40 Trial Lawyer • Summer 2023 By Timothy Walsh OTLA Guardian Like most folks who dabble in ex- tremely niche areas of the law, I ended up handling public records cases by accident. My background is almost exclusively in personal injury work, but a few months after I started working for Charley Gee, he asked me to help out on our firm’s one active non-personal injury case — an alleged $50 overcharge on a public records request that he’d taken on for a local government transparency activist in Portland. That tiny little case eventually turned into a daylong bench trial, a substantial attorney fee award and an injunction prohibiting the systematic overcharging of requesters that our litigation uncovered. Because that wasn’t too shabby at all, we decided to take a similar case, this Timothy Walsh time against the Oregon Department of Transportation. Another trial, another injunction, and an even bigger attorney fee award later, and I now feel pretty comfortable advertising myself as a public records attorney in addition to my personal injury practice. I’m the first to admit that public records litigation is an odd little corner of the OTLA world. In one sense, it touches everything. Regardless of your primary area of practice, you’ve probably made a public records request at some point. And I’m willing to bet that, at least once, you’ve been frustrated to madness by a public entity’s failure to respond to a request completely, cost-effectively and in a timely manner. Nevertheless, hardly any botched, ignored or bad faith responses to public records requests end up in litigation. That’s understandable. The Public Records Act is an especially byzantine part of the Oregon Revised Statutes. Attorneys are justifiably reluctant to step out of their primary practice area on an issue that’s ancillary to their cases, at best. But cheap, accessible public records bring tangible benefits both to our clients and to our practices. They decrease costs and help us weed out bad cases pre-litigation. And, as a matter of principle, allowing public entities to continually avoid accountability removes any incentive for the system to change. So, in an effort to make this peculiar area of the law just a little more accessible, here are some entry points for finding the answers to the three most common questions I’ve encountered in my public records cases. When do I get the records? The timelines under which public entities are required to produce public records are generally governed by two statutes. ORS 192.324 imposes a fivebusiness day deadline for public bodies to “acknowledge receipt” of a public records request. ORS 192.329 is considerably more complex: • ORS 192.329(5) gives public bodies 10 business days after the five-business day deadline to either complete the request or provide a written statement with a “reasonable estimated date” that the request will be completed. • But ORS 192.329(3) and (4) put that whole timeline on hold if the entity either asks you to clarify the scope of your request or wants you to pay a fee for the records. If you don’t pay the fee within 60 days of the date you get the public entity’s fee estimate, the request is closed. The bottom line is that within 15 business days of receiving a valid request, a public entity has to, at a minimum, do something to get the ball rolling. Whether that’s giving you an estimated date of Oregon Public Records Common Questions about an Unfamiliar Law
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