Category Archive: #openrecords

  1. City of Portland Violated Public Records Law by Overcharging Requesters. 

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    Yesterday, Judge Shelley Russell held Portland’s method for determining fees to produce public records violates public records law because it does not refund overcharges.  Here’s the opinion and order.

    The court found Portland provides an estimate based on the worst case scenario – the most it would cost to comply.  The city requires more money when it underestimates the actual cost.  But what does the city do when it collects more than the actual cost?  What then?  The city pockets the excess.  That’s illegal, and the court ordered the city to stop doing that.

    Once again, it was an attorney who served as a plaintiff, Alan Kessler, who worked with Charlie Gee.  A non-lawyer neighborhood activist or member of the Press cannot take on these battles because they do not have the resources to mount legal challenges.  Thank you and congratulations to both of them.

    Take away number 1 – other claimants out there?

    With this ruling, everyone else who paid an estimate and was not asked to pay more MIGHT have a claim against the city because there’s a reasonable chance they overpaid and never received a refund.

    Take away number 2 – ethics?

    Perhaps the city needs to reconsider its overall ethics.  In the Oregon Department of Justice under Dave Frohnmayer, I was taught public attorneys need to play it straight:  follow the law and produce the records if the law requires it, even if production is contrary to the client’s litigation or other interest.  My sense is the in-house lawyers at the City of Portland view their role differently: as advocates for the goals-du-jour of their client contacts.  If true, I believe that is not the proper ethical standard for that office.

    Jeff Merrick, Attorney.

    © 2019 by Jeff Merrick.  This is not intended as legal advice.  Unless we have a contract, I am not acting as your lawyer.

  2. The Bialostosky v. Teri Cummings public records case is a misfire, not a precedent


    A writing in the possession of an elected official that contains information relating to the conduct of the public’s business is a “public record.”  Period.  Journalists are dismayed at a ruling that seems contrary to this law.  Never fear.  The trial court order in Bialostosky v. Teri Cummings is not a valid precedent because the well-meaning teenager who presented the case did not give the trial judge the record he needed to rule correctly.

    The law is clear.

    A  “‘Public record’ includes any writing that contains information relating to the conduct of the public’s business[.]” ORS 192.411(5)(a).  Even if the writing is on a “privately owned computer” it can be a public record subject to disclosure if it relates to the conduct of the  public’s business.  ORS 192.411(5)(b).

    The allegations and argument were faulty.

    The people of West Linn elected Theresa Cummings to serve as a city councilor.  She kept notes during public meetings, allegedly relating to the conduct of the public’s business.  Mr. Bialostosky asked the  City of West Linn to produce her notebook.  “They are not our records,” said the city.

    Then, Mr. Bialostosky requested the notes directly from Councilor Cummings, and she did not provide them.

    Mr. Bialostosky sued.  In every lawsuit, the Complaint defines the issues on which the court may provide relief.  The Amended Complaint asked the court to declare “that Ms. Cummings as an elected official is a public body who is subject to Oregon Public Records Laws[.] (Para. 17).  At argument Mr. Bialostosky “conceded” that the definition of “public body” was “critical to his assertion that the notebook is a ‘public record.’”

    Some people view the role of a trial judge to help achieve the right outcome.  Others view the role of a trial judge to resolve the issues put to him or her, without assisting one side or the other make their arguments.  Mr. Bialostosky asked Judge Breithaupt to rule that Councilor Cummings is a public body.  Correctly, he ruled she is not, just as a quarterback is not a football team.

    This case is not a precedent for a properly presented case. 

    First, unlike appellate opinions, trial court opinions are not binding on any future trial court.

    Second, the problem with Bialostosky v. Cummings as a precedent is that Councilor Cummings did not need to be a public body.  Oregon’s Public Records Law provides a two-track appeals system, one for elected officials and another for public bodies. This case confused the two tracks.

    Third, although Judge Breithaupt’s holding may have been a proper resolution of the flawed case in front of him, the holding is WRONG as a statement of general law. He held, “the notebook was not, as required by the definition contained in ORS 192.311(5)(a), ‘prepared, owned, used or retained by the public body.’”

    The law, divorced from the specific and flawed record of this case, does not require the record be prepared, owned, used or retained by the public body.  The definition follows:

    192.311(5)(a) “Public record” includes any writing that contains information relating to the conduct of the public’s business, including but not limited to court records, mortgages, and deed records, prepared, owned, used or retained by a public body regardless of physical form or characteristics.

    (b) “Public record” does not include any writing that does not relate to the conduct of the public’s business and that is contained on a privately owned computer.

    The plain language does not “require” the documents be “used or retained by the public body.” That is merely one example of records that “contain information relating to the conduct of the public’s business.”

    Other records – including those in the hands of elected officials – that contain information relating to the conduct of the public’s business may be public records subject to disclosure to any person.

    THAT is the law.

    Jeff Merrick, Oregon Litigation Attorney

    Helping people with claims against government, including public records.

    ©2019 by Merrick Law, LLC. and Jeff Merrick

  3. Suggestions for Oregon Public Records Reform


    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.


    I created an Oregon Public Records Law resource at  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.

  4. Proposed Rule Implements “Transparency by Design.”

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    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

  5. “Leaders” continue to dodge good ideas from concerned citizens.

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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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  6. Public Body Must Reveal Information from its Attorney’s Bill

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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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