When the requester and public body cannot agree on (a) disclosure of Public Records or (b) costs to disclose, requesters have the right to appeal. The appeal process differs depending on whether you made the request to (1) an elected official (2) a state agency, or (3) a local public body.
Getting records from elected officials
If the elected official withholds records or overcharges a requester, then the remedy is to sue in court. By contrast, when a public body denies a record request, requesters have a cheaper and easier option, appealing to the Attorney General or District Attorney.
Appeal to Attorney General or District Attorney
Oregon statutes set forth the process at ORS 192.407 to 192.431.
Here’s the form to appeal state agency decisions to Attorney General.
To appeal city and local government decisions to district attorneys, check online with the local district attorney or use the following format:
I (we), ____________(name(s)), the undersigned, request the District Attorney of ______ County to order ______ (name of governmental body) and its employees to (make available for inspection) (produce a copy or copies of) the following records:
1.____________________(Name or description of record)
2.____________________(Name or description of record)
I (we) asked to inspect and/or copy these records on ______ (date) at ______ (address). The request was denied by the following person(s):
1.____________________ (Name of public officer or employee and title or position, if known)
2.____________________ (Name of public officer or employee and title or position, if known)
______________________ (Your Signature(s))
The Attorney General and district attorneys must act within seven days. If they do not grant the petition or rule on costs within seven days, the requester may file a lawsuit in circuit court. The seven-day deadline applies even when a district attorney refuses to act because the DA thinks public body never actually denied the request.
What if the Attorney General or district attorney rules against the public body? The public body may appeal by filing a lawsuit against the requester, an option which caused consternation when it results in a public body suing, for example, a mom seeking records from a school. I defended the mom, and the school board had to pay her / my attorney fees when we won.
Appeal to Circuit Court
Public Records Law cases are a priority in the circuit court. They take precedence on the docket over most other matters, according to ORS 192.431(2). The judge takes a fresh look at the arguments and may review records privately to decide if they should be disclosed publicly. The “burden of proof” is on the public body to convince the judge it was right. If the requester wins, the court “shall” award the requester attorney fees and costs. Either party may appeal the trial court’s decision to the Court of Appeals.
Conclusion
As with any dispute, one should consider engaging an attorney. I know public records law. Under some circumstances, I will accept cases under a contingent fee contract.
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.
