Suggestions for Oregon Public Records Reform

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This post offers some thoughts on how to improve Oregon Public Records Law.

Adding Penalties for Intentional and Wrongful Conduct.

When public bodies comply with public records law in good faith, disclosure of public information can be prompt and efficient.  Sometimes, however, the response to public records depends upon whether the public official perceives the requester as friend or foe.  There is no civil or criminal penalty to public officials who intentionally and wrongfully delaying or denying public records request, as other states.  Instead, taxpayers suffer the penalty for such misconduct because taxpayers must pay lawyers to defend the action and pay the legal fees of the requester’s attorneys.  One suggestion is to provide for penalties for the actual person(s) who intentionally and wrongfully delay or deny disclosing public records

Last year, I provided the following suggestions to the Oregon Public Records Advisory Council.

 

Dear Members of the Public Records Advisory Council,

Thank you for referring me to the Governor.

As you work toward fulfilling the promise of the 2017 reforms, I wanted to share a couple of thoughts before closing my file.

Work with Judicial Department on Court Procedures.

Among your committee’s responsibilities is to identify inefficiencies and inconsistences in the application of public records law and to make recommendations on changes in law, policy or practice that could facilitate rapid dissemination of public records.  Low-hanging fruit for both of the above involve some work with the Judicial Department on procedures for handling court cases.

Delay in resolving disputes can defeat the purpose of a public records request.  One example is the case of ILWU v. Port of Portland, 285 Or App 222 (2017) in which there was a nearly 5-year delay between request and decision.  In my own lawsuit pending against the city of Portland, I requested certain records seven months ago, and there is still no decision on the merits of the City’s exemption claims.   Jeff Merrick v. City of Portland, Multnomah Co. Case No. 17 CV 32008.  [Update:  I won on the merits, and I am appealing the attorney fee decision.]

The PRAC should develop a working group to include members from the Judicial Department to consider: (1) urging trial courts to assign a single judge to handle public records lawsuits to develop expertise, avoid inconsistencies, and to speed the process and (2) an expedited appeal process in the Court of Appeals for some or all public records appeals.

Consider not requiring public bodies to sue citizens to appeal DA decision.

Currently, if a District Attorney decides against the public body, the public body must sue the requester.  Portland Public School’s lawsuit against Kimberly Sordyl gained national attention.  Perhaps you can develop a procedure where the public body may name the District Attorney as the defendant when a citizen is the requester (e.g., PPS vs. Rod Underhill ex. rel. Kimberly Sordyl), with the option for the citizen to substitute if she or he so desires.

Require denial letters to identify the decisionmaker.

People should know who decided to withhold records.  A simple line in every denial letter would suffice.  For example, “Decisionmaker:  the undersigned” or “Decisionmaker:  City Manager Jones” or “Decisionmaker:  Mayor Smith.”

Review HB 3037 (2015).

You may remember the circumstances giving rise to HB 3037.  When a person affiliated with an anti-union organization sought contact information of home health care workers, the public body stalled until the Legislative Assembly could rush through a bill to exempt the information.  Introduced on February 18, 2015, it became effective on April 9, 2015 when Governor Brown signed it.

Section 4 may have created unintended consequences.  At least one public body is attempting to use it to, in effect, overturn decades of court precedents that the legislative history never mentioned or acknowledged.

Conclusion.

I created an Oregon Public Records Law resource at http://www.OregonPublicRecordsLaw.info.  It provides a primer for requesters and for anyone who wants a succinct summary of why and how Oregon’s law evolved over the past four years.

Thank you, again, for your confidence in me, and good luck with the difficult work ahead of you.

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.

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2 Comments

  1. John Gear

    Oregon should simplify this whole process; all agencies subject to the public records act should be required to be, by default, entirely OPEN – that is, make all digital documents available for anyone to help themselves through a fileshare that mirrors the agency structure with the documents indexed by originator or custodian; every document that is created or received or used by the agency is uploaded nightly to the fileshare EXCEPT those documents that the agency thinks are exempt from disclosure, and that specific exemption is used in the archive as a tag on the document.

    That way, government discloses everything not subject to an exemption, and nobody needs to waste time on PRA searches, and the agency must classify every withheld document as exempt “at birth” — meaning the agency simply trains all its people on the PRA exemptions applicable to them, and classifies all the exempt documents by reference to the specific exemptions. The list of exempt documents is published and updated, but not the contents of the documents themselves. Public records disputes then would simply be challenges to the classification decisions, and agencies would not need to waste time and money (and people seeking records would not need to waste time and money).

    • Jeff Merrick

      You are exactly right.

      “Transparency by design” is the aspiration, and the state has added some positions over the past 3 years to work on that.

      So, the goal: A database design that keeps secret, what should be kept secret (tax information / health information) but everything else is open. On a spreadsheet, columns 1-5 are online for our review at 10:00 pm, but colums 6 and 7 are appropriately kept offline.

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