School districts frequently receive public records requests. These requests are a vital avenue for public accountability, but they come at a cost.
Somebody must find the documents and prepare them for sharing, and a lawyer often needs to make sure they are sharing only appropriate information.
It’s a significant staff time challenge, especially for smaller districts, but Oregon has an expansive and transparent public records law to ensure the public can find out what it needs to know.
ORS 192.001 states: “The interest and concern of citizens in public records recognizes no jurisdictional boundaries and extends to such records wherever they may be found in Oregon.”
The statute has gone through many changes and updates since its 1973 enactment. Senate Bill 1077 seeks to amend the statute to raise the fees for some requesters and lower the fees for others, a change that unfortunately would add to the administrative burden for most school districts.
SB 1077 would allow public bodies, including school districts, to charge up to a 500% fee to commercial requesters. A commercial requester is defined as “a requester that collects large quantities of information for its own commercial use, for sale to other entities or for the benefit of paying customers.”
A school district would not be entitled to the full 500% fee. The bill allows the public body to retain 33% of the amount in excess of the actual processing cost. That money must be used for processing future requests or granting fee waivers, essentially requiring the district to put that money in a “trust” so it can’t be used for anything else. The public body must place the remaining 67% in a newly established “Public Record Fund,” which the attorney general would use for adjudicating appeals.
The bill does not clearly define “commercial requester,” putting the onus on the school district to determine which entities are “commercial requesters.” This will almost certainly increase public records disputes and add attorney time.
Additionally, many “commercial requests” are for easily accessible data and don’t take a lot of time to process. A portion of a 500% fee would not actually offset the cost of processing future requests or granting fee waivers.
A public body already may grant a fee waiver, and extensive case law guides when a fee waiver is appropriate. SB 1077 shifts the fee waiver request to the requester and permits a requester to ask for a fee waiver or fee reduction if it is “in the public interest.”
Six factors determine what is in the public interest, including “whether the requester had a history of directly and meaningfully disseminating information that is in the public record,” “whether waiving or substantially reducing fees would create an articulate (sic) and substantial burden on the custodian,” and “whether a requester presently has the ability to meaningfully disseminate the requested information.”
Requiring a school district to weigh all these factors to determine if a waiver is in the public interest is a tall order, especially for small districts where the person processing these public records requests often wears multiple hats.
Processing public records requests can take hours and days of a staff person’s time, whether it’s in the public interest or not. Without additional funding from the state, a prohibition on charging for certain (though not clearly defined) requests would add another strain on already tight district budgets.
SB 1077 is scheduled for a public hearing Wednesday, June 4, in the Senate Rules Committee.
Transparency is incredibly important for any government entity, and there are ways to ensure it. But adding an opaque increased burden on public bodies, especially our school districts, is not helpful.
– Adrienne Anderson
Government Relations Counsel
