The Oregon State Capitol
SALEM — Oregon’s departing public records advocate said Wednesday that high fees often create a barrier for requesters seeking public information, and called for more clarity and less discretion for public bodies assessing fees to fill those requests.
In her 11-page final report, issued Wednesday, Ginger McCall said fees are “perhaps the single most pressing issue related to public records requests.”
McCall also said there should be a way for those denied records by elected officials to appeal without the costly step of going to court.
She also wrote that more resources, such as a tracking tool, should be dedicated to handling requests for government records. And she endorsed changes to state law to make the advocate more independent from political influence, saying an independent advocate would be more effective.
Gov. Kate Brown appointed McCall last year to be the state’s first public records advocate, a position created by legislation in 2017.
McCall resigned in early September, pointing to what she said were backchannel attempts to get her to quietly promote the governor’s agenda on a state council considering changes to the state’s public records law.
Oregon public bodies have wide latitude on how they charge fees, allowing for “vastly different fees” to be assessed, McCall wrote in her report, and that discretion is the “root cause of much of the confusion and animosity around fees.”
According to a survey conducted by the state Public Records Advisory Council, there were “vast discrepancies in fee collection across public bodies.” Some collected thousands in fees, while others collected little. Some agencies also charge requestors for the costs of having a government attorney review the documents.
McCall said there should be more recourse for those whose requests for information are denied by elected officials.
Under state law, Oregonians can only appeal elected officials’ decisions on public records to a court.
“Most requesters lack the resources to vindicate their rights in court,” McCall wrote. “This creates a lack of accountability around the decisions of elected officials as any disputes about the disclosure of public records in their possession can only be settled in court, which is an often prohibitively costly and time-consuming undertaking for most requestors.”
She suggested an “intermediate appeal option” pertaining to records of elected officials.
“While independence in state government is a challenge this Advocate is familiar with, it is not impossible to imagine that some kind of separate, independent or simply walled-off office can exist which can provide a reliable review of elected officials’ public records decisions,” McCall wrote.
McCall also stressed that the office of the advocate should be independent.
“The independence of this office is important in order to be able to propose ambitious reforms, engage in meaningful and trusted facilitated dispute resolution, and even offer credible training on public records,” McCall wrote.
Last week, the Public Records Advisory Council voted to propose legislation in 2020 that would ensure the advocate is a direct hire of the council, and can only be removed for cause by the council.
McCall said in her report that the proposed change “minimizes the potential for political interference by any one elected official, since the advocate will be reporting to the entire council.”
Rachel Alexander, vice president of the Oregon Territory Chapter of the Society of Professional Journalists, applauded the report.
“I think Ginger hit the nail on the head with this report,” Alexander said. “The four reforms she outlined square almost perfectly with what we hear from our members and from media outlets across the state.”
She added that McCall demonstrated well how “issues like high fees pose a barrier to requesters both in the media and members of the general public.”
Scott Winkels, a lobbyist for the League of Oregon Cities and a member of the Public Records Advisory Council, was more cautious. He said he hadn’t read the full report, but had read the section on fees.
“The law requires that we can get the cost, recoup the cost of providing the record,” Winkels said. “Nobody should be turning a profit on it. As long as people are charging for the cost of the record, I think that’s an acceptable practice.”
He said he would be open to having a “conversation” about setting up a fee structure intended to discourage vague and overly broad requests, but reiterated Wednesday was the first he’d seen of McCall’s report.
“I haven’t fully digested any of it, but if the (council) wants to take up this conversation, then we should do that,” Winkels said.
Editor’s Note: Les Zaitz, an editor with Oregon Capital Bureau, serves on the Public Records Advisory Council. Rachel Alexander is a reporter with Salem Reporter.
Reporter Claire Withycombe: email@example.com or 971-304-4148.