The Portland City Council today agreed to settle a public records lawsuit for $250,000.
Jeff Merrick v. City of Portland, started with Mr. Merrick’s public records request for communications from people to One Point of Contact, where citizens may report homeless campsite and similar issues. Portland refused to disclose the information, and Mr. Merrick, an attorney, challenged the denial, leading to two rounds of legal briefing to the District Attorney (The DA initially reviews denials of public records requests.) plus two rounds of trial court briefing and arguments. Then, Mr. Merrick appealed to the Court of Appeals.
The Court of Appeals agreed with Mr. Merrick. The remaining issue was payment of attorney fees for his time and the time of his appellate co-counsel, Brian Talcott of Dunn Carney, LLP. Mr. Merrick agreed to the City’s request to try to end the case through mediation with the Honorable Mary Diets, in lieu of still more briefing, court actions and accrual of legal fees. The settlement agreement requires payment of $114,500 to Mr. Merrick and $135,500 to Dunn Carney, LLP.
Mr. Merrick had the following statement.
I’m hopeful this result will make the City think twice about playing games with public records law in the future.
The Society of Professional Journalists, ACLU, League of Women Voters, and Open Oregon have condemned the city attorney’s abusive handling of public records requests and appeals. This case is just another example. It differs only because Oregon attorneys devoted energy, time, and money to oppose those practices.
Presently, Oregon law provides no consequences to people who willfully break the public records law. Only taxpayers suffer with payment of attorney fees both for the requestor’s legal fees and to the government lawyers who fight citizens. By contrast, some states make it a criminal offense to willfully obstruct disclosure of public records.
I propose the following changes:
- If the public body denies the request, identify the person who made the decision to withhold records.
- Make the ethical rules controlling lawyers more specific. Just as we expect criminal prosecutors not to pursue convictions against the innocent, we should require government lawyers not to oppose public records requests when they believe the law requires disclosure.
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Jeff Merrick has been involved in public records issues since the 1980s, mostly on behalf of clients seeking information. See, AA Ambulance and Jeff Merrick v. Multnomah County, 102 Or App 398 (1990). He was active in the 2017 legislative efforts to reform the public records law. The first Public Records Advisory Council recommend him and two others to Governor Brown to serve as the first Public Records Advocate, the position filled by Ginger McCall.
More info on Mr. Merrick here.