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This post offers some thoughts on how to improve Oregon Public Records Law.

Adding Penalties for Intentional and Wrongful Conduct.

When public bodies comply with public records law in good faith, disclosure of public information can be prompt and efficient.  Sometimes, however, the response to public records depends upon whether the public official perceives the requester as friend or foe.  There is no civil or criminal penalty to public officials who intentionally and wrongfully delaying or denying public records request, as other states.  Instead, taxpayers suffer the penalty for such misconduct because taxpayers must pay lawyers to defend the action and pay the legal fees of the requester’s attorneys.  One suggestion is to provide for penalties for the actual person(s) who intentionally and wrongfully delay or deny disclosing public records

Last year, I provided the following suggestions to the Oregon Public Records Advisory Council.

Dear Members of the Public Records Advisory Council,

Thank you for referring me to the Governor.

As you work toward fulfilling the promise of the 2017 reforms, I wanted to share a couple of thoughts before closing my file.

Work with Judicial Department on Court Procedures.

Among your committee’s responsibilities is to identify inefficiencies and inconsistences in the application of public records law and to make recommendations on changes in law, policy or practice that could facilitate rapid dissemination of public records.  Low-hanging fruit for both of the above involve some work with the Judicial Department on procedures for handling court cases.

Delay in resolving disputes can defeat the purpose of a public records request.  One example is the case of ILWU v. Port of Portland, 285 Or App 222 (2017) in which there was a nearly 5-year delay between request and decision.  In my own lawsuit pending against the city of Portland, I requested certain records seven months ago, and there is still no decision on the merits of the City’s exemption claims.   Jeff Merrick v. City of Portland, Multnomah Co. Case No. 17 CV 32008.  [Update:  I won on the merits, and I am appealing the attorney fee decision.]

The PRAC should develop a working group to include members from the Judicial Department to consider: (1) urging trial courts to assign a single judge to handle public records lawsuits to develop expertise, avoid inconsistencies, and to speed the process and (2) an expedited appeal process in the Court of Appeals for some or all public records appeals.

Consider not requiring public bodies to sue citizens to appeal DA decision.

Currently, if a District Attorney decides against the public body, the public body must sue the requester.  Portland Public School’s lawsuit against Kimberly Sordyl gained national attention.  Perhaps you can develop a procedure where the public body may name the District Attorney as the defendant when a citizen is the requester (e.g., PPS vs. Rod Underhill ex. rel. Kimberly Sordyl), with the option for the citizen to substitute if she or he so desires.

Require denial letters to identify the decisionmaker.

People should know who decided to withhold records.  A simple line in every denial letter would suffice.  For example, “Decisionmaker:  the undersigned” or “Decisionmaker:  City Manager Jones” or “Decisionmaker:  Mayor Smith.”

Review HB 3037 (2015).

You may remember the circumstances giving rise to HB 3037.  When a person affiliated with an anti-union organization sought contact information of home health care workers, the public body stalled until the Legislative Assembly could rush through a bill to exempt the information.  Introduced on February 18, 2015, it became effective on April 9, 2015 when Governor Brown signed it.

Section 4 may have created unintended consequences.  At least one public body is attempting to use it to, in effect, overturn decades of court precedents that the legislative history never mentioned or acknowledged.

Conclusion.

I created an Oregon Public Records Law resource at http://www.OregonPublicRecordsLaw.info.  It provides a primer for requesters and for anyone who wants a succinct summary of why and how Oregon’s law evolved over the past four years.

Thank you, again, for your confidence in me, and good luck with the difficult work ahead of you.

Jeff Merrick, Oregon Litigation Attorney

©2018 by Merrick Law, LLC and Jeff Merrick. The above is not intended as legal advice. It is for general information purposes only. Reading it or attempting to contact me does not mean I am your attorney. I only represent people after we sign a written contract.

Today, Secretary of State Richardson filed a proposed rule to make more accessible public information on how his agency spends money.  The financial transparency rule will disclose expenditures monthly.

This is another step toward “transparency by design,” which refers to making public information public, without anyone needing to request public records and waste resources to respond to requests.  The public may comment on the rule, and I urge people to do so.

Oregon adopted many changes intended to improve public records law over the past few years.  (I summarized those changes here).   They included creating a State Chief Information Officer, a Chief Data Officer, The Public Records Advisory Council, and the Public Records Advocate.  Nevertheless, public bodies and elected officials still must decide how transparent they want to be.  They can fight requests, they can keep secrets, or they can make public information publicly available.

I congratulate the Secretary of State for “walking the walk” and moving toward more – and more timely – transparency.

Jeff Merrick

(c) Jeff Merrick and Merrick Law, LLC

Contents

1. Homelessness: Oregon is the Model of Failure.
2. What is our current policy making process.
3. What do successful jurisdictions do differently?
4. What does the past teach us about what works and what does not work?

A. Concentrating service-dependent people creates ghettos that are unhealthful for the people served and for the neighborhood.
B. Mass shelters provide fertile ground for the spread of contagious disease.
C. Work programs work.
D. Open LEADERSHIP founded upon data and performance is critical to success
E. Housing First, NOT Mass Shelters

5. What can mere citizens do?

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On July 31, I was pleased to participate in the meeting of citizens concerned about the proposed low-barrier homeless shelter across the street from a schoolhouse on SE Foster.  Although South East Allied Communities invited public officials, no public official attended or sent a representative.

Officials continue their approach of not wanting public input that might offer insights not raised behind closed doors by the usual suspects or at steering committee meetings of people hand-picked by officials.  Continued inbreeding only spawns more of the same policy that has caused Oregon to rank 49 of 51 (states plus District of Columbia) in sheltering homeless.

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Last month, the Oregon State Bar charged a Portland, Oregon attorney with misconduct arising from settlement dollars that belonged to her clients.  Really bad conduct, including settling a personal injury case for $100,000 but not telling the client.  Instead, the attorney told her client she settled for $40,000.  Under that scenario, the client would receive roughly $26,000 instead of $67,000 of the actual settlement of $100,000.

Then, I wonder if the attorney earned full value for the case.  Did she need to settle fast for money SHE needed and fail work the case hard enough?  Should the case have settled for $200,000 instead of $100,000?  Could the client have received 2/3 rds of a $200,000 settlement, instead?

The Portland attorney was Lori Deveny, who gave up her law license instead of fighting the charges.  I know her.  I’d seen her at professional meetings.  I’d sent her Christmas cards in the 2000s.  I was surprised.

Today, a New York attorney was arrested for stealing from his clients.  His past included being the President of the Brooklyn Bar Association.

So, as a client, who do you trust?

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EEOC announced six multi-million dollar employment law settlements or verdicts last quarter, including a jury award of $5.1 million because an employer pushed a self-help “religion” on its employees.  Here’s the count down.

#6:  University pays $2.66 million and will increase women’s salaries in pay discrimination case.

EEOC charged the University of Denver paid a class of female full professors at Sturm College of Law lower salaries than it paid similarly situated male professors.  The average disparity was almost $20,000 per year.

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In Portland Public Schools v. Beth Slovic and Kim Sordyl, we won and submitted a petition for attorney fees.  In response, the opposing lawyer wrote to the judge:

“Mr. Merrick stepped in due to the untimely death of Rick Van Cleave and picked up and filed the final briefing and argued the cross-motions for summary judgment in an efficient and effective manner.”

Certainly, I cannot argue with that.  Thank you!

Portland City Council voted today to pay my attorney fees and put and end to the public records lawsuit, Tyler Bechtel v. City of Portland and Mayor Wheeler, Case No. 18 CV 04107.  Here’s The Oregonian article on it.

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Public Records Law requires public body disclosure of more detail from attorney’s billing statements, ruled the Kentucky Attorney General.

The request came from the editor of the College Heights Herald to Western Kentucky University seeking billing and payment records between the University and a law firm. WKU produced a heavily blacked-out version of the billing statement.

WKU argued redactions were appropriate to preserve the information protected by the attorney-client and work-product privileges.

The attorney general’s opinion sets forth the following points:

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Yesterday, the Oregon Court of Appeals held a woman may sue a surgeon (who allegedly harassed her at work) for defamation AND for retaliation under the employment laws even though surgeon was not her employer.  The employment law claim provides for attorney fees, where a defamation claim does not.  He badmouthed her AFTER both left their place of employment.

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