Category Archive: Public Records / Open Records

  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. 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.

  3. Replicating Failed Policy of Mass Shelters Perpetuates Human Suffering and Kills Neighborhoods.

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    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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