A Multnomah County judge granted a temporary restraining order October 1, barring District 2 City Councilor Dan Ryan from deleting messages held on his private cell phone and other devices. The restraining order stems from a lawsuit filed by the Mercury seeking records from the councilor that weren’t provided in a public records request. The same day the court order was issued last week—Ryan later submitted in a court declaration—his spouse traded in his personal phone for a new one.
By law, communication made by elected officials as part of their job duties is considered public record except under narrow circumstances. City councilors are given city-issued phones and computers to perform their duties, but communication made on private devices could also be subject to public disclosure if it pertains to their role as an elected official.
It’s unclear how often Ryan uses his personal devices to communicate about city business, and whether any relevant messages are accessible. The councilor told the court he set his device to automatically delete messages after 30 days beginning in March, and that he no longer has the phone he was using until recently. The councilor indicated in court records that the information on his device, including messages and metadata, appears to have been preserved.
The court is scheduled to hear arguments this week to decide whether to issue a preliminary injunction requiring Ryan to continue preserving evidence that may be held on his personal phone while litigation is ongoing. City attorney Trevor Byrd sent a statement to the court Wednesday saying Ryan does not intend to challenge a request for a preliminary injunction.
The plaintiff, the Mercury, filed a lawsuit against Ryan and the city of Portland seeking disclosure of public records on September 1, asserting that the former city commissioner and current councilor failed to disclose messages pertaining to city business held on his personal device dating back to January 2025. Now, it’s unclear if the records are available at all. And whether the courts will allow subpoenas seeking to locate them on other devices is still an open question.
The case may give insight into the city’s approach to Oregon’s public records laws, and may test the strength of legal guardrails around city officials using private devices to do the public’s business.
The complaint asked for a court order demanding that Ryan preserve every message about city business on any device he used, along with its metadata. A courier served legal documents to Ryan’s office at City Hall on September 1, alongside a letter demanding the preservation of evidence.
“You are a named defendant; this letter accompanies the summons and complaint,” a letter from Alan Kessler, the Mercury’s legal counsel in the case, stated. “It is notice and demand that you preserve the evidence described below, which exists in places only you control.”
Kessler’s letter noted that under state law, communications about city business on private devices are public records, and the decision to keep or delete them rests with the account holder. However, city archiving software prevents the deletion of records on city phones.
Auto-delete enabled
Since March of this year, Ryan’s personal phone has been set to auto-delete messages after 30 days, a setting that remained in place until October 1, according to Ryan’s declaration in court. He said he used software to back up his personal phone on February 12, a few weeks after he was seen holding his private phone up in a January 14 public meeting, captured on the city’s video livestream. Ryan is required to preserve the backup files under the new court order.
Multnomah County Circuit Court Judge Judith Matarazzo agreed to grant a temporary restraining order Thursday, October 1, prohibiting Ryan from deleting records from his devices.
Ryan’s phone remained on an auto-delete function up until October 1, despite a pending court hearing regarding the retention of the councilor’s messages, according to court documents.
The evening of September 29, Kessler emailed Ryan’s attorneys to notify them that he would appear before a judge on October 1 to seek a temporary restraining order requiring Ryan to preserve his records. In the same email, Kessler asked if Ryan would agree to disable automatic deletion and stop destroying communications while the case was pending.
On September 30, in the morning, Ryan’s counsel, Deputy City Attorney Trevor Byrd, replied.
“The Councilor has not disabled the auto-delete, and is declining to do so at this time,” Byrd wrote.
Byrd added that the messages preserved by a restraining order would have been created after August 30, saying, “whatever communications would be preserved as result of TRO are outside the realm of relevant or discoverable evidence.”
The next morning, on October 1, Ryan left his phone at home “because it would not hold a charge,” according to Ryan’s declaration. That same day, he said his spouse traded in his phone for a new one while the councilor was away.
“My spouse traded my phone in for a new phone, therefore I am no longer in possession of that device,” Ryan’s declaration states. “I had no intention of violating the Court’s order. I was not aware of the Court’s order until after the phone was traded in. As far as I know, all of the information on my phone was preserved, including messages and metadata, and there has been no indication that anything was lost. This phone will be preserved throughout the pendency of this litigation.”
It’s unclear if all messages and metadata were in fact preserved, but it appears Ryan agreed to not delete messages sent or received after the temporary restraining order was issued. The Mercury’s legal counsel has issued 10 subpoenas—five individuals and the five organizations they represent—who may hold communication records with Ryan on their own devices. Those listed are not named parties in the litigation, but were included in the Mercury’s initial requests for public records.
The subpoenas served to the city on September 8 include the Portland Police Association and its president Aaron Schmautz, the Northwest Oregon Labor Council and its secretary treasurer Laurie Wimmer, the Portland Metro Chamber and its vice president of public affairs Jon Isaacs, BMO Real Estate and its executive Brian Owendoff, and AFSCME Local 189 and its president Rob Martineau.
The city, for its part, has moved to quash the subpoenas, arguing that the records sought should not be used for the discovery or investigation of communications, are “not even remotely related to the dispute,” and that using the power of the courts to compel “production of records held by private individuals or organizations not related to the case is a glaring abuse of the courts,” according to court records.
“Declaratory actions cannot be used as an end-run around the public records law such that litigants can access irrelevant and private records that they could not access otherwise,” the city’s motion reads.
It isn’t the first time a local public official has traded in a personal phone amid pending public records litigation. In a public records case filed in 2022, former Mayor Ted Wheeler admitted in court that he traded in a personal cell phone that he used to conduct city business after he was served legal documents. The city ultimately settled the case, in which Alan Kessler was the attorney and his brother, Michael Kessler, was the plaintiff. Byrd was also Wheeler’s attorney on that case. The city ultimately released a trove of Wheeler’s records.
Ryan’s office did not respond to the Mercury’s request for comment, and the city attorney’s office declined to comment.
Disclosure: The Mercury is the plaintiff in this case, and seeks no monetary damages. This reporting is based on public court documents, which are available through the Oregon Judicial Case Information Network (OJCIN).
