A Multnomah County judge ruled Monday that Portland must stop charging excessive fees for routine email and document searches to fulfill public records requests. The city’s current system for determining records search costs is unreasonable, she declared.

Circuit Court Judge Shelley D. Russell’s order, first reported by The Mercury, stems from a lawsuit filed in September 2018 by attorney and activist Alan Kessler, who claimed the city overcharged him by requiring him to pay $311.67 for metadata from emails between a member of Portland’s Historic Landmarks Commission and four employees at the Bureau of Development Services.

Russell noted that the city often uses high-paid employees to conduct public records request searches, which can drive up the costs for the requester, and doesn’t have a method to refund money to requesters when it overcharges them.

[Read the judge’s order and opinion]

A trial held Nov. 4 and Nov. 5 resulted in Russell’s ruling and her injunction against future high search charges. The city gave Kessler a $52 refund on Halloween in acknowledgment it had overcharged him by overstating an employee’s hourly pay.

Russell wrote that the city is also liable to pay Kessler’s attorney fees.

The Oregonian/OregonLive reported extensively in 2018 about the police bureau’s high-cost low-speed approach to helping the public access records.

“I think the public has a way better shot now at getting records at a reasonable price,” Kessler said Tuesday. “All we wanted was for them to bring down the search fees for records requests.”

Tracy Reeve, Portland City Attorney, said the city was “appreciative of Judge Russell’s careful consideration of the issues.”

“We are still evaluating the decision and determining our next steps,” she said.

Kessler filed his records request to the city in August 2018, the city denied it a week later and he appealed to the county district attorney’s office, which ordered the city to produce the records. The city then charged Kessler $205.61, estimating it would take two hours for a technology services bureau to search through the email accounts and other record keeping services.

But the city overstated the hourly pay rate of the analyst who performed the search by about $12. Furthermore, evidence shows the city billed Kessler for a 1.25 hour search, but the analyst recorded spending only one hour on the work.

The city billed Kessler for 30 minutes of a manager’s time, however, while the manager actually spent 37 minutes conducting what the city describes as oversight and record keeping regarding the request.

The judge noted that the city adds a 39% surcharge to a staff member’s hourly pay rate to account for pension, health care and vacation benefits.

The city calculated the analyst’s compensation rate at $78.15 an hour and the manager at $91.92 an hour.

A city public records coordinator sent Kessler an additional bill for $106.06 in September, saying the city had underestimated the number of emails covered by the request. The city gave Kessler the records at the end of September.

The city has never done a review of the fees charged by its technical services bureau for responding to public records requests, Russell said. The bureau spends less than 5% of its time on public records requests, and the manager testified that people who request records typically are charged the “worst case” estimate.

“If the estimate is low, the city sends a revised estimate with the increased costs,” Russell wrote.

“The city does not have a mechanism in place to refund overcharging that results from high estimates,” she wrote. Russell said the city is looking to hire someone at a lower paygrade to handle requests, with the intent of lowering costs for the city and requesters.

Charley Gee, a Portland-based personal injury attorney who represented Kessler in the case, said he believes the suit should have never gone to trial.

“As a taxpayer, I think it has to be kind of frustrating,” Gee said. “The city has salaried lawyers making a lot of money and they were willing to take this all the way to trial just because they didn’t want to admit that their system is broken and flawed.”

“At any point they could have just fix the overall issues that we raised, like we were asking them to, but they just weren’t interested.”

-- Everton Bailey Jr.

ebailey@oregonian.com | 503-221-8343 |@EvertonBailey

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