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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.

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