Despite a legislative session marked by reforms to Oregon's public records law, a troubling trend is emerging among Portland's city agencies. They are in effect censoring local media by refusing to comply with the spirit of the public records law.
Legislators passed the law in 1973. Their goal was transparency. "The public is entitled to know how the public's business is conducted," says the Oregon Attorney General's Public Records and Meetings Manual.
But when handling requests for public documents—already paid for by taxpayers—several city agencies engage in price gouging as a deliberate delay tactic.
On Aug. 30, for example, WW requested emails that would shed light on the city of Portland's response to street protests. The protests preoccupied the city this summer: They regularly degenerated into politically charged brawls and damaged property. Portland police were criticized for their tactics, which included firing pepper balls and rubber bullets into crowds and pepper-spraying protesters.
Mayor Ted Wheeler's office asked for $3,189 for a set of emails between six staffers discussing the protests.
The public records law permits agencies to charge requesters the cost of producing records but also allows for fee waivers if "making the record available primarily benefits the general public."
Wheeler's office acknowledged a clear public interest in producing the documents.
"The city agrees its constituents deserve the fullest picture relating to the protests," Wheeler's office responded to a petition for a fee waiver. "Public officials' policy decisions are of public interest due to the use of city resources and safety, transparency, and First Amendment concerns."
But the mayor's office did not agree to the fee waiver. Instead, it offered WW a 25 percent discount.
In other words, it determined that the public had an interest in seeing the records in the newspaper only if the paper first paid $2,287. That's a steep price for a small newspaper, and WW hasn't paid it.
Some transparency advocates believe high fees are intended to keep the public in the dark.
"It's apparent to me and to others that doing that is intended to discourage people from going after public records," says Judson Randall, co-founder of public-records nonprofit Open Oregon. "It's simply a technique to keep the records from being released. It's a crummy technique, to say the least."
The mayor's office defends its practices.
"We believe transparency is an essential element of good governance, and make every effort to achieve that value under our public records laws," says Michael Cox, spokesman for Wheeler's office. "Collecting and reviewing records can be a time-consuming, and therefore costly, process."
It's not just the mayor's office. In late 2016, the Portland Police Bureau asked Oregonian reporter Carli Brosseau to pay $1,170 for just 39 pages of public records related to a database of alleged gang members.
The bureau initially denied her request for a fee waiver, but Brosseau appealed to the Multnomah County district attorney, who considers appeals when a city or county agency denies a records request or fee waiver. The DA cannot, however, make a ruling on whether a cost estimate is reasonable or not.
The DA noted that "where fees in excess of a thousand dollars have been found reasonable, they usually involve requests for thousands or tens of thousands of pages of records." He ordered the Police Bureau to reconsider, but did not say whether the bureau had to waive or reduce the fee.
Those 39 pages would reveal details of how police officers justified designating suspects in the agency's controversial gang database. As Brosseau recently detailed on Twitter, the bureau eventually gave Brosseau the records nearly one year after her initial request—one day before the city announced it was disposing of the gang list.
When Oregon's public records law first went into effect, it established a presumption of openness—the burden lay with the government agency to demonstrate that a record was exempt from disclosure.
"When I first started as a reporter, it worked as it was intended to work," says Brent Walth, assistant professor at the University of Oregon and former WW news editor. "It was a law of disclosure. It took clear evidence that a record was exempt from disclosure [to justify a denial]."
But over the years, legislators passed hundreds of exemptions, making it more difficult to access records created during the course of government business and funded by taxpayers. In 2015, the Center for Public Integrity gave Oregon an F grade for ease of access to public information—due in part to a lack of timeliness and high costs.
After the 2017 reforms—which set deadlines for response times, established a Sunshine Commission to review exemptions, and created a public records advocate position—it is more difficult to sneak a new exemption through the Legislature. But the reforms didn't tackle the recurring problem of blocking requests by charging exorbitant fees.
"It was a lot of work to accomplish what we did during the attorney general's task force," says state Rep. John Huffman (R-The Dalles), who worked on the Attorney General's Public Records Law Reform Task Force. "Costs and response times definitely came up in the conversations, but it was challenging to come to a reasonable conclusion."
Members of the public lack an avenue to appeal unreasonable fees. The law allows for government agencies to charge the "actual cost" of producing the records. However, it does not offer further guidance on how to calculate that cost or place limits on what government can charge.
"Government can charge for every last paper clip," Walth says, "just to make it difficult for the public to see what the public already owns."