The Portland City Council has agreed to pay nearly $167,000 to settle a 2022 lawsuit that accused the city and Mayor Ted Wheeler of withholding thousands of text messages from a public records request.
Portland Mayor Ted Wheeler as he speaks at a press conference at the Jordan Schnitzer Museum of Art, in Portland, April 2, 2024.
Kristyna Wentz-Graff / OPB
The lawsuit followed an OPB investigation that found Wheeler and other city officials regularly broke city policy by communicating via iMessage on their city-issued iPhones. At the time, the public records software the city used to archive all text messages sent from government phones could not access iMessages. Despite signing a city agreement pledging not to use iMessage, Wheeler and others used the program for years, effectively shielding his communications from the public eye.
The state public records law requires government officials to preserve all written communication created in the course of their work — including text messages and emails — and, in most cases, turn them over to the public when requested.
In July 2020, a computer programmer named Michael Kessler submitted a records request for all text messages sent to and from Wheeler’s phone between July 21 and July 23 of that year. The timing was notable: This included the evening when federal officers used tear gas on a crowd of racial justice protesters in downtown Portland. Wheeler was also in that crowd and used the moment to condemn then-president Donald Trump’s militant response to the city’s demonstrations.
The mayor also sent and received numerous text messages during and immediately after that night.
Kessler’s lawsuit alleged that the city only sent him a portion of those messages, excluding more than 50 iMessages Wheeler sent over those three days. He accused the city of violating the state records law by withholding and possibly destroying the messages. The lawsuit asked the court to declare that Wheeler and the city violated state law and release all previously withheld iMessage records. Kessler also asked for $200 for each wrongly withheld record.
But city attorneys negotiated a different resolution.
The agreement, approved unanimously by the city council, grants $166,893 to Kessler to cover all attorney’s fees and public records fees made to the city. In exchange, the city avoids going to trial and is absolved of any wrongdoing.
It’s not an ideal outcome for Kessler. Kessler is represented by his brother, Portland lawyer Alan Kessler. Alan told OPB that he and his brother would have preferred to take this case to court, where the city could have been found responsible for the alleged violations.
“It’s a little unfortunate that it just ended with money,” he said. “We wanted accountability. We just have the mayor and city weaseling their way out of it.”
Council members approved the agreement Wednesday without any discussion. The ordinance notes that “This settlement is in furtherance of the City’s goals of transparency and accessibility of public records, and compliance with public records requests.”