The Oregon Department of Justice on Monday lifted an order requiring some state agencies to charge the public for government records, overturning its own 14-year-old advice.
Deputy Attorney General Frederick Boss ruled that the Public Employees Retirement System declined to reduce or waive a fee it charged a journalist seeking records based on a 2002 DOJ order the agency no longer believes is valid.
Boss said in his opinion that PERS may be “legally required” to waive or reduce fees for public records, a reversal of the agency’s 2002 order, issued under former Attorney General Hardy Myers, that said it was required to charge full price for records requests.
“Although a public body enjoys discretion with respect to whether to grant or deny fee waivers and reductions, that discretion is not unlimited,” Boss wrote. “In some circumstances, waiver or reduction can be legally required.
“It has never been suggested that PERS cannot pay appropriate overtime, pay for reasonable accommodations for employees and members of the public with disabilities, pay the wages Oregon’s prevailing wage law requires for certain construction projects, or pay expenses associated with collective bargaining,” Boss wrote.
“The fee waiver and reduction requirement of the Oregon Public Records Law appears to be the only generally applicable law this office has said PERS cannot obey,” he wrote. “We see no substantive justification for this unique treatment.”
Boss’ ruling comes after PERS employees charged a reporter from the Statesman Journal in Salem $112 for travel receipts for PERS employees. Boss didn’t rule that PERS must waive the fee, but he sent it back to the agency to reconsider its decision based on the new order.
It wasn’t immediately clear how sweeping Monday’s order would be.
The Bulletin is waiting for the DOJ to rule on a decision by the Oregon Lottery to charge $262 for an email thread containing around a dozen emails. Agency officials said they submitted the documents to the Department of Justice to see whether one of over 500 exemptions applied and could block them from public view, and that they were legally required to collect money before releasing the documents.
Public records experts say excessive fees and hundreds of exemptions make it difficult for the public to hold governments accountable. Portland media law attorney Steven Wilker said it was a “correct application” of state law.
“It’s just refreshing because it suggests the attorney general is taking a position that records should be public and publicly available,” Wilker said.
Oregon is undergoing debate around how best to reform its public records law to improve transparency at all levels of government.
Attorney General Ellen Rosenblum is leading a task force that includes journalists and government representatives. The groups are working toward a bill lawmakers could consider in the 2017 session that starts in February.
— Reporter: 406-589-4347,