Portland’s Bureau of Transportation allowed two e-scooter companies to unilaterally redact public records prior to their release, an unorthodox step by a government body to give private companies say over public information.

The consultations, disclosed by bureau officials Wednesday, reflect the city’s practice of letting companies decide what portions of public documents describing their operations they believe contain confidential trade secrets. Oregon public records law allows government agencies to withhold records that contain genuine trade secrets.

It also illustrates the fuzzy intersection of the government’s obligation to transparency and a company’s right to keep its proprietary secrets from competitors.

Portland officials said they consider company officials better equipped to know what constitutes a bona fide trade secret, and they said they feared the city could face legal action from highly paid corporate lawyers if they publicly disclosed information the national e-scooter companies considered proprietary.

The e-scooter situation arose after Ryan Felton, an investigative reporter for Consumer Reports, filed a records request for permit applications filed by companies Lime and Bird to participate in a city pilot program. The companies were awarded the permits, which allowed them for four months to deploy battery-powered scooters in Portland and charge riders a few dollars to zip around (often to the annoyance of pedestrians).

The permit applications Felton asked for contain a trove of information about Lime and Bird’s operations, including marketing details, scooter battery life information and, most importantly to the public, crash data.

City officials consulted with Lime and Bird, and the companies asserted the documents contained valuable trade secrets. The city then released the applications to Felton, but with sections redacted with black boxes by company officials.

That is unusual, said Jack Orchard, an attorney who represents the Oregon Newspaper Publishers Association in public records matters. Government officials have an obligation to decide what information is redacted from public records, he said.

“You don't have a non-public source say, ‘Oh, well we'd like to redact records this way,’” Orchard said.

“Why doesn’t the city just do its job?” Orchard said. “These are public records in the custody of a public agency.”

Requests for comment were not returned by the Bureau of Transportation; the office of Commissioner Chloe Eudaly, the transportation commissioner; or by attorneys representing Bird and Lime.

Jenifer Johnston, a senior deputy city attorney overseeing public records matters, said the nuances of trade secrets law are tricky and technical. The city allows companies to suggest redactions out of an abundance of caution, she said, and officials accept companies’ redactions if they appear to meet legal requirements.

It is better to have the city be overly cautious than to wrongly out a company’s trade secrets and face a costly lawsuit, Johnston said. She noted that anyone seeking city records may appeal to the district attorney for review of a decision to keep documents or portions of them secret.

That’s exactly what Felton, the investigative reporter, did. Usually the city would defend its decision to keep records secret; this time, it let Bird and Lime formulate the rationale. A senior city attorney emailed the district attorney’s office to say it wasn’t taking a position on whether the records should or should not be released.

In filings with District Attorney Rod Underhill’s office, the companies said giving Felton un-redacted documents would expose their valuable trade secrets. Underhill didn’t buy it.

“The materials certainly contain details here and there that would likely be of interest to a competitor,” he wrote, “but on balance these are marketing materials” and the companies did not show their release would hamper their ability to compete.

Underhill ordered the city to give Felton new copies of the permit applications – without any information blacked-out. The Oregonian/OregonLive has filed a request for the same documents and has not received a response.

-- Gordon R. Friedman

GFriedman@Oregonian.com