Court Says Portland, Oregon City Government Can No Longer Screw Public Records Requesters With Excessive Fees

from the gently-reminding-the-public-who's-paying-whose-salary dept

It's a small win for the plaintiff -- probably less than $100 in total -- but it's a bigger win for the residents of Portland, Oregon. The Multnomah County Court says the city has been routinely overcharging public records requesters for fulfilling routine public records requests. (via Merrick Law, LLC)

The brief ruling [PDF] contains enough detail to show how city employees inflated costs they passed on to requesters who were made to pay up front before document searches would commence. In this case, the requester (Alan Kessler) sought metadata from four government email accounts. The city first gave him an estimate of $205.61, based on an estimated two hours of search and prep time with a 39% markup for "overhead costs."

As the court notes, the city admitted the overhead costs collected rarely went to cover employee overhead. On top of that, the hourly rate used was calculated using the hourly wages of the employees performing the search. This sounds reasonable, but it actually isn't. In this case, the search was performed by two of the city's higher-paid employees, both of whom appear to be overqualified for the work they'd been tasked to do.

Mike Nichols, an Information 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 rale plus 39% should have been $66.09 per hour. Nichols' actual time billed for the search was 1.25 hours. Nichols' time record attributed 1 hour to the 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.

Once this search was completed, it was handed off to a third person. This person, the city's Public Records Coordinator, did everything but coordinate public records once she received the request. First, she added another 2.5 hours to the estimate, raising the cost by $106. Then she devoted her partial attention to it over the next month while suffering an illness, attending a funeral, and spending six days covering someone else's job.

As the court notes, this estimate process has almost nothing to do with actual costs and artificially inflates them by handing the job over to some of the city's highest-paid employees.

Here, the City presented testimony and evidence of the hourly rates (including the 39% mark-up for benefits) 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.

The city argued this was okay because it gave refunds to requesters who had been overcharged. But the court points out that there's actually no mechanism in place to challenge fee assessments or demand refunds. Requesters just have to hope the city is being honest in its assessment of costs and that they will see a refund check if the city decides it has overcharged a requester.

Since this request resulted in litigation, there's no reason to believe the city reviews request fees it has collected and issues refunds voluntarily. The plaintiff was refunded $52.00, but this happened more than a month after he filed his lawsuit. That appears to have been the motivating factor.

That's not nearly good enough, the court says. The city needs to change the way it assesses fees and handles refunds. The order gives the city a list of things to correct while blocking it from overcharging for routine document searches in the future.

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.

The city is also responsible for part of the requester's legal fees since he partially prevailed in his lawsuit. The final total won't be in the thousands of dollars, but this small win for Kessler is a bigger win for other Oregonians. The city can't continue to hand public records work to people at the top end of the wage scale and assume that follows the spirit and letter of the law.

Excessive fees deter requesters -- something that only benefits governments opposed to accountability and transparency. Deterrence may not have been the goal here, but it's a fortunate side effect. Now that option is gone, at least for public records requests determined to be "routine."

Filed Under: excessive fees, foia, journalism, oregon, portland, public records, transparency


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  • icon
    ECA (profile), 22 Nov 2019 @ 5:58pm

    Why in hell..

    3 employee, 2 of which seem to be very high pay?? Wish I had their jobs.
    All 3 being paid for by the state and your taxes, and this is PART of their job?? And they CHARGE for it on top of wages??

    so, do they get Double time?? I really want those jobs..
    What would you do with $100,000 per year??
    Live as low as I could and bury the money until I had $1,000,000..
    And retire happy?? 2% interest would be $20,000 per year..

    reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 23 Nov 2019 @ 10:41am

      Re: Why in hell..

      It also took them hours to gather the information that the government is required to have ready at hand by law.

      If someone were to answer a government-issued subpoena using the same tactics the government uses when answering open records requests, the person answering the subpoena that way would be in jail.

      reply to this | link to this | view in chronology ]

      • identicon
        Richard, 23 Nov 2019 @ 11:48am

        Re: Re: Why in hell..

        A lot of time can be required to gather, determine what if any redactions are required by state or federal law, do any redactions, and then provide the response. Pretending otherwise isn't useful. However, the ability to charge all the costs incentivizes poor record keeping practices and unnecessary costs being incurred. My state deals with that by making only the actual costs of copying, as in the paper, ink, disks, etc. an available charge. The labor costs are born by the public entity. Although I strongly prefer this model, there is a cost to the taxpayer as some requests can involve a lot of labor.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 23 Nov 2019 @ 2:19pm

          Re: Re: Re: Why in hell..

          Except this falls into the same category. There is no excuse for charging extra for what is already in the legally required and expected minimum. If you sold a pizza, demanded an extra $7.15 to actually cook or even deliver the ingredients and refused to refund the pissed off customer you would wind up in jail for fraud.

          We're not pretending that it doesn't require time - we are demanding that they use the money they were already given to do their fucking job.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 23 Nov 2019 @ 3:15pm

            Re: Re: Re: Re: Why in hell..

            "We're not pretending that it doesn't require time - we are demanding that they use the money they were already given to do their fucking job."

            Yeah!

            reply to this | link to this | view in chronology ]

            • identicon
              Richard, 23 Nov 2019 @ 5:50pm

              Re: Re: Re: Re: Re: Why in hell..

              And when a public entity is required to absorb the costs of the labor required for replying to public records act requests, that labor is another factor in agency budgeting as they calculate the employee hours required to meet their obligations. As I said, I believe that is the better model but it does shift the cost of the necessary labor hours to the taxpayers from the requester.

              reply to this | link to this | view in chronology ]

              • identicon
                Valkor, 25 Nov 2019 @ 6:43am

                Re: Re: Re: Re: Re: Re: Why in hell..

                It shifts the cost to the taxpayers? Good.

                If your city keeps being such a colossal screw-up, it will keep having to shoulder the cost of its own mistakes. If it makes so many mistakes that the taxpayers start to notice, maybe some people who care will try to get elected and do a better job.

                You know, of the people, by the people, and all that...

                reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 23 Nov 2019 @ 3:16pm

          Re: Re: Re: Why in hell..

          You meant that to be funny, right? Well I marked it as such.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Nov 2019 @ 7:18am

      Re: Why in hell..

      IT has no actual budget of its own, it has to charge the various city Bureaus for the IT resources they use. When they bill a Tech V and Architect's time out to another Bureau, the cost to the taxpayers is then paid out of the budget of the Bureau that actually used those resources. They're not charging fees on top of their wages, you really misinterpreted that part.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Nov 2019 @ 9:19am

    I wonder which Bureau will end up having to eat the extra costs to fulfill FOIA requests after this ruling? The various city bureaus charge each other rates for the people that actually did the work, but this ruling will require them to charge their lowest possible rate regardless of who fulfills the request.
    This could ultimately backfire and cause rates to go up if the City decides that all future requests must be fulfilled by at least a Tech V and Architect.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Nov 2019 @ 11:56am

    You're stretching pretty hard here, Tim. This judgement is the result of bad accounting practices and lazy time keeping by City employees. You're trying to cast it off as a deliberate act to deter FOIA requests. Why?

    On what do you base your assumptions that the city was intentionally fielding work to more expensive employees that are, according to you, overqualified? That information wasn't available from the city, so the court has to assume it would be favorable to the plaintiff. That doesn't make it fact.

    In all of the IT gigs I've worked, they've never given junior techs administrative rights to the email systems. A Technician Analyst V might be trusted with domain level administrative permissions and access to Exchange, and an Architect would be a logical escalation to check or approve their work. They could skip the Analyst queue entirely and kick all of the requests to an Engineer if they really wanted to pad the billing.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Nov 2019 @ 1:30pm

      Re:

      We immediately give all our new hires domain admin. It's never been a problem for us. Keeps the cost of FOIA requests low, and the data center only crashes like once a week.

      reply to this | link to this | view in chronology ]

    • icon
      Tanner Andrews (profile), 2 Dec 2019 @ 4:47pm

      Re: [deterring public records requests]

      You're trying to cast it off as a deliberate act to deter FOIA requests. Why?

      Most likely because the intent is to deter public records requests. Agencies who have things to hide generally dislike public records requests. Attaching unreasonably high price tags deters such requests: few citizens really want to part with a couple of hundred dollars to find out how much a small portion of the local government is stealing.

      I still remember this being an issue, at the half-dollar level where the statutory rate was fifteen cents, many years ago. I complained at a meeting. The chairman of the board, Terry Bishop, asked how many other people in the room had been overcharged in order to demonstrate that my complaint was a rarity. So he was not tickled when several hands went up.

      Terry Bishop is gone, if not much missed. And that entity has gone through some major restructuring, but I will say that they do a pretty good job now of complying with public access laws.

      A mopre extreme example is seen in Cardon v. Chief of Police, City of Clewiston Police Department, 696 So.2d 772 (Fla 2DCA 1996). There, the chief charged over $4000 in order to deter requests.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Nov 2019 @ 1:25pm

    both of whom appear to be overqualified for the work they'd been tasked to do

    Guess Portland is about to have interns figuring out what to send in response to FOIA requests.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Nov 2019 @ 11:01am

      Re:

      Let's give every BTS employee access to the email for the Mayor's office, the City Council, the Portland Police Bureau, and BTS! Saving FOIA requesters $52 is way more important than taking basic steps to protect our city's cyber infrastructure!

      reply to this | link to this | view in chronology ]

  • icon
    Tanner Andrews (profile), 2 Dec 2019 @ 4:50pm

    Re: [interns fulfilling public records requests]

    interns figuring out what to send in response to FOIA requests

    Sounds about right. Interns, if smart enough to be allowed to work indoors, ought to be able to recognize and redact social security numbers, bank account numbers, and the few other things properly exempted from public inspection.

    If the computer system is set up to make responding to public records requests difficult, then the entity ought to bear the cost of pulling out the records for the intern to redact.

    reply to this | link to this | view in chronology ]


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