Portland records lawsuit

The Portland City Council may well vote Friday to appeal a 2019 ruling in a public records court case the city lost. Let’s hope reason prevails and the council moves on to other matters without a vote.

The circuit court opinion involved a records request by a Portland lawyer. For a variety of reasons it took several months to fulfill the request, and the city charged the lawyer $311.67 for its cost in gathering the information he sought. The lawyer, Alan Kessler, sued, arguing the city overcharged him.

He won, mostly. The court found the city violated a district attorney’s order to produce the the records and charge Kissler the actual cost of producing them, though it did not violate the same order to produce the records as quickly as possible.

Circuit Court Judge Shelley D. Russell found that the city’s method for calculating fees, including providing a “worst case” cost estimate that must be paid to get records, “IS NOT reasonably calculated to reimburse it for its actual cost of making records available” …. That led to overcharging and the city had no method for refunding money when overcharging occurred.

There was more. The court said the city must calculate its fees based on the lowest hourly rate and refund any overcharges, if there were any. It prohibited the city from charging what it called excessive fees for routine email and document searches. Finally, the judge said, Kissler was entitled to ask for attorney’s fees and costs — $120,000, according to The Oregonian — because it violated some of the district attorney’s order.

City officials balk at the notion of having to limit their use of some of the highest paid people in an office to fill what the judge called routine requests. Yet that’s a practice that is all too common in Oregon, said former state Public Records Advocate Ginger McCall in October 2019. She called them a “clear barrier to transparency” and said correcting the problem is the most pressing step to improve public access to public information.

The Portland City Council should acknowledge the truth in McCall’s view and the judge’s ruling and let the matter drop.

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