The issue.
In the ideal world, the public information you want is already online, and you need not request records or consider costs. Often, however, the information is not posted. So, a public body must respond to requests, calculate its costs to respond, and then decide whether to charge you.
Costs have been contentious over the past few years. For example, when a union wanted to review records, the Port of Portland asked for $200,000 up front to gather the records with a warning of significant additional costs for attorney review. Some have accused public bodies of using fees as a sneaky way to deny the right to see public records.
Public bodies assure requesters the costs are legitimately incurred to obtain and review records. Even in private-sector lawsuit discovery, it can cost a lot of money to review records before production, they note.
The Statute.
Oregon’s Public Records Law authorizes public bodies to charge fees “reasonably calculated to reimburse the public body for the public body’s actual cost of making public records available[.]” ORS 192.324(4). The fees are not just for copying costs or the cost of a thumb drive. They may include attorney time to review public records to remove exempt information. Public bodies may also include costs for summarizing, compiling or tailoring the public records to meet the person’s request.
When a public body thinks costs will exceed $25, it must first ask for permission from the requester before proceeding.
Although public bodies MAY charge fees, they need not. The custodian of the records may waive or reduce the fees if the custodian determines it would be “in the public interest because making the record available primarily benefits the general public.”
The Practice.
Different public bodies have different fee schedules.
For state agencies under her control, Governor Brown ordered uniform fee practices. The Department of Administrative Services issues a policy controlling charges for executive state agencies. DAS rules note additional reasons to waive or reduce fees, such as when time spent fulfilling the request is negligible or when “payment would cause extreme or undue financial hardship upon the requestor[.]”
Other state agencies, including Oregon’s Archives Division, have their own fee schedules.
Local governments, too, have their own fee schedules. As a practical matter, once you make your request, the public body will tell you what it charges.
If you seek a fee waiver, you should explain why you think the public body should provide you records for free under statute (public benefit) or under any specific rules that apply to the public body.
What if I think the Agency is overcharging or I disagree with its decision to charge me a fee despite the public purpose of my request?
Requesters who disagree with the amount of the fee or the decision whether to charge the fee may (a) seek mediation or (b) appeal to the Attorney General if the request was to a state agency or to the local District Attorney when denied by a local public body. Elsewhere, I discuss the options for mediation and 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.
