PUBLIC RECORDS CASE
POINTS OUT INCONSISTENCIES
While former commissioner Rob Handy might have a lost a battle in the fi ght for better
public records disclosure from Lane County government, he feels that he made some
headway in the war. He said in a press statement that the goal of his suit “was to shine a
light on the arbitrary nature in which Lane County” responds to public records requests,
and with this goal in mind, Handy says the suit was a success.
Coos County Circuit Judge Richard Barron ruled the county did not violate the state
public records law by refusing to turn over documents Handy had requested. The county had
asked for more than $2 million in fees and said Handy’s request was too broad — it asked
for any records or communications relating to Handy and any internal communications
about him over a fi ve-month period — and Handy did not narrow the request, the judge
wrote.
Barron ruled that
the $2 million to
provide all the records
Handy was looking
for was not excessive
and that the county’s
ATTORNEY DAVE BAHR
refusal to waive the
fee was legitimate.
He also pointed to
exchanges between Handy and the county over an emergency meeting and he wrote, “It is
clear to the court that is all this lawsuit is about,” pointing to motive, as opposed to facts
of the case.
Different government bodies handle and store email and internal communications
differently. While Handy says that Lane County told him it would need to have a contractor
paid $70 an hour to fulfi ll the request, an April 2010 public records request from the R-G to
the city of Springfi eld resulted in a reporter being given access to more than 5,000 emails
within 48 hours at no charge.
The Handy case involved a somewhat peculiar legal process in which the county
counsel, Alex Gardner, was also the district attorney who heard appeals on public records
issues; the attorneys making the arguments, Stephen Dingle and Marianne Dugan, were
both involved in the email exchanges introduced to the court as exhibits; and some of
the reporters covering the trial had public records requests and emails also introduced as
exhibits.
Evaluating public records public interest fee waiver requests is a three-step process:
First the government body must determine if there is a legal basis that prohibits the granting
of a fee waiver. Next the agency objectively evaluates the fee waiver request — how will
the public benefi t from the information? Gardner at the Handy trial testifi ed that he did not
feel the public was interested. The question, however, is if it is in the public’s interest, not if
it interests the public. Finally, if an agency does fi nd the request to be in the public interest,
it can still argue it cannot grant the fee waiver because it is time consuming or expensive.
Attorney Dave Bahr recently won a public records case for the Sierra Club against
the Port of Coos Bay, which was charging $20,000 for records in regard to a coal export
terminal. Bahr says, “Judge Barron seems to be establishing a single-factor test, holding
that whenever a public body feels it has budgetary constraints it need not grant a fee waiver,
and that is not supported by prior court decisions.”
In another departure from the norm, Barron writes at the end of his decision letter
that attorney Dingle “may also submit statement for costs and attorney fees pursuant to
defendant’s prayer.” Normally in public records cases, attorney fees are not charged, unless
the case is deemed “frivolous.” — Camilla Mortensen
‘Judge Barron seems to be
establishing a single-factor test’
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eugeneweekly.com • March 21, 2013
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