Oregon ACLU now representing local racial justice advocacy group in lawsuit over public records request fees

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Maitiu Sanchez/ The Broadside

The American Civil Liberties Union of Oregon is now defending the Central Oregon Peacekeepers, a local social justice advocacy group, in a lawsuit brought on by the City of Bend in March over the group’s refusal to pay for the cost of producing thousands of public records.

The Peacekeepers, whose work includes “researching governmental actors and entities to identify and, where appropriate, expose biases against their political and societal views,” had group volunteer Michael Satcher submit a public record request on its behalf from the City of Bend on January 19, after a clash between Black Lives Matter protesters and right-wing counter-protesters on October 3, 2020, at Pilot Butte Park. During the incident, multiple aggressive interactions occurred, including one counter-protester drawing and presenting a firearm from his truck and another man who BPD cited for pointing a revolver at protestors. BLM protestors pepper-sprayed several counter-protesters.

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The Peacekeepers felt that Bend Police Department was “treating counter-protestors with kids gloves” but used “extraordinarily brutal measures against the racial justice advocates.”

The Peacekeepers in their Answers and Counterclaim filed by Rian Peck and Alan Kessler from the ACLU say that the public would greatly benefit from releasing them.

“the records requested would benefit the general public by answering outstanding questions related to BPD’s and the city’s treatment of racial justice advocates versus right-wing counter-protesters at the October 3 demonstrations at Pilot Butte Park,” said The Peacekeepers.

The City’s estimated fee for disclosing the public records would be $4,777.62, based on the City’s estimate, and would take 62 hours to review related records. The City also said that “it would bill [Peacekeepers] $71.06 per hour to search police records and $66.21 per hour to search emails.

On February 3, the City contacted the Peacekeepers asking them to narrow the scope of their public records request. Peacekeepers declined, saying in their Answers and Counterclaim that it was “already narrowly tailored to shed light on matters of public importance” like “BPD’s disparate policing tactics for racial justice activists versus right-wing protestors.”

Later that month, the City reached out again to the Peacekeepers, offering a 25% fee reduction. Peacekeepers informed the City that fee waiver was “arbitrary and capricious because it was not fee waiver at all.” Peacekeepers also denied that “the City’s purported fee reduction was reasonable and authorized by state law and city policy.”

The Peacekeepers also said in their Answer and Counterclaim that the City had “charged a 100% markup on the hourly cost to review the records as compared to the City’s quoted hourly rate to someone who had submitted a public records request days earlier.”

The Peacekeepers also argued that “the City’s refusal to waive more than the “25% fee reduction” was the pretext for delaying the public records process, among other things.” Peacekeepers have refused to pay the City’s fees.

Rian Peck stated, “The City of Bend’s primary argument for the exorbitant fee it imposed was that Central Oregon Peacekeepers asked for a lot of documents, and it will take a lot of time to review them. What the City fails to mention, however, is that at the same time it was charging the Peacekeepers $71.00 per hour to review documents, it charged someone else who submitted public records request just days before only $30 per hour – less than half of what the City is imposing on the Peacekeepers as a racial advocacy organization.”

Peacekeepers then filed an appeal to Deschutes County District Attorney John Hummel and found the City’s fee unreasonable and ordered the City to waive its public fee. In response, The City filed a complaint about declaratory relief naming Satcher as the only defendant.

The City and its attorney, Mary Winters, are worried that Hummel’s decision will set a precedent at odds with state law.

“Because we process requests in a non-discriminatory manner, a new standard for fee waiver requests could mean City staff have to perform free work for other groups or individuals with very different political or social views from the Peacekeepers,” wrote Winters. “The issue of the standard is important enough to take to court and get a clear answer.”

In the Peacekeepers Answers and Counterclaim, they request that the Court:

1)Deny City of Bend’s claim for release

2)Issue an order declaring that fees requested by the City of Bend were excessive and unlawful

3)Issue an order requiring that pursuant to the Oregon Public Records Act (ORS Chapter 192) the information requested by Central Oregon Peacekeepers be released to them by the City of Bend and/or any of its assigns, including but not limited to any bureaus within the City of Bend

4) Award Central Oregon Peacekeepers their reasonable attorney fees and costs and under ORS 192.431 and ORCP

5) Award Central Oregon Peacekeepers the Prevailing Party Fee

6)Award other such relief this Court deems just and equitable.

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