When the public body does not produce public records promptly or asks for too much money, facilitated dispute resolution or mediation is an option to resolve the dispute between requester and the public body or elected official. Mediation works when both sides act in good faith. If the public body or elected official is intentionally obstructing disclosure, then mediation is a waste of time, and you should just sue.
Three potential “mediators”
A requester has three potential options for some variant of mediation. The requester and agency may agree on any private mediator to help them resolve their dispute. Under private mediation, the parties decide for themselves about what they want to discuss and the ground rules. Private mediation requires paying the mediator.
Two “free” mediation possibilities are through the State Archivist and the Public Records Advocate (ORS 192.464). The sections below compare the authority and utility of each.
Disputes between Requester and State Agencies
1. Subjects of Mediation
Either party (requester or agency) may seek mediation services from the Public Records Advocate or the State Archivist. When the requester seeks mediation, the topics of mediation are the same regardless of who mediates: Denial of records, amount of costs and who should pay. When the state agency seeks mediation, the topics overlap on three matters: whether the records are public, whether an exemption applies and whether the agency is entitled to fees.
With the Archivist, public bodies may also seek mediation on whether the “scope of the public records request is too broad to be cost efficient.” Despite the different wording in the law, in practice, such “scope of request” issues will arise and be discussed with the Public Records Advocate, too.
2. Voluntariness – Parties
In private mediation, voluntariness is a prime ethical directive: a party may not be forced to mediate. The statute on facilitated dispute resolution with the Public Records Advocate authorizes the requester to opt-out of mediation within five days of receiving the state’s request to mediate. There is no opt-out provision for the state agency.
The rule controlling facilitated dispute resolution with the Archivist does not address whether one or both sides must participate. Consequently, the mediation default likely applies — that is, either party may say, “No thanks. I don’t want to mediate.”
3. “Voluntariness” – Mediator
The Public Records Advocate must mediate requester / state disputes if other requirements are met.
The Archivist may decline requests if the Archivist has reason to believe facilitated dispute resolution would not be productive or a party has acted in bad faith.
4. “Good Faith” Determinations
A big difference between using the Public Records Advocate or Archivist is on the question of “good faith.” If using the Public Records Advocate, either party may ask the PRA to determine whether the other party is acting in good faith. Not so with the Archivist.
If the PRA determines the requester did not engage in good faith, then the requester’s conduct is grounds to withhold records. If the PRA determines the state agency did not engage in good faith, that is grounds to award the requester all costs and attorney fees incurred after the PRA’s determination.
5. Drafting the Agreement
If mediation results in an agreement, both the Public Records Advocate and the Archivist must memorialize the agreement in writing.
Disputes between Requesters and Cities
When Oregon’s Archivist mediates requester / city disputes, the process is the same as with state agencies.
When the Public Records Advocate mediates requester / city disputes, the process differs from state agency mediation as follows:
- With cities, the Public Records Advocate is not required to serve as facilitator.
- With cities, participation is voluntary for both parties. Either party may opt-out
- With cities, there is no good faith / bad faith determinations.
Disputes between Requesters and Local Governments
The State Archivist may provide facilitated dispute resolution over requests to local public bodies. The law does not authorize the Public Records Advocate to mediate those disputes.
If mediation fails
If the parties cannot agree, the requester can simply appeal the decision of the pubic body or elected official. I cover appeals here.
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.
