Oregon DOJ overturns public records fee rule
The Oregon Department of Justice has overturned a 14-year-old rule requiring some state agencies to charge for public records.
The ruling was sparked by the Statesman Journal's appeal of a decision by the Public Employees Retirement System to charge full price for release of public records. PERS asked for $112 to produce the 2015 travel receipts of the retirement system's director and board members. When the newspaper's request to waive those fees was denied, it appealed to the DOJ.
Deputy Attorney General Frederick Boss penned Monday's ruling, saying that a 2002 department opinion allowing PERS to always charge full price for public records is no longer valid. Boss ordered PERS to reconsider the Statesman Journal's fee waiver request.
Judson Randall, former president and co-founder of freedom of information group Open Oregon, said the ruling is a small but notable step towards government transparency. He called high fees imposed by public bodies to release public records "a major problem with transparency."
"I think the ruling, depending on how it plays out, is a really good thing," Randall said. "It's a wee step in the right direction."
Attorney General Ellen Rosenblum, who heads the state DOJ, commented on the ruling via an email statement. "Complying with laws sometimes costs money. This decision requires public bodies to treat their obligations under the Public Records Law the same as their obligations under other general laws," Rosenblum said.
PERS officials were not immediately available to comment.
In the ruling, Boss wrote that public bodies don't have unlimited discretion in regards to charging for public records, and PERS may be "legally required" to waive fees in some circumstances.
PERS argued that it is legally barred from waiving fees charged for producing public records because pension funds can only be used to the benefit of PERS members.
But Boss wrote that PERS already uses its funds for activities that don't directly benefit pension members — and that releasing public records should be no exception.
"It has never been suggested that PERS cannot pay appropriate overtime, pay for reasonable accommodations for employees and members of the public with disabilities, pay the wages Oregon’s prevailing wage law requires for certain construction projects, or pay expenses associated with collective bargaining," Boss wrote.
"The fee waiver and reduction requirement of the Oregon Public Records Law appears to be the only generally applicable law this office has said PERS cannot obey,” he said. "We see no substantive justification for this unique treatment."
What's more, Boss wrote, releasing the pension managers' travel records may actually benefit PERS members. Release of the records could potentially reveal financial impropriety by PERS managers, securing a return of funds greater than the cost to produce the records, he said.
"If it is true that government transparency reduces the likelihood of misconduct in the administration of government affairs, the mere fact that these records are readily available will contribute to securing that administrative benefit for PERS members," Boss wrote.
Why it matters
Oregon is reviewing its public records laws via a task force chaired by Rosenblum, the attorney general. The task force has proposed legislation that would require public bodies to release records in a more timely manner.
One issue largely not taken up by the task force is the 500-some exemptions to the public records law that allow government bodies to keep information secret. Some are noncontroversial, such as exemptions on releasing health records, trade secrets or sensitive law enforcement records.
Other exemptions have drawn criticism from open government advocates and members of the public records task force. For example, exemptions exist to prevent release of documents about companies getting government contracts, medical malpractice complaints and the communications of state legislators.
Rosenblum's task force decided not to propose repealing of any of the exemptions.
Send questions, comments or news tips togfriedman2@statesmanjournal.com or 503-399-6653. Follow on Twitter@GordonRFriedman.
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