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Multnomah County Rod Underhill's decision may set a new monthlong timeline for responses, given the school district's low staffing levels.

TRIBUNE FILE PHOTO - Multnomah County District Attorney Rod UnderhillThe Multnomah County District Attorney issued an opinion Monday, Oct. 24, that Portland Public Schools has been at least partially out of compliance with Oregon Public Records Law.

The order signed by District Attorney Rod Underhill rules on four appeals brought by the public and a reporter from Willamette Week, concluding that in two cases the district did not fulfill its obligation.

The decision comes during a flurry of public records requests and appeals regarding the agency’s responsiveness in the wake of discoveries of lead in school water. It also comes at a time when the school district is operating on a skeleton crew in its administration due to a number of controversies, including lead, rocking the district in the last year.

Underhill appeared to soften his decision based on the severe shortage of management staff in the school district.

The district attorney found that the district has 6,000 employees but only two employees designated to handle public records requests — in addition to a number of other duties. In the last three months, the district says it has received 102 public records requests. Eight of those have been appealed.

“To receive this many petitions as to a single agency in such a short time is, to say the least, remarkable,” Underhill wrote.

In Oregon, if a requester is not satisfied with a local government’s response to an open records request, they can appeal to their county’s district attorney. For a state agency, they can appeal to the Oregon Attorney General. There are no deadlines in state law for a response to a public records requests, but previous attorneys general opinions have established a 10-business-day rule of thumb. Delays beyond that can be seen as a “constructive denial,” or a ruling that the agency is essentially denying the request by not responding.

Underhill determined that had happened to Rachel Monahan, a reporter at Willamette Week, who had requested documents into an investigation of Pat Strickland, a boys basketball coach, in May but did not receive anything. He also determined that parent activist Kim Sordyl’s Sept. 8 request for resumes of six employees should be handled promptly. The other two petitions were denied for now, given that they were made more recently.

“We accept that with its current staff assigned to handle public records matters PPS cannot respond to these requests more rapidly. However, that shortfall is the result of policy decisions at PPS and we decline to give them the benefit of those decisions in assessing the reasonableness of their response,” Underhill writes.

Underhill compared the current situation at PPS to a 2014 decision from the Oregon Attorney General regarding failed health insurance website Cover Oregon’s lack of response to public records requests. In that decision, Attorney General Ellen Rosenblum agreed that a delay of less than a month was not a de facto denial of the request. That was in large part because Cover Oregon committed to work to beef up its public records staff to handle the backlog.

“But, unlike Cover Oregon, PPS has presented no timelines or firm commitments for action,” he says.

One of the final acts of Superintendent Carole Smith before she abruptly resigned in July was to send a memo to the school board responding to concerns raised by an investigation into the lead-in-water controversy. Smith suggested the district hire a director-level public records custodian and invest in software that would make the retrieval of public records faster and cheaper.

Interim Superintendent Bob McKean did not directly respond to questions of whether the district intends to implement these suggestions or any other changes. The district communications department issued the following statement.

"The DA has provided helpful guidance as we work with the requestors to fulfill their requests — and we remain committed to doing so within the timeline set forth in this opinion, and for the others that remain pending. We recognize that our current structure and staffing levels are not adequate to carry out the function of responding to public records requests in the timely manner we want to and addressing that internal operational function is among the priorities of the Interim Superintendent as he looks at other operational restructuring and efficiencies."

Underhill also cited a 1998 decision in which Multnomah’s DA said the Parkrose School District could have up to 30 days, with an additional 30 days allowed by request, to respond. He says that given such unusual staffing shortages at the district, a similar timeline could apply to PPS, though the office “would hope and expect that responses to routine public records requests could be made within the 10 days suggested by the Attorney General....”

Text messages still on hold

In related news, Portland Public Schools has still not released text messages from board members requested on Sept. 12.

The original request was made by 20 people, including several media outlets. Emails that were requested at the same time were released Oct. 11, which showed in part a dispute between board vice-chair Amy Kohnstamm and Lincoln High School Principal Peyton Chapman over the Sept. 7 walkout over the delay of a school bond measure.

Interim General Counsel Stephanie Harper said in a cover letter to requestors that she would need more justification of the public interest to decide whether the request merited a fee waiver.

“We have not yet taken steps to process the request for text messages from the three Board members identified relating to the student protest, nor has PPS apprised the Board members of that particular request,” Harper wrote, adding: “That request is not denied, however, it is not clear to me how the text messages of only three board members related to the student protest is related to the public interest.”

Under Oregon Public Records Law, governments can charge “reasonable” fees to recover “actual costs” of retrieving documents. However, these terms are up to the government to interpret and there are no limits on the amount that they can charge in state statute. If a public agency determines the “public interest” is served by the release of documents, they can waive all or part of the fee. Records are often requested by commercial interests in addition to media and the general public.

Jack Orchard, an attorney for the Oregon Newspaper Publishers Association of which Portland Tribune is a member, says there is no "checklist" for what constitutes the public interest. But he says a request involving a school bond and the protest of hundreds of students — matters of significant public interest, public finance and where the school board and administration stands — "seems to me it tests out awfully high on the public interest meter.”

PPS has previously quoted a fee of $1,175 per cell phone for a forensics firm to download all data, which would then be organized and redacted as needed.

An Oct. 14 decision from the Multnomah County District Attorney’s Office says that the county doesn’t have jurisdiction over records held by elected officials and cannot order their release. A state court would have to make that determination.

Shasta Kearns Moore
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EDIT: This story has been updated to add a response from PPS. This story was also corrected to reflect that Willamette Week did not receive a response on their May request.

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