What’s broken about Oregon’s public records laws remains broken. And every year that goes by with it broken, the public’s ability to know what its government is doing is diminished.

Oregon’s public records laws are well-intentioned. They also are flawed.

The structure of the law creates a perverse incentive for high fees. Public bodies are not given incentives to make public documents available at low cost. The laws give them the power to charge reasonable fees to recoup their costs. That gives them no incentive to keep those costs as low as possible. And any fee — no matter how small it may seem — can be like a wall blocking the public from information. While there are ways for the public to appeal decisions to release documents, it’s nowhere near as simple to get fees reduced.

The problem is easier to understand with examples. This one we heard from Rachel Alexander, the managing editor of the Salem Reporter. She also chairs the Oregon Freedom of Information Committee of the Society of Professional Journalists.

She recently spoke with Oregon’s Public Records Advisory Council.

Remember earlier this year when F. King Alexander resigned as Oregon State University president? There were questions about his role in the sexual misconduct investigations at Louisiana State University. A reporter for the Albany Democrat-Herald filed a narrow public records request asking for emails among Alexander and several members of OSU’s board of trustees. It was emails for a period of about a week. OSU said it would require an IT expert to search for emails and came back with a $250 bill.

A $250 fee might seem like nothing. But it’s a barrier. As you may have heard, most newspapers are struggling for money these days. Many smaller newspapers have zero budgets for public record requests. The newspaper only was able to get the records after Oregon’s Society for Professional Journalists awarded it a grant to do so. The emails showed the work some members of the board of trustees were doing behind the scenes to help Alexander craft messaging.

Here’s one more example. This one we heard from Ellen Osoinach, an attorney working for the Reporters Committee for Freedom of the Press. It comes thanks to the work of the Eugene Weekly and the Catalyst Journalism Project at the University of Oregon.

Landon Payne came home one night in Eugene in March 2020. After being drug free for about three years, he was high on meth. He believed people were trying to kill him. His wife called the police. He was arrested for a child support warrant. He was restrained and Tased.

When he was brought to the Lane County Jail, deputies had difficulty restraining him. He ended up on the concrete floor. Two deputies put their knees on him to hold him down. “I can’t breathe,” Payne said. His heart stopped just over a minute later. Deputies and emergency medical personnel managed to revive him with 20 minutes of CPR. Payne died two days later.

An incident like that raises a lot of questions. Could it have been handled differently? Did police have other options? Did they have the training to be aware of them? And it’s also important to know exactly what did happen when Payne was arrested and at the jail.

The Eugene Weekly was able to get the video for the sally port, where Payne was brought at the jail. It also wanted to see the body camera videos for the officers involved. The initial public records request in April 2021 for the body worn cameras was denied. The city of Eugene wrote it “does not provide Body Worn Camera video.” The Eugene Weekly appealed that decision to the Lane County District Attorney with the help of attorney Osoinach. The Lane County District Attorney ordered the videos released because of the clear public interest. But the price of one and half hours of body camera video? It was more than $600. The Eugene Weekly and Catalyst paid for that video. Think, though, about that cost. It is a barrier for anyone hoping to learn the truth about how the Eugene police handled a critical incident.

If the solution to this fee issue were simple, of course, it already would be fixed. Many government agencies have a culture of transparency and openness. They try to be forthcoming about records, making them available swiftly and at minimal or no cost.

But even for government agencies with that culture, not every public records request is easy to tackle. Sweeping requests may require poring through hundreds of emails or documents, taking significant staff time. Imagine what that would be like for a small town with few staff.

There are solutions out there. Some states put limits on what can be charged. Some jurisdictions bar charging for time spent researching if a record may be exempt from disclosure. The federal government defines what can be charged for Freedom of Information Act requests. As Alexander put it, relying on shoestring efforts of journalists to crowdfund public records requests is no solution.

We don’t expect the Legislature will take on this issue in the short 2022 session. At least another year will pass with Oregon’s broken public records laws. It will be another year where the public’s right to know is diminished.

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