Portland leaders agree to pay $200,000 after losing effort to keep legal records secret

By OPB staff (OPB)
July 13, 2022 9:52 p.m.

The city has paid out over half a million dollars stemming from public record request denials in the last five years.

On the losing side of a seven-year-legal battle, Portland leaders unanimously agreed Wednesday to pay $200,000 in attorney fees after a doomed bid to avoid turning over decades-old legal documents.

The documents the city officials were forced to turn over deal with an issue that has long been a prickly one for the city: how utility bureaus are supposed to handle ratepayer money.


Mark Bartlett, a retired developer, first requested the three legal opinions and a memo from the city in September 2015. At the time, the city was preparing to disconnect open-air reservoirs in Mount Tabor Park — an area where both the Bureau of Parks and Recreation and the Water Bureau owned land. Bartlett believed the city was inappropriately treating the land as if it only had one owner — instead of being owned by the water bureau, which is funded by ratepayers, and the parks bureau, which gets money from the general fund.

Bartlett asked for old legal opinions and a memo he had seen mentioned in an email, dating back to the 1980s and 1990 respectively, which he believed detailed the rules around keeping assets of rate-payer bureaus distinct from those of general fund bureaus. He believed the documents would make clear that the city was knowingly violating its own rules.

The city denied the request, claiming attorney-client privilege, which gives people the right to keep their communication with their attorney confidential. Bartlett appealed to the Multnomah County district attorney. Rod Underhill, the county’s top prosecutor at the time, sided with him, citing a state law that said — with few exceptions — documents older than 25 years must be disclosed.

But Portland’s election officials made the rare decision to keep fighting, reportedly worried they would receive inferior legal advice if their attorneys knew everything would one day be made public. The city sued Bartlett in 2016, asking a judge to declare that the documents he wanted were indeed covered by attorney-client privilege.

The move concerned some government transparency advocates, as well as the Oregonian’s editorial board, who colorfully admonished the city in two separate editorials for flouting state laws that require “the release of documents when they begin to crumble from old age” and “back when The Cosby Show was all the rage.”


A Multnomah County Circuit Court judge ruled in the city’s favor. But the Oregon Court of Appeals reversed that decision in favor of Bartlett. City leaders took it to the Oregon Supreme Court, which also ruled for Bartlett in April. Justices wrote that they had “no authority to rewrite public records law” and suggested the city take the issue to the state legislature.

According to deputy city attorney Denis Vannier, who presented to City Council on Wednesday, Bartlett’s attorneys said they were going to ask for $405,000 in attorney fees. The city agreed to settle with Bartlett and pay $200,000.

Bartlett said all the money will go to the law firm that worked on his case, Davis Wright Tremaine. Bartlett’s lawyer, John DiLorenzo, won a longstanding lawsuit in 2017 over the misuse of ratepayer dollars. That time, the city agreed to pay $3 million in legal bills to Davis Wright Tremaine.

None of Portland’s five current City Council members were in office when the city initially appealed the district attorney’s decision. The only one who commented on the decision to settle Wednesday was Mayor Ted Wheeler, who offhandedly lamented that the ordeal struck him “as a complete dog.”

Since 2017, the city has paid out at least $559,839 in public records request lawsuits, according to budget documents. It’s happened three times this year alone.

In January, city leaders paid a longtime open records advocate $250,000 in attorney fees after they previously denied his 2017 request for the names and contact information of Portlanders who had reported homeless encampments through the city’s online system. And last month, the council agreed to pay public records advocate Alan Kessler $20,000 in attorney fees related to a police records request.

Bartlett received the documents he’d been seeking a month ago — nearly seven years after he put in the request. He said they contained few surprises.

“It tells the story of how they can not commingle funds between dissimilar bureaus, which they’ve been doing since as long as they can get away with it,” Bartlett said. “They did not want that distinction made.”

But, he said, he is not going to do anything with the records. He has moved to Hawaii and is leaving the four-decade-old documents for future attorneys.

“Now, it’s up to other people. I’m retired,” he said. “They can take it over.”