41 Trial Lawyer • Summer 2023 See Public Records p 42 completion, asking you for clarification or providing a fee estimate. If they don’t do any of those things, they’ve probably violated the statute, and you’re entitled to sue. But the giant, gaping hole in these statutory requirements is ORS 192.329(6), which provides that time limitations do not apply at all “if compliance would be impracticable,” and then defines what constitutes “impracticability” extremely broadly: (a) The staff or volunteers necessary to complete a response to the public records request are unavailable; (b)Compliance would demonstrably impede the public body’s ability to perform other necessary services; or (c) Of the volume of public records requests being simultaneously processed by the public body. In that first case that my firm tried back in 2019, the City of Portland successfully used evidence that some of its employees had family emergencies, were overworked or were unavailable to defeat our claim that its records production was untimely. But it’s important to remember — and to make sure that judges remember — that any defense based on ORS 192.329(6) is an affirmative defense that the public entity has to plead in its answer. You’re entitled to discovery on it, the public entity bears the burden of proof, and if they failed to raise it in a timely manner, it’s waived. How much can they charge? As alluded to above, it’s likely that the first thing you’ll receive in response to a public records request is an estimated fee that you’ll need to pay, either in full or in part, before the public body begins processing your request. These fees can be — and often are — astronomical. Off the record, representatives of public entities are quite candid about the purpose that those fees serve. They’re leverage that forces you either to narrow your request on their terms or to incur huge upfront costs that, in a best-case scenario, will come out of your client’s settlement or verdict. This is the stage where I’ve heard most OTLA members simply give up, because it can be cheaper to just file a complaint and subpoena the records you want. But the Public Records Act does give us some tools to push back, and I think it’s time we started doing just that. Under ORS 192.324(4)(a), a public body may only charge fees that are “reasonably calculated to reimburse the public body for the public body’s actual cost of making public records available * * * to meet the request.” And the public body bears the burden of showing “that [its] fees are reasonably related to its actual costs.” Davis v. Walker, 108 Or App 128, 132 (1991) (citing 39 Op. Att’y Gen. 721, 725-26 (Or. 1979)). The current controlling case defining what “reasonably related to actual costs” means is In Defense of Animals v. OHSU, 199 Or App 160, 185 (2005), where the Court of Appeals ruled that public entities cannot use highly paid, overqualified staff to perform routine clerical work associated with responding to a public records request: On de novo review of the described evidence, we cannot conclude that OHSU’s assessed fee * * * was “reasonably calculated” to reimburse it for its actual costs of providing the records * * *. Specifically, where the information that * * * is exempt from disclosure consists only of the names of companies, experimental medications, and staff, we do not understand why it is necessary for OHSU to use professional staff, such as veterinarians, to redact that information. Even though OHSU’s representatives testified that they had no other staff available to do the kind of work described in
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