Salem, Ore. – Following a previous refusal by the Oregon Humane Society and its Humane Law Enforcement (HLE) division to turn over public records to Equestrian Media Group related to the notorious horse neglect case involving Gwenyth Davies, the Oregon Department of Justice has issued an order that determines the HLE is subject to Oregon public records law and is indeed a ‘functional equivalent’ of government.
According to the Associated Press, Davies was arrested in 2019 after 61 horses were seized from her property near Eugene, Oregon. Davies is also currently wanted on a warrant after prosecutors alleged in court filings that she violated multiple conditions of her probation. This is now the second time Davies has violated probation following her 2020 sentencing, with her first probation violation in 2021 that was first reported by Equestrian Media Group.
On November 22nd, the Oregon Department of Justice issued the Nov 22nd order which granted Equestrian Media Group’s petition and declared the Oregon Humane Society must comply with and is subject to Oregon Public Records Law (OPRL).
“To the extent that OHS engages in law enforcement activities, it is the functional equivalent of a public body for the Public Records Law,” the order signed by Deputy Attorney General Lisa Udland said.
In October, Equestrian Media Group submitted a public records petition with the Oregon Attorney General after Colin Hunter with Bradley Bernstein Sands, an attorney representing OHS, shockingly argued that the organization was “private” and that its law enforcement entity was not subject to Oregon Public Records Law (OPRL).
This publication’s success also came despite not retaining legal counsel during the petition proceeding with the Oregon Department of Justice. The petition was also only submitted after the OHS continued to delay responses to this publication’s records request and initially signaling the appearance that it was working to produce records per the OPRL.
While the OPRL on its face does not cover private organizations, a 1994 Oregon Supreme Court ruling in Marks v. McKenzie High School Fact-Finding Team laid out a 6-part “functional equivalent” test often referred to as the “Marks test” that determines when private organizations, or parts thereof, are subject to public records law.
According to the Oregon Attorney General’s Public Records Manual, “On its face, the Public Records Law does not apply to private entities such as nonprofit corporations and cooperatives. However, if the ostensibly private entity is the ‘functional equivalent’ of a public body, the Public Records Law applies to it.”
Equestrian Media Group initially submitted its petition with the Multnomah County District Attorney, as the OHS was also not technically a state agency over which the Oregon DOJ typically has jurisdiction when it comes to public records appeal petitions. It was later determined that the DOJ was the proper venue as the HLE would be considered the functional equivalent of a State law enforcement entity instead of a local public body.
In the petition, Equestrian Media Group argued that OHS’ law enforcement division was a functional equivalent of government: “The claim by OHS that its law enforcement branch is not a ‘functional equivalent’ is beyond infeasible,” the appeal petition stated.
“The delegation of law enforcement functions, which carry a heavy weight of powers even when wielded by the government directly, is a prime example of the purpose of Oregon Public Records Law when it comes to a determination of functional equivalency and the rights of the people to inspect such records.”
OHS also stated in support of its argument that the HLE accounted for only 3.3% of the organization’s expenditures.
“While immeasurably important in promoting the enforcement of Oregon’s animal cruelty laws, the organization’s HLE function represents a relatively small proportion of its
operations and expenditures,” OHS said in its October 19th response to the Oregon Attorney General on the petition.
Equestrian Media Group countered in a rebuttal response that such an argument was irrelevant, stating that it had not been argued that the entirety of the OHS was a functional equivalent of government subject to OPRL, but only the HLE division.
“OHS’ attempts to claim that the size of HLE, being only 3% of its budget, weighs in the overall balancing test under Marks. We disagree, and for some of the same premise[s] outlined in (1), this is not an assessment of OHS as a whole, but simply an assessment of the HLE entity for which we are seeking records. We have not argued that the entire OHS would be subject to Oregon Public Records Law, and the fact that the HLE is only 3% of OHS’ budget is irrelevant in determining the functional equivalency of that division alone.”
This publication went on to also point out in the rebuttal response concerns that privatization of government functions could provide a curtain on public trust and transparency.
“In our modern democracy, the implication that the government can delegate the most powerful authority even wielded by government itself to a private entity that would then not be subject to the extensive expectations and legal precedence, both state and federal, of transparency and accountability, is nothing but chilling. It runs the great risk of further eroding the already low historic levels of trust our society has in law enforcement.”
The order issued by the DOJ ultimately concurred with these and other arguments made.
“Because we find that such functions are traditionally governmental in nature, we conclude that the policy of ensuring public access to information on which governmental decisions are based requires OHS to make records relating to is law enforcement activities available for public inspection,” said Deputy Attorney General Udland.
Udland went on to question other arguments made by the OHS which included questions on law enforcement functions performed by the HLE division being traditionally associated
with government.
“Although these examples demonstrate that OHS has long been affiliated with the enforcement of the state’s animal cruelty laws and that the state has, at times, vested humane law enforcement authority in certain OHS employees, we are not persuaded by OHS’ argument,” said Udland.
“[T]he individuals employed by OHS who conduct animal cruelty investigations and act as
certified police officers, are authorized to act in the name of the State of Oregon and
charged with the duty to act under color of Oregon law, consistent with the ethical, legal
and policy standards and requirements which apply to every sworn police officer of the
State[.]”
Following the order, OHS was afforded more time to formally respond to Equestrian Media Group according to legal timelines typically afforded to a public body: “Because this order is the first notice to OHS that it must comply with the Public Records Law as to its humane law enforcement operations, the various rights and responsibilities associated with that law, including the processing timeframes prescribed by ORS 192.329, attach as of the date of this order.”
Despite the Oregon DOJ’s ruling, the OHS is now refusing to provide the requested records citing other OPRL exemptions. In a December 8th email to this editor, Hunter stated:
“Following HLE’s review of responsive records in its possession, I can report that all responsive records are exempt from disclosure pursuant to ORS 192.345(3), in that they constitute “investigatory information compiled for criminal law purposes” as to which the public interest does not require disclosure. In particular, disclosure of the records in question would likely interfere with the ongoing criminal proceedings relating to Ms. Davies. Any public interest in disclosure of the records at this time is insufficient to overcome the countervailing interest in protecting the integrity of those proceedings.”
Hunter went on to say, “You are entitled to seek review of HLE’s decision pursuant to ORS 192.411.”
Equestrian Media Group has not yet decided if it will once again appeal to the Oregon Attorney General, but we believe the withholding of part of the requested records, namely previous email communications that don’t specifically involve the current probation violation, holds little investigatory value in keeping private.
Ongoing legal issues for Davies & questions of police intimidation throughout investigative reporting efforts
Numerous sources, who have spoken only on the condition of anonymity, have alleged that Davies has fled the state and is no longer in Lane County. Davies was alleged by the State prosecutors to have failed to keep up with her restitution payments and comply with providing photographs of the few horses she was allowed to keep in her possession.
No details have been made available regarding Davies’ horses, or if authorities have taken any other action amid the new concerns.
Court records showed she was behind for several months– but last paid in September. Since the issuance of a warrant and payment in September, no further restitution payments have been made by Davies or her husband who had also been noted to have paid for her.
Inquiries made with the Lane County Sheriff’s Office (LCSO) asking about any efforts to apprehend Davies– who is believed to have fled the state– have gone without response. LCSO has been far less responsive to Equestrian Media Group after concerns were raised regarding the conduct of an LCSO deputy’s illegal detention of Equestrian Media Group’s Managing Editor.
Deputy Bradly May illegally detained and attempted to intimidate this reporter into leaving a public highway and stopping an in-progress interview with a neighbor of Erica & Raina Ott, a mom and daughter duo who were also charged and convicted in connection with the Gwenyth Davies horse neglect case.
Raina Ott had a warrant for her arrest at the time for an alleged probation violation. 911 audio obtained by Equestrian Media Group also confirmed that Ott falsely alleged to dispatch that our reporters had been coming to her residence for the preceding five days, prompting the response by Deputy May and a Bureau of Land Management (BLM) officer at the property off Highway 58 near Eugene.
The location did not have any permanent dwellings on the property and was allegedly the commercial location of the Ott’s equestrian and dog facilities, but it is believed the duo and others were living in multiple trailers on the property.
Ott was also recently trespassed for alleged fraud at a Coastal Farm & Ranch Store in Eugene weeks after being released from a 45-day jail sentence on the same probation violation.
An internal investigation of May was initiated, but follow-up by the agency was self-admittedly lacking and delayed. After being prompted for the last time in August, the LCSO did provide a response dated August 30th but provided no details on the actions it took involving Deputy May.
“We take all allegations seriously and we have reviewed the issues you raised and have taken appropriate action. The Sheriff’s Office apologizes for the delay in response to you in writing with the resolution of your complaint.”
Deputy May had also alleged during the altercation with this reporter that Oregon was a “stop and ID” state, which was inaccurate. Stop & ID refers to state laws that make it a primary or secondary offense if an individual stopped by police must identify themselves, typically providing a name and sometimes date of birth, depending on the state. There is no such requirement to carry and provide actual identification unless the stop involved the driving of a motor vehicle.
Even if Oregon had such a law, this reporter had already identified himself to May at the start of the interaction before the detention, providing a full name and even press identification.
The encounter was not part of a traffic stop and is an issue that has frequently been addressed by courts across the country, including the U.S. Supreme Court cases of Terry v. Ohio, Hiibel v. Sixth Judicial Dist. Court of Nevada, and Brown v. Texas, among others.
May did not appear to have the constitutional grounds to effect the detention for simply refusing politely to provide a driver’s license when this editor disputed Ott’s inflammatory allegations amid May’s questions that appeared dissatisfied with the public filming and consensual interviewing of Ott’s neighbors.
Instead– according to multiple civil rights attorneys– May’s action appeared to have been a retaliatory action under the 1st Amendment known as a Section 1983 violation.
In a shocking act of lacking public transparency and accountability, officials with the Bureau of Land Management have also refused to even identify the officer who assisted Deputy May on the scene.
The officer, later identified as Raymond Huffman, also claimed during the encounter that his body-worn camera was not running when asked. He also refused a polite request to turn on his body-worn camera, allegedly in violation of agency policy. Both officers refused to fully identify themselves during the encounter when asked as well.
Freedom of Information Act requests submitted with the BLM took nearly half a year for responses and ultimately included nearly zero material. Emails provided redacted the entire names and email addresses of communications between what is believed to be a supervisor from the BLM Springfield office in Oregon to the officer or another official. The content of one email simply indicated a request to “call me”, avoiding further communication that would likely be subject to public record.
The BLM’s responses did not acknowledge any requests for the body-worn camera in the event the officer may have actually been recording the encounter. LCSO has not yet issued body-worn cameras to their deputies, so none were available.
Despite the BLM’s repeated refusal to even identify Huffman, a public records request with Lane County for a listing of the officer names linked to their identifiers in their computer-aided-dispatch system was successful in leading to Huffman’s eventual identification by Equestrian Media Group.
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