The American Civil Liberties Union of Oregon is defending a local social justice organization, the Central Oregon Peacekeepers, in a lawsuit brought on by the city of Bend over thousands of public records.
The public records dispute has launched the issue of access to public records into the limelight, with the ACLU arguing the city has acted in “bad faith” by charging the racial justice activist group differently than other requests.
“It shouldn’t cost two months’ rent for an activist to see what their government is doing,” said Alan Kessler, an attorney from ACLU of Oregon representing the Peacekeepers.
In January, Michael Satcher, a member of the Central Oregon Peacekeepers, requested city records pertaining to events at Pilot Butte Neighborhood Park on Oct. 3, where Trump supporters and Black Lives Matter activists clashed, according to court documents. Satcher also requested any records that speak to the general relationship between the Bend Police Department and groups that antagonize social justice advocates, according to the ACLU.
The city sought $3,600 from Satcher and the Peacekeepers to pay for the request, according to the ACLU. The city argues the fee is reasonable because the request was broad and took about 65 hours of staff time.
Satcher and the Peacekeepers asked for a public interest fee waiver. The city instead offered to reduce the fee by 25% and asked the racial justice group to narrow its request.
In February, Satcher filed an appeal with Deschutes County District Attorney John Hummel, who issued a decision that found the city’s fee decision was unreasonable, according to court documents.
In March, the city filed a lawsuit against Satcher and the Peacekeepers, asking a judge to find that offering a 25% reduction in fees was reasonable. If the city wins, the Peacekeepers may have to pay roughly $3,600 to the city. ACLU’s counterclaim seeks the city pay its legal costs.
“We are just seeking the truth, and the city is coming after us for it,” Luke Richter, founder of the Peacekeepers, wrote in a press release from the ACLU. “We can’t fix our broken policing system if those in charge are willing to break the law and punish the truth seekers in order to hide its actions.”
Kessler said this case highlights the larger issue of governments not providing adequate access to public records to everyone — not just organizations or lawyers with money and resources.
“In order to speak intelligently and make changes in democracy, the public needs to have information ... they need to have access to good information about what the government is doing,” Kessler said Thursday.
The city is seeking what is called a declaratory judgment action — which in this case, means the city is asking the court to clarify what the law says when it comes to public records, said Mary Winters, the city’s attorney. Amid the legal battle, the city has continued to release records to the group.
The city believes Hummel created a new standard for this and future fee-waiver requests that is contrary to state law, Winters said. The concern is setting a precedent of waiving fees for other large requests.
“Because we process requests in a non-discriminatory manner, a new standard for fee waiver requests could mean City staff have to perform free work for other groups or individuals with very different political or social views from the Peacekeepers,” Winters wrote in an email. “The issue of the standard is important enough to take to court and get a clear answer.”
But Kessler, one of the attorneys representing the Peacekeepers, said the solution to the issue of the city not having enough resources to process this request is not to put the burden upon the person requesting the documents. The solution is for the city to adequately budget enough staff and money to process requests.
Currently, the city only budgets two hours of time to answer public records requests, according to court documents.
“If the city weren’t able to process all of its wastewater and sewage, it would fix that problem...it’s a government function,” he said. “In the same way, archiving and making available public records is a government function.”
The city’s request for the group to narrow the scope of its request is also problematic, given that the requestors of public records usually are not well funded enough to fight legal battles in court or pay large fees. It is also hard to know whether a city’s request for a narrower search is specifically created to limit what someone can see, Kessler said.
“There is a huge power imbalance,” Kessler said.
Kessler said the city claiming it acted non discriminatorily is also questionable, arguing that the city at the same time it was charging the Peacekeepers $71.06 per hour to review documents charged only $30 per hour to someone else who submitted a public records request days before.
Winters said the city did not double the rate because who was requesting the records, and that the two requests are not comparable.
The first request was charged under one section of the fee resolution, which charges a $30 flat fee for simple requests that are estimated to take an hour or less of time.
Satcher’s request was charged under a different section of the city’s fee resolution reserved for more time consuming requests, and charges requestors the actual cost of service and is billed by an hourly rate.
“We don’t practice viewpoint or any other kind of discrimination. We haven’t, at least in recent memory, had any requestor refuse to work with us on focusing a request, so we haven’t had to charge this kind of fee before,” Winters wrote in an email. “This issue is not about (the) content of records, but is a relatively straightforward and honest disagreement on the reasonableness of fees and whether the City has discretion to charge fees for a broad and expansive request in this case.”