Cities, counties: Don't make us pay for records delays
SALEM — Oregon's local governments have misgivings about a proposal that could lead to fines for cities, counties, special districts, school districts and state agencies that don't respond to requests for public documents in a timely manner.
Lobbyists for the League of Oregon Cities, the Association of Oregon Counties and the Special Districts Association of Oregon told state lawmakers Wednesday, March 13, that their members need more training, not penalties, to comply with state law that requires most of them to address public records requests within 15 days or fewer.
"We did major reform to the public records law in 2017. It went into full effect last year. This bill is just too much, too fast. The dust hasn't settled," Rob Bovett of the Association of Oregon Counties said, arguing against state Rep. Karin Power's House Bill 2353.
HB 2353 allows the state attorney general, district attorneys and courts to order public bodies to pay up to $200 to a records requestor if they find that they are ignoring the request or responded with "undue delay." Power, a Milwaukie Democrat, introduced the bill in collaboration with the Society of Professional Journalists' Oregon chapter.
Media representatives, including an SPJ board member, also testified Wednesday before the House Judiciary Committee. They argued that $200 is a reasonable fine for public bodies that willfully refuse to comply with Oregon's public records law — and that without any penalty for breaking the law, some governments, agencies and districts will do so whenever it suits them.
"The citizens bear the cost of enforcing this law," said Nick Budnick, an SPJ board member and investigative reporter for the Portland Tribune. "Agencies bear no consequence if they're found in violation of the law. It's the public that still has to bear the cost. So in essence, because there's no disincentive for agencies to delay, there's every incentive for agencies that feel they can get away with it to delay."
Mark Landauer of the Special Districts Association of Oregon echoed Bovett, making the case that it is too soon after a package of reforms passed in 2017 for public bodies to potentially be penalized for not following the public records law.
"Imposing fines for delays when there is a willful attempt to delay — we have no problem with that," Landauer said. "But I would suggest to you at this point, it is too early. We are still trying to train all our folks with the requirements of a new statute."
Zakir Khan, a Linn-Benton Community College instructor who chairs the Oregon chapter of the Council on American-Islamic Relations, disagreed. "If I can teach my students public speaking and interpersonal communication skills in 10 weeks, why do districts need more than 14 months to properly train staff on how to comply with public records requests?" Khan asked rhetorically.
Using the safety valve
Several changes to the public records law took effect last year. Perhaps the most significant was the introduction of explicit timetables for public bodies to address records requests. The law now requires a request to be acknowledged within five days. No more than 10 days after that, either the request must be fulfilled, the request denied, or a notice made that the request is still being processed and the records will be available by an estimated later date.
However, another subsection of the law gives an out to public bodies that are understaffed or are otherwise ill-equipped to handle a records request without it affecting their ability to provide other services. In those cases, the statutory time limits are waived.
In most cases, it is up to the local district attorney to determine whether a delay in responding to a records request is permissible under the law. Anyone requesting public records has the right to appeal to the district attorney's office to have them order the release of records if the request is not fulfilled within the statutory timeframe.
Power made it clear Wednesday she dislikes what several witnesses referred to as the "escape valve" or "safety valve," a subsection that allows public bodies to duck the state's specified timetables for addressing a records request. However, under HB 2353, that so-called safety valve would remain in place, as Budnick and other witnesses noted.
"The only people that will be affected, in reality, are those that actually need to pay attention to this law that you all passed," Budnick said.
A number of other states allow harsher penalties for failure to comply with public records law than what Power is proposing, she told the committee. For example, in neighboring Washington, public bodies found to be flouting the law can be fined up to $100 per day until they address a records request. "House Bill 2353 before you is $200, sum total … and attorney's fees and costs for having to bring the action for delay," Power said.
State Rep. Mike McLane, R-Powell Butte, said he is concerned about a chilling effect on small special districts and other public entities, in his Central Oregon district and elsewhere, by allowing them to be fined if found in violation of the public records law.
"We are creating more and more disincentives for people to be in public service, to be frank," McLane said, adding, "If we make it harder and harder and harder for people to serve, we are going to have a crisis of staffing, if you will, in rural areas specifically."
Jeff Nitschke, Clackamas County deputy district attorney, also testified Wednesday. He said the Oregon District Attorneys Association doesn't have a problem with the idea of public bodies that don't follow the law being fined, but district attorneys' offices are wary of being handed responsibility for deciding whether to fine other government entities, particularly without a more clearly defined legal process.
"The major concern that we have is our agencies are being asked to perform something that is far behind the intention of having DA offices be involved in this process," Nitschke said.
HB 2353 is one of several public records reform bills that have been introduced this legislative session. Two other bills put forward by a state advisory council on public records reform also had hearings March 13. Those bills would make the advisory council a permanent body and require state agencies to produce an annual report on the records requests they have received and the fees they have required. No opposition to those bills was expressed at the March 13 committee meeting.