42 Trial Lawyer • Summer 2023 Public Records Continued from p 41 the case, the court made it very clear this was a solvable problem. In the court’s view, OHSU should have hired “additional, perhaps temporary, staff” who could have billed at a lower rate “for the specific purpose of responding to plaintiff’s public records request.” Id. at 186. At least to me, the lesson from In Defense of Animals is clear. A fee that’s “reasonably calculated” to reimburse a public body’s “actual costs” is a fee that’s based on the billing rate of the lowestpaid person capable of doing the work, whether that’s an attorney, department head, middle manager or clerical staff. But public entities read the case much more narrowly. According to them, In Defense of Animals simply draws a line between “professional” and “non-professional” staff and nothing more. Absent any legislative action to clarify the statute — and after spending a considerable amount of time working on this issue during the 2023 session, I feel comfortable saying that’s unlikely — this is an area of law that’s ripe for a test case. So the next time a public entity gives you an outrageous fee estimate, ask for an explanation. See if they’ll provide you with anything that provides some insight into the billing rates for the responding employees and the anticipated hours the response will take. If they won’t, you might just have a new case on your hands. What records do they have to give me? The fundamental tenet of Oregon public records law is that “disclosure is the rule.” Guard Publi’g Co. v. Lane Cnty. Sch. Dist. No. 4J, 310 Or 32, 37 (1990). Accordingly, even if a public body has reasons not to produce a record, “it must disclose the record unless a statutory exemption applies.” “Att’y Gen. Pub. Records & Meetings Manual,” 30 (2019), https://www.doj.state.or.us/wpcontent/uploads/2019/07/public_records_ and_meetings_manual.pdf. ORS 192.355 provides a list of 44 specific exemptions, and ORS 192.345 details an additional 42 types of records that are conditionally exempt from disclosure. However, if an agency withholds even a portion of a record from disclosure, “it must notify the requester and cite the applicable exemption(s)” to “provide the requester with the information necessary to decide whether to seek review of the denial.” Id. at 14, 30. In other words, if part of a document is responsive to a public records request and part of it isn’t, the entire document needs to be disclosed, with any exempt material redacted and the specific exemption cited in a manner similar to a privilege log. At least at state agencies, there has been some confusion between material that is exempt from disclosure and material that is nonresponsive to a request. This was at the heart of the case my firm tried against ODOT last year. After receiving our client’s public records request, ODOT identified a document containing responsive material. However, that document also contained some sensitive — though not exempt — material that was arguably outside the scope of our client’s request. But instead of producing the entire document, as required by statute, ODOT simply deleted the nonresponsive material from the version of the document they provided to our client. On the stand at trial, ODOT’s representatives stated very clearly they did that on advice from their attorneys at the Department of Justice. At least for me, Charley, our client, and our judge, that was incredibly concerning, and indicated that this practice might not be simply confined to ODOT. The injunction that we won specifically requires ODOT to preserve iterative documents in the form they were in on the day they receive a public records request for them. I don’t think other judges would have any difficulty applying it to other state agencies. Our rights to records For all its flaws — and there are many — the Oregon Public Records Act really does provide us with some great tools to exercise our right to inspect the public records we need. Indeed, on the rare occasions when they’ve had the opportunity, courts have been enthusiastic about enforcing the Act’s provisions. In addition to my own personal experiences, there are dozens of quotes like these scattered throughout the relevant caselaw: • “The guiding principle in Oregon is to protect the public’s right to inspect public records.” Kluge v. Oregon State
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