Our view: Oregon public records laws create a perverse incentive for high fees

Published 5:00 am Thursday, December 30, 2021

What’s broken about Oregon’s public records laws remains broken. And every year that goes by with it broken, the public’s ability to know what its government is doing is diminished.

Oregon’s public records laws are well-intentioned. They are also flawed.

The structure of the law creates a perverse incentive for high fees. Public bodies are not given incentives to make public documents available at low cost. The laws give them the power to charge reasonable fees to recoup their costs. That gives them no incentive to keep those costs as low as possible. And any fee — no matter how small it may seem — can be like a wall blocking the public from information. While there are ways for the public to appeal decisions to release documents, it’s nowhere near as simple to get fees reduced.

The problem is easier to understand with examples. This first one we heard from Rachel Alexander, the managing editor of the Salem Reporter. She also chairs the Oregon Freedom of Information Committee of the Society of Professional Journalists.

She recently spoke with Oregon’s Public Record Advisory Council.

Remember earlier this year when then-Oregon State University president F. King Alexander resigned? There were questions about his role in the sexual misconduct investigations at Louisiana State University. A reporter for the Albany Democrat-Herald filed a narrow public records request asking for email among Alexander and several members of OSU’s board of trustees. It was emails for a period of about a week. OSU said it would require an IT expert to search for emails and came back with a $250 bill.

A $250 fee might seem like nothing. It’s a barrier. As you may have heard, most newspapers are struggling for money these days. Many smaller newspapers have zero budgets for public record requests. The newspaper was only able to get the records after Oregon’s Society for Professional Journalists awarded it a grant to do so. The emails showed the work some members of the board of trustees were doing behind the scenes to help Alexander craft messaging.

If the solution to this fee issue were simple, of course, it would already be fixed. Many government agencies have a culture of transparency and openness. They try to be forthcoming about records, making them available swiftly and at minimal or no cost.

But even for government agencies with that culture, not every public records request is easy to tackle. Sweeping requests may require pouring through hundreds of emails or documents, taking significant staff time. Imagine what that would be like for a small town with few staff.

There are solutions out there. Some states put limits on what can be charged. Some jurisdictions bar charging for time spent researching if a record may be exempt from disclosure. The federal government defines what can be charged for FOIA requests. As Alexander put it, relying on shoestring efforts of journalists to crowdfund public records requests is no solution.

We don’t expect the Legislature will take on this issue in the short 2022 session. At least another year will pass with Oregon’s broken public records laws. It will be another year where the public’s right to know is diminished.