming his Fifth Amendment privilege. The Supreme Court explained:

More relevant to this case is the settled proposition that a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not “compelled” within the meaning of the privilege. Our decision in Fisher v. United States, 425 U.S. 391 (1976), dealt with summonses issued by the Internal Revenue Service (IRS) seeking working papers used in the preparation of tax returns. Because the papers had been voluntarily prepared prior to the issuance of the summonses, they could not be “said to contain compelled testimonial evidence, either of the taxpayers or of anyone else.” [snip] It is clear, therefore, that respondent Hubbell could not avoid compliance with the subpoena served on him merely because the demanded documents contained incriminating evidence, whether written by others or voluntarily prepared by himself.

On the other hand, we have also made it clear that the act of producing documents in response to a subpoena may have a compelled testimonial aspect. We have held that “the act of production” itself may implicitly communicate “statements of fact.” By “producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic.” Moreover, as was true in this case, when the custodian of documents responds to a subpoena, he may be compelled to take the witness stand and answer questions designed to determine whether he has produced everything demanded by the subpoena. The answers to those questions, as well as the act of production itself, may certainly communicate information about the existence, custody, and authenticity of the documents. Whether the constitutional privilege protects the answers to such questions, or protects the act of production itself, is a question that is distinct from the question whether the unprotected contents of the documents themselves are incriminating.

What this means is that by responding to the Attorney General's order and turning over the emails, Hayes would be implicitly conceding that (1) these are her emails; and (2) they fall within the scope of the public records request. Those concessions would be important if the matter were to proceed to trial, because the emails could be entered into evidence without any further need for authentication (which basically means, a showing that they are real).

One way to see the significance of this concession is to imagine if, say, the FBI had obtained the same emails through a search warrant. Not only would law enforcement have to figure out which of her emails were responsive (as opposed to making her do the work), but now in a trial, the prosecution would have to figure out some way to authenticate the emails. Perhaps it would be enough to show that they were taken from Hayes' personal computer, but there would have to be some way to show that the email was hers. (This might not be that difficult here, in that people who received emails from Hayes could presumably testify that they recognize her email address.)

If the Fifth Amendment privilege applies, does that mean that the emails can't be obtained? I'd guess that for the vast majority of responsive emails, the answer is no, because they were sent to someone else whom the media can obtain them from. However, I suppose there might be some that might be responsive between Hayes and ex-Governor Kitzhaber (e.g., hypothetically discussing how she would or would not act with regard to Oregon business), and if each raised the Fifth Amendment act of production issue, both sender and recipient would be blocking public access.

That would leave immunity as the other option. There are three kinds of immunity: transaction, use, and derivative use. Transactional immunity is the gold standard; having transactional immunity means that the person can't be prosecuted for the subject matter of the immunity. Use immunity means that the specific testimony being compelled can't be used as evidence against the person, but the government can still bring charges using evidence it gets elsewhere. Derivative use immunity means the government can't use not just the specific testimony being compelled, but also any evidence that it discovers as a result of what it learned from the compelled testimony. In other words, say that a person receives use immunity and then is compelled to testify about a crime, during which the person admits to burying the murder weapon in a particular location. The person's confession is protected by use immunity, while the murder weapon is protected by derivative use immunity (unless the government can show it would have found the weapon anyway). The Fifth Amdnment doesn't require transactional immunity, but it does require use AND derivative use immunity as an alternative to the privilege itself, according to Kastigar v. United States.

This brings us back to Hubbell. The typical Kastigar situation (i.e., use and derivative use immunity) occurs when a person is compelled to testify; it's not generally about the act of production. Hubbell, by contrast, was. So Hubbell is a much closer analogue to Hayes' claimed defense. Hubbell received immunity for the act of production, and in his subsequent prosecution, the OIC indeed honored the immunity by not using the act of production to authenticate any documents compelled via subpoena. As the Supreme Court put it, the OIC took the position that it was as if the documents had magically appeared in the grand jury room.

Hubbell ruled, however, that the use of the compelled documents to find other sources of evidence was indeed a derivative use, and critically, that it was not enough that the OIC refrained from using the act of production itself. The problem - and here, I should note that Hubbell is far from a straightfoward case - seems to have been that the subpoena directed against Hubbell was so broad that it required him to use his own thinking against himself in deciding what was covered by the subpoena. Indeed, although the OIC was not even thinking about tax fraud at the time it issued the subpoena, that is one of the charges that it indicted Hubbell on after receiving the documents and studying them. Hubbell stands as a warning, therefore, that with a very broad subpoena, derivative use immunity might cast a long shadow.