Portland City Council Agrees to Appeal a Court Ruling on Pricey Public Records Fees

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What makes a public fee "excessive"? That's what Portland City Council wants to ask in its appeal of a Multnomah County Circuit Court ruling. That recent ruling accuses the city of overcharging members of the public who request copies of city documents.

At Wednesday City Council meeting, commissioners unanimously approved a city attorney's request to appeal a November 2019 court decision made by Circuit Court Judge Shelly Russell. The decision was in response to a civil lawsuit filed against the city by local affordable housing advocate Alan Kessler in September 2018. Kessler had argued that the city's $205.61 price tag for a request (for emails involving a Historic Landmarks Commission member) was unreasonably high.

Under state law, any member of the public can request these kinds of documents, and the city is obligated to turn them over in a timely fashion. The city is allowed to pre-charge members of the public who request records with a "reasonably calculated" fee to pay for staff time spent retrieving the documents.

In 2018, Portland collected a total of $767,659 in fees associated with records requests.

Russell agreed that Kessler faced an unreasonable fine. In her ruling, Russell said the city unnecessarily assigned overqualified (and higher paid) employees to work on his low-level request, resulting in a higher price tag. Using the city's own formula to calculate record retrieval costs, Russell estimates that Kessler was overcharged by at least $25.

"The city's current method for determining fees for routing email and document search... is not reasonably calculated to reimburse it for its actual cost of making the records available," Russell wrote, "and results in overcharging the public records requester without providing a method to refund any overcharges."

Russell ordered the city to immediately stop charging people excessive fees for routine records requests and cover Kessler's $120,000 attorneys fees in the case.

The city, however argues that the term "excessive" is too vague and leaves the city with blurry guidelines moving forward.

"The City Attorney's Office believes that the judgment is unclear and seeks clarification from the Court of Appeals as to the breadth and scope of the judgment," writes Karen Moynahan, Portland's chief deputy city attorney, in a council document explaining the request.

In appealing the case, city attorneys hope to get a more concrete definition. On Wednesday, Moynahan said that, at times, higher-paid employees are needed to conduct 'sensitive' records requests, since they have higher security clearance. Moynahan said Russell's ruling doesn't make it clear if the city can still use those higher-paid employees for some record retrieval.

"I support an appeal so we can get this clarity," said Mayor Ted Wheeler at Wednesday's meeting. "We are not thumbing our nose at Mr. Kessler or the judge. What we need is clarity on specific legal matters."

Members of the public were less eager to support the appeal. During the meeting's public comment period, Street Roots reporter Emily Green explained to council—on behalf of the Oregon chapter of the Society of Professional Journalists—that delaying the ruling was detrimental to press freedoms.

"I'm urging you to commit to transparency and accessibility of public records rather than appealing this case, which instead would be using public resources to fight transparency," she said.

"We believe the ruling is clear," Green continued, "Don't violate the law, don't charge excessive fees."

Wheeler responded to her comments before casting his vote.

"To equate us asking the clarification with being anti-public disclosure or anti-press, I think, frankly, is a ridiculous comparison and I reject it," Wheeler said.

In the discussion that preceded the vote, Commissioner Chloe Eudaly asked city attorneys to consider making city records free for people whose requests takes less than an hour for a city staffer to complete. Currently, fees are only waived for requests that take 30 minutes or less.

The city's already been tinkering with the way it processes records requests. In 2019, Mayor Ted Wheeler used budget funds to expand the Portland Police Bureau's records program and axe records fees for crime victims.

Yesterday, mayoral candidate Sarah Iannarone released a "good government" policy proposal, which included a promise to charge "predictable fees designed to encourage vigilance by the public and press." Iannarone has also proposed sticking a $20 flat fee on any email record requests that captures fewer than 100 email documents.

"We will continue to make improvements," Wheeler said Wednesday, "and I look forward to the city getting the clarity we need to ensure that we are appropriately handling the approximately 30,000 public records requests we receive each year."

City attorneys have until Friday to file the appeal.