Lawsuit Against City of Portland Challenges the High Cost of Public Records

Housing activist Alan Kessler challenged the city's $150 minimum cost for an email search in a lawsuit that seeks records on a Portland Historic Landmarks Commissioner.

Gun control protesters at Portland City Hall. (Elise Herron)

In a lawsuit filed yesterday, a housing activist and attorney is challenging the high cost of extracting public records from the city of Portland.

Alan Kessler formally requested records related to the emails for Wendy Chung, a member of the Historic Landmarks Commission. At issue for Kessler is whether it was appropriate for Chung to vote on the size and shape of an affordable housing project that is near her home.  (The project was ultimately approved, The Oregonian reported yesterday, and Chung was not at the meeting, so did not vote.)

The Oregon Government Ethics Commission found that Chung had met the ethics requirement by disclosing of a possible conflict. But the fight over whether the city is handling public records may be more significant.

Kessler appealed to the Multnomah County district attorney to get Chung's emails from the city, but after after an order from the district attorney to provide the records, the city nevertheless missed a deadline related to providing the emails.

Kessler then filed suit.

The most significant part of the lawsuit may be his allegation that the city is setting a $150 minimum charge for any request that involves an email search.

The city, in Kessler's telling, could lower the charge to actually reflect the amount of time it takes to conduct such a search. Or they could make available the "metadata" information on emails—including sender, recipient and date of the email—that would require a less extensive review by city officials before they were released as part of a records request. Kessler had requested the metadata and the city said it would have to produce that information.

"Oregon public records law is intended to make the government's business accessible," says Kessler. "I have run into a $150 tax on any email search I try to do at the city. That tax probably isn't appropriate. If we can get that tax out of the way, it would be much easier to investigate the city's business."

WW reported this year that Portland City Hall collected more than $800,000 in fiscal year 2018 by charging for records, and is on pace to collect more than $1 million this year. City attorneys say those charges are needed to pay staff to search the records.

City attorney Jenifer Johnston did not immediately respond to a request for comment.

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