The City of Portland lost a lawsuit the other day. It wasn’t a big one, but for those who believe the state’s public records law really does give the public access to government records, it was important. Multnomah County Circuit Court Judge Shelley D. Russell ruled that fees the city charged to fill a records request were too high. She also awarded Alan Kessler his attorney’s fees for his trouble.
Kessler is a Portland lawyer who took the city to court after a city official estimated the cost of filling the request at more than $300 — what the official believed was the “worst case” — highest — cost of preparing the materials Kessler wanted.
Under Oregon law the city had the right to charge “fees reasonably calculated to reimburse the public body for the public body’s actual cost ….” But, as the judge noted in her ruling, it’s the city’s job to show that the fees were reasonable, and, in fact, it had never studied the issue.
The bill to Kessler came in two parts, the second arriving after the city decided the first estimate was too low. The difference came because officials thought it would take longer to gather the records than they originally assumed it would and adjusted the bill accordingly. Unfortunately for the city, the request was filled more quickly than officials thought it would be.
Also unfortunately, the city doesn’t have a plan in place to refund records request money when the actual cost is lower than what was collected in advance. Both the city’s method of determining fees (worst case scenario) and its inability to issue a refund are unreasonable, the judge ruled.
High fees are, as former Public Records Advocate Ginger McCall wrote in her final report to the state’s Public Records Advisory Council earlier this year, perhaps the biggest barrier the public faces when it requests records it’s legally entitled to.
Judge Russell understands that. To be legal, “reasonable” fees for records in Oregon must be based in reality.