A Multnomah County judge has ruled that the City of Portland's current method for calculating the cost of a public records search is "excessive" and "not reasonable."
In a Monday ruling, Circuit Court Judge Shelly Russell ordered the city to stop overcharging members of the public for routine requests for city emails or documents. Under state law, any member of the public can request these documents, and the city is obligated to turn them over in a timely fashion.
Her findings stem from a civil lawsuit filed by affordable housing advocate Alan Kessler in September 2018. Kessler had requested records of emails involving Wendy Chung, a member of the city's Historic Landmarks Commission whom Kessler suspected was wielding her power unethically.
The city initially denied Kessler's request, citing formatting issues, but his appeal to the Multnomah County District Attorney was upheld. In response, the city informed Kessler that his request would cost a steep $205.61. So, he sued.
Public institutions are allowed to pre-charge members of the public who request records with a "reasonably calculated" fee to pay for staff time spent retrieving the documents.
According to court documents, the City of Portland estimates public record request costs by increasing an employee's hourly rate by 39 percent, and multiplying that by the hours that staffer worked on a specific request. In her ruling, Russell finds that the city overcharged Kessler for the recorded staff time spent on his request and unnecessarily assigned overqualified (and higher paid) staff to work his low-level request, resulting in a higher price tag.
"Based on the evidence presented by the city, the court finds the city did not meet its burden to show that the fees charged to plaintiff were reasonably calculated," Russell writes. She estimates that Kessler was overcharged by at least $25.
But this is more than just a small, one-time miscalculation.
Russell points to testimony by city data analyst Paul Rothi who said that the city's records division routinely gives people a fee estimate based on a "worst case [scenario]" calculation—or, the highest conceivable price tag for the specific request. According to Russell, Rothi also confirmed that the city "currently has no mechanism" for refunding people who overpay for labor that ends up being less costly than initially estimated.
Russell's ruling orders the city to stop charging people excessive fees for routine records requests—and to stop assigning high-salaried staffers to work on them.
In an interview with the Mercury, Kessler said this lawsuit was never just about getting his small fees reimbursed.
"Being able to really dig in and understand why the city was charging so much money and how they were justifying it, that was my dream," Kessler says. "The fact that the court has agreed with my assessment... I'm thrilled."
Kessler expects the injunction on "excessive" costs will add a needed layer of oversight to the city's current records system, at least for the short-term.
It's one of several recent changes to the city's record-sharing system. The city pledged to improve its public record system earlier this year, with Mayor Ted Wheeler using budget funds to expand the Portland Police Bureau's records program and axing records fees for crime victims. In 2018, Portland collected a total of $767,659 in fees associated with records requests. Sarah Iannarone, an urban policy consultant running for Wheeler's seat in 2020, has proposed a policy that would stick a $20 flat fee on email search that captures fewer than 100 email documents.
"Hopefully," Kessler says, "this ruling is just the start."
