Some Portland leaders want to tighten Oregon public record law after the city was forced to turn over documents with the contact information of constituents and pay a longtime records advocate $250,000 in attorney fees.
The payout stems from a 2017 record request by Oregon attorney Jeff Merrick. Merrick sought the names and contact information of Portlanders who had used the city’s One Point of Contact System to report homeless encampments to city officials. Merrick said he had wanted to use the information to form a homeless advocacy coalition.
The city denied the request. Merrick sued. After a years-long legal battle that involved multiple rounds of arguments to the Multnomah County District Attorney’s office and an appeal to the Oregon Court of Appeals, Merrick eventually got both the records and, as of Wednesday, a quarter of a million dollars to cover attorney fees. The city ordinance approving the settlement agreement states $114,500 will go to Merrick and $135,500 to his co-counsel with the firm Dunn Carney.
Before approving the agreement Wednesday, council members said the case — and the pricey payout — spoke to the fine line city officials must walk between being transparent with public documents and protecting the privacy of constituents.
Senior City Attorney Denis Vannier made clear that Oregon law currently prioritizes transparency.
In this case, Vannier said, the district attorney ruled that relevant sections of public record law — including exemptions for “information of a personal nature” and “information submitted in confidence” — did not apply. City attorneys said this means people who write to the city council could very well have their personal information turned over if someone requests it.
City attorney Robert Taylor said if city leaders do not want to release personal information of constituents or public employees, they need to push for a change in state law.
“If members of the public or the city council aren’t comfortable with how the law works, our redress really is to go to the legislature and ask them for help because they ultimately write the public records law,” Taylor said. ‘That’s really the remedy.”
Public record advocates in Portland routinely criticize the city attorney’s office for what they allege are unlawful denials and excessive redactions. Senior Deputy City Attorney Jenifer Johnston was forced to withdraw her nomination from the state’s Public Records Advisory Council in November, a group tasked with upholding Oregon’s public records law, after outcry from Open Oregon, the League of Women Voters of Portland, the ACLU, and the Society of Professional Journalists. In their letter, the Society of Professional Journalists cited a “disturbing increase in secrecy” and a legacy of Portland pushing “pro-secrecy legislation in response to rulings that found the city in violation of Oregonians’ record law.”
Merrick said he believed unlawful denials of public records in Portland was a systemic issue.
“The only difference between me and every other citizen is I had the knowledge and the ability to fight it,” Merrick said. “Because I can’t tell you how many people I talked to who put in a public records one — a legitimate one — to the city and they get a denial, and they say what am I going to do, I’m not a lawyer. They just take it.”
Concerns about safety
But in a political era in which doxing and death threats against city employees are not uncommon, both commissioners Mingus Mapps and Jo Ann Hardesty said they believed Oregon’s public records law did not currently go far enough to protect employees and constituents.
“I think we’re going to have to work with the legislature to really change public records law so that we address the political realities that we are operating in,” Hardesty said. “We are not the same people when Oregon public records law was written.”
Hardesty said her office was flooded with public records requests daily, some of which she believed were inappropriate and “not in the public’s interest.” She specifically called out one recent media request related to information for applicants for grant funding.
“Public records requests are being used as a fishing expedition for people who are trying to paint people — especially people of color and women — in ways that are just egregious,” she said.
In response to Merrick’s lawsuit, Deputy Chief Administrative Officer Carmen Merlo said the city now requires public records responders for each bureau to receive mandatory training and involve the city attorney’s office in all large requests.
While Merrick said he was momentarily heartened by these reforms, he logged off the meeting uncertain that his lawsuit made City Hall any more transparent.
“That was my hope that the settlement would encourage the city to do better,” Merrick said. “I was hopeful that maybe this will do something for the city, and then the next breath I’m hearing what we want to do is create more exemptions.”