IN THE CIRCUIT COURT OF THE STATE OF OREGON

COUNTY OF MULTNOMAH
ALAN LLOYD KESSLER,
Plaintiff, CASE NO. 18CV43134
vs.
OPINION AND ORDER

CITY OF PORTLAND, an Oregon
Municipal corporation,

 

Defendant.

 

THIS MATTER came before the Court from Nov. 4, 2019, for trial to the bench. Plaintiff
appeared by and through his attorneys Charlie Gee. Defendant appeared by and through its
attorney Karen Moynahan. The Honorable Shelley D. Russell presided.

The Court, having reviewed the memoranda, the cited case law, and heard the oral
arguments of the parties, makes the following ?ndings:

FINDINGS OF FACT

1. On August 7, 2018, plaintiff submitted a public records request to the City seeking the
production of the ?metadata? contained in emails sent or received by four speci?ed email
accounts. Plaintiff provided the City with a detailed de?nition of the ?metadata? he sought.

2. On August 7, 2018, the City acknowledged plaintiff?s public records request. The City also
acknowledged the request on August 10, 2018 and stated that it was preparing an estimate of
the time and fees necessary to respond to the request. Ex. 10], pp. 21-22.

3. On August 14, 2018, Senior Deputy City Attorney Jenifer Johnston informed plaintiff that

the City was unable to respond to his request because the City did not maintain the

information requested in the format requested and the City was not required to create
documents in response to a public records request. BX. 101, p. 19.

On August 16, 2018, Ms. Johnston and plaintiff had a telephone conversation discussing
how the records might be produced. Ms. Johnston memorialized this conversation on that
same date. Ultimately, Ms. Johnston denied the request because the City could not produce
the records in the format requested. Ms. Johnston instructed plaintiff to issue a new request
for the emails in their native format. Ex. 101, p. 16.

On August 16, 2018, plaintiff appealed the denial to the Multnomah County District
Attorney.

On August 28, 2018, the District Attorney granted plaintiff? appeal in part, noting that
public records laws require the public body to provide records ?in the form in which the
custodian maintains the record,? if records are not available in the form requested. ORS
The District Attorney ordered the City to ?provide petitioner with. . .records
responsive to his request, subject to payment of fees, if any, not to exceed the city?s actual
cost in producing the records. city shall continue with, and complete, its response to
petitioner?s request as soon as practical and without unreasonable delay, pursuant to ORS
192.407(3) and ORS 192.329.? (emphasis added). Ex. 102.

On August 28, 2018, Ms. Johnston informed plaintiff that the City was preparing a time and
cost estimate for production of the public records and that the records would be produced
?within a reasonable time." Ex. 101 p. 13. Johnston also expressed concern that the request
could return a large number of emails and plaintiff might wish to narrow his request by date

or speci?c search terms to reduce costs. Plaintiff never responded to ohnston?s inquiry.

8.

10.

11

12.

13.

On August 29, 2018, the City provided plaintiff a cost estimate for records production,
estimating 1.5 hours for an employee of the Bureau of Technology Services to run a
search of the relevant email accounts, and 0.5 hours for ?oversight and recordkeeping?
services. Ex. 3, Ex. 108. The estimate totaled was $205.61.

The City calculates fees for non-sworn staff responding to public records requests by adding
39% to the staff member?s hourly pay rate and multiply that number by the actual time spent
on the request. Portland City Code 5.48.030. The City claims that the 39% rate, which is
supposed to cover employee overhead costs, often does not cover the actual staff and
overhead costs.

Mike Nichols, an lnforrnation Systems Technical Analyst V, conducted the search of relevant
email accounts. The City?s estimate for Nichols wage rate was $78.15 per hour. This rate was
incorrect. The actual wage rate plus 39% should have been $66.09 per hour. Ex. 117.
Nichols? actual time billed for the search was 1.25 hours. BX. 112, 113, 116. Nichols? time

record attributed 1 hour to the search. Ex. 118.

. During the records search. Nichols watches the search progress so that if any errors or

glitches occur he can resolve them. Unless a search indicates that it will be very 
Nichols does not work on other projects while conducting a records search.

Paul Rothi, the City Enterprise Architect Manager, conducted the oversight and record
keeping at a rate of $91.92 per hour for 0.5 hours. Rothi?s records show the time he billed to
plaintiff?s request totaled 37 minutes, rather than 30.

On August 30, 2018, plaintiff paid the cost estimate in full. The City conducted the records

search that same day.

14September 5, 2018, City Public Records Coordinator Donah Baribeau provided plaintiffa
cost estimate for review and screening of the records. On September 11, 2018, Baribeau
provided plaintiff a revised cost estimate due to the volume of emails, adding 2.5 hours of
work to the original estimate or $106.06. Baribeau told plaintiff she would continue working
on the request once the revised estimate was paid. Ex. 101, pp.5-6 Plaintiff paid the revised
estimate that same day. Ex. 101, pp.7-8. No testimony or evidence was offered regarding
Baribeau?s rates other than the estimates.

Baribeau?s work on the request included reviewing the emails and redacting confidential and
privileged information. Baribeau described ?being interrupted a lot? during the review. In
addition, between August 30, 2018, and September 28, 2018, Baribeau suffered an illness,
attended a funeral, covered receptionist duties during that employee?s vacation, and spent six
days covering for the appeals secretary.

On September 24, 2018, 16 business days after the issuance of the District Attorney?s order,
Baribeau informed plaintiff that she hoped to complete the review and produce the records no
later than the end ofthe week. Ex. 10], p. 5.

On September 25, 2018, the plaintiff ?led this lawsuit alleging that the City violated the
Oregon Public Records Act.

On September 28, 2018, the records were produced to plaintiff. Ex. 101, p. 3-4.

Plaintiff paid a total of $311.67 to the City for the records. Ex. 10], p. 1.

The City has never conducted a study on the fees charged by the Bureau of Technical
Services for responding to public records requests. The 39% surcharge bears little
relationship to the City?s actual labor costs and in some circumstances can be lower than the

actual cost. The Bureau spends less than 5% of its time on public records requests.

21.

22.

23

24.

When estimates are prepared for requesters, Rothi prepares a ?worst case? estimate.
Sometimes the work takes less time than Rothi?s estimate, sometimes it takes more time.
Either way, the requester must pay the estimate to receive the records. If the estimate is low,
the City sends a revised estimate with the increased costs, as Baribeau did in this case. The
City does not have a mechanism in place to refund overcharging that results from high
estimates.

Nichols and Rothi are both highly paid employees. The City is currently posting to hire
someone to handle responses to records requests with the aim being to reduce the cost to both

the City and to requesters.

. In this case, it appears that plaintiff was overcharged by approximately $35.00 for the time

Nichols spent on the request and his hourly rate. It also appears that plaintiff was
undercharged for Rothi?s time by approximately $10.72.

On October 26, 2018, plaintiff claimed that the City excluded documents from its production,
giving as an example one email in which the email addresses (the ??metadata?) were not
visible and an attachment mentioned in the email appeared to be missing. In response,
Johnston reviewed all of the documents produced to plaintiff. Johnston noted that the missing
attachment in fact had been provided with the original response, provided the missing
attachment again in February 2019, and informed plaintiff that she could not produce the rest
of the email in native format due to the redactions. These were the only two documents
Johnston determined were ?missing? from the production. Plaintiff was unable to point to
any other indicator of any other missing documents. The City?s production to plaintiff was

complete on September 28, 2018, 20 business days after the issuance of the order.

25. On October 31, 2019, the City proffered a check to plaintiffin the amount 0f$52.00 ?in
satisfaction of the amount the City believes" plaintiff claims to have been overcharged. Ex.
124.

LEGAL DISCUSSION

1. Timing of the City?s Response to Plaintiff?s August 7, 2018 Public Records
Request

ORS Chapter 192 governs the timing and production of public records requests,
beginning for our purposes with ORS 

A public body shall complete its response to a written public records request that is received by an
individual identified in the public body?s procedure as described in ORS 192.324 (Copies or
inspection of public records) as soon as practicabfe and without reasonable delay (emphasis

added).

The public body must acknowledge a public records request within 5 business days of
receipt. ORS 192.324. As soon as reasonably possible but no later than 10 business days from
the date acknowledgement must be made, the public body must either complete its response to
the request or provide a written statement that they are still processing the request along with a
reasonable estimated date of completion based on the information currently available. ORS
192.3296).

If the public body denies the records request, the requester can petition the District
Attorney to review the request and issue a ruling as to whether the public body inappropriately
denied the request. ORS If the District Attorney grants the requester?s petition, the
order my require disclosure of the records within seven days, within any other period that the
district attorney deems appropriate to comply with ORS 192.329. ORS 

Here, the District Attorney granted Plaintiff? petition in part, ordering that the City
provide the requested records in the format in which the City maintained the records, not in the

format requested by Plaintiff. The District Attorney?s order stated that the City must provide the

requested records to the Plaintiff ?as soon as practicable and without unreasonable delay
pursuant to ORS 192.407(3) and ORS 192.329" (emphasis added). Although the District
Attorney could have ordered production of the records Within seven days pursuant to ORS
they did not.

Plaintiff argues that the fact the order tolled the time period during which plaintiff 
petition was under review, that necessarily meant the order at a bare minimum imposed the time
periods of ORS 192.324 and 192.3296). The Court disagrees. ORS 192.4078) speci?cally
allows a district attorney to prescribe any other time period that they conclude is appropriate to
comply with ORS 192.329. In addition, ORS 192.329(1) provides that the public body shall
complete its reSponse to a public records request ?as soon as practicable and without
unreasonable delay. That is what the District Attorney ordered in this case.l

The District Attorney did not specify what constitutes ?as soon as practicable and without
unreasonable delay.? However, an exception to the time periods prescribed in ORS 192.324 and
192.329(5) exists and those time periods ?do not apply to a public body if compliance would be
impracticable because:

The staff or volunteers necessary to complete a response to the public records request are
unavailable;
Compliance would demonstrably impede the public body?s ability to perform other necessary
services; or
Ofthe volume of public records requests being simultaneously processed by the public body.?
ORS 

 

Plaintiff also argues that the separate notice to public body provided after the signature line warning the
City that it could be liable for plaintiff?s attorney fees if it did not comply with the order or within seven days
express an intent to appeal the order or actually ?le an appeal of the order, means that the DA ordered the City to
produce documents within seven days of the order. The Court disagrees with plaintiff?s interpretation of the notice.
The notice is not inconsistent with the order to produce the documents as soon as practicable and without
unreasonable delay. The warning requires the City to express thcir intent to object to the order or to ?le their
objections to the order within seven days.

These exceptions apply to the statutory provisions referenced by the District Attorney and the
speci?c language used in their order. As a result, if one of the circumstances listed in ORS
192.329(6) is present and the timing of the production reasonable, then the strict time periods
advocated by plaintiff do not apply.

Here, the City was able to search for and download the records relatively quickly, within
two days ofthe issuance of the order. Once the records went to the public records of?cer
for review, however, the public records of?cer was unavailable for a period of time, was
covering necessary departmental tasks for other unavailable employees for a period of time, and
experienced multiple and extended interruptions in her ability to complete the records review due
to conducting other necessary business of her department. Baribeau provided two cost estimates
to plaintiff during the time between August 30, 2018 and September 24, 2018, and informed
plaintiff that her review was going to take longer than anticipated due to the volume of
documents. Ultimately, Baribeau was able to provide the documents to plaintiff on September
28, 2018.

The Court finds that the provisions of ORS l92.329(6) apply, therefore the City complied
with the District Attorney?s order to produce the documents as soon as practicable and without
unreasonable delay. Further, the Court finds that the District Attorney?s order requiring the City
to produce records in an available format, albeit not the format request by Plaintiff, was not
erroneous.

ll. Fees Charged by the City

public body may establish fees reasonably calculated to reimburse the public body for

the public body?s actual cost of making public records available, including costs for

summarizing, compiling or tailoring the public records, either in organization or media, to meet

the request.? ORS The burden is on the City to show that the fees charged are
reasonably related to the cost of producing the records.

In Davis, 108 Or App at 132?133, the court found that the public body did not meet its
burden because no study had been conducted to determine the actual cost of providing public
records and the public body could not show that the fees set by ordinance were reasonable
calculated to reimburse it for its actual costs. The court came to this conclusion even though the
public body had a fee schedule authorized by ordinance and used by all Bureau divisions.

Here, the City presented testimony and evidence of the hourly rates (including the 39%
mark-up for bene?ts) for two employees involved in responding to plaintiff?s public records
request along with the City?s fee schedule established by City ordinance. The City also presented
testimony that no study had been done relating to the fees charged by the Bureau of Technology
Services, rather the City occasionally brought in consultants to review rates and overhead costs.
Rothi testified that when preparing an estimate for a public records requester, he prepared a
?worst case? estimate. Rothi and Nichols are two highly paid members of the BTS department.
The City presented no evidence of the rates charged for other members of the department who
may have been available to conduct the records search. The City presented no evidence of the
rates charged for Baribeau?s records review.

In an apparent recognition that the City sometimes charges excessive fees, Rothi testified
that requesters like Plaintiff must pay the full ?worst case? estimate before the records are turned
over. Rothi also testi?ed that the City currently has no mechanism for refunding requesters who
overpay when the actual labor is less than estimated, although the City is ?working on? such a

mechanism. In addition, the City is posting for a position within the BTS that would be

responsible for conducting email searches and gathering records responsive to public records
requests with the goal of lowering department costs.

Based on the evidence presented by the City, the Court finds that the City has not met its
burden to show that the fees charged to Plaintiff were reasonably calculated to reimburse the
City for the actual costs of responding to Plaintiff?s request. The Court ?nds that the fees
charged to Plaintiff were excessive by $24.28 based on the actual time spent on the request by
Nichols and Rothi. The Court also ?nds that hourly rates in the amount of $91.92 for Rothi?s
time and $66.09 for Nichols? time is excessive given the nature of the tasks performed by each.

111. Attorney Fees

If the requestor prevails in the suit, they shall be awarded costs and disbursements and
reasonable attorney fees. ORS 192.43 1 (3). If the requestor prevails only in part, the court has the
discretion to award costs, disbursements and reasonable attorney fees, ?or an appropriate portion
thereof.?2 Regardless of the outcome, the requestor shall recover attorney fees and costs if the
public body fails to fully comply with the disclosure order, and fails to either issue a notice of

intention to institute proceedings to contest the order. or actually institute the proceedings within

seven days.
Here, the Court finds that the City failed in part to comply with the District Attorney?s
order by failing to reasonably calculate the fees necessary to reimburse the City for its work

responding to the records request and charging the petitioner excessive fees. Therefore, Plaintiff

 

2 Plaintiff argues pursuant to Davis v. Walker, 108 Or App 128 that ORS 192-431(3) requires public
bodies to comply with a district attorney?s orders to disclose public records within 7 days ofthe date of the order.
Davis provides no guidance in the circumstances of this case where the district attorney ordered the City to disclose
the records as soon as practicable and without unreasonable delay. On its face, the district attorney?s order in this
case did not require disclosure within 7 days.

prevailed only in part and the Court has discretion to award an appropriate portion of Plaintiff 3

reasonable attorney fees, costs and disbursements.

DJ

ORDERS

NOW THEREFORE, it is HEREBY ORDERED that:
The City DID NOT violate the District Attorney?s order to produce the requested records as
soon as practicable and without unreasonable delay.
The City DID NOT violate the District Attorney?s order to produce the requested records in
an available format.
The District Attorney?s order to produce the records in an available format rather than the
requested format WAS NOT erroneous.
The City DID violate the District Attorney?s order in part by charging Plaintiff more than
what was necessary to recover the City?s actual costs of retrieval and production.
The City?s current method for determining fees for routine email and document search,
including providing a ?worst case estimate? IS NOT reasonably calculated to reimburse it for
its actual cost of making the records available and results in overcharging the public records
requester without providing a method to refund of any overcharges.
The City is hereby enjoined from charging excessive fees for routine email and document
searches.
The City must recalculate the time spent responding to Plaintiff?s public records request at
the lowest hourly rate charged by any department personnel who could be responsible for
reSponding to public records requests, plus any overhead factor, and refund Plaintiff the

difference, if any, over and above the $52.00 already refunded to Plaintiff.

8. Because the City violated the District Attorney?s order in part, pursuant to ORS 192.431(3)
Plaintiff is entitled to petition the Court for recovery of his attorney fees and costs incurred in
pursuit of this matter. The Court will determine whether and what portion of fees upon

consideration of Plaintiff?s petition and Defendant?s objections thereto.

DATED this 18th day of November, 2019.

SHELLEY D. RUSSELL
Circuit Court Judge