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DISTRICT ATTORNEY COOS COUNTY OREGON
Chief Deputy District Attorney Erika Soublet Deputy District Attorneys Office of the District Attorney
Karen R. McClintock Ryan Hughes Stephen Pettey James Gardner
Coos County Courthouse 250 North Baxter Coquille, Oregon 97423 (541) 396-3121 ext. 257 FAX (541) 396-2991 TOO 1-800-735-2900
February 28, 2012 Mr. David Bahr Attorney at Law 1035 }'2 Monroe Street Eugene, Oregon 97402 Mr. Mike Stebbins Attorney at Law PO Box 1006 North Bend, Oregon 97459 Re: Public Records Request of the Sierra Club Gentlemen: I have reviewed the materials submitted by both parties regarding the request by the Sierra Club (hereafter Club). The Club requests that I: 1. Order the International Port of Coos Bay (hereafter Port) to disclose those records as described on page three of the letter of Mr. Bahr dated February 15, 2012 that was addressed to me (a copy of that particular page is attached hereto, marked as Exhibit 1, and by this reference is incorporated herein); and 2. Order that the Port waive the fees the Port has required to comply with the request. The Port responds that it has never denied the Club access to the records and states that the issue is whether the Club should pay the costs that the Port believes it will incur in complying with that request. If I understand the Port correctly, if the fee is paid, the Port will comply with the request by submitting to the Club all non-exempt materials.
coos County is an Affirmative
Opportunity Employer and complies with Sec lion 504 of the rehabilitation
Act of 1973.
I note that the materials submitted by both the Club and the Port address only the fee issue. It appears to me that the issue I have to decide today is the fee issue. Consequently, I decline to reach the first issue raised by the Club as I see no evidence that the Port has denied the request of the Club. I will now proceed to address an issue I raise sua sponte and then the fee issue.
I believe there is a threshold issue that needs to be addressed. This is only the second time that I have been called upon to reverse a decision of the Port. As I mentioned in the previous request, I question whether I have authority over the Port for purposes of the Public Records Law. My concern centers on whether the Port is a state agency or a local government entity. If the Port of Coos Bay is a State Agency, then the Attorney General is the person needing to address this issue. If the Port of Coos Bay is an entity defined as local government, then the responsibility to rule on the request lies with my office. I have concerns that I do not have the authority to rule on this matter. The Port Commission is not elected by the local citizens of Coos County. The Commission must be appointed by the governor and approved by the Oregon Senate. The individual members of the Commission are not subject to the recall provisions of Oregon Law and can only be removed by the governor or the legislature. In my view, that would make the Port a state agency thus making the Attorney General the one having jurisdiction over the request. The Attorney General disagrees with my analysis responsibility to rule on the request is with my office. and opines that the
While I am not totally convinced that my position is wrong, there is authority indicating that the Port of Coos Bay is a local government entity and thus for purposes of the public records law, within the jurisdiction of my office. The Public Records Law as defined in DRS Chapter 192 does not define what a local government entity is nor does it define what a state agency is for purposes of this particular statute. When the specific law does not contain the necessary definition, one must then look to other statutes for appropriate definitions. DRS Chapter 174 provides guidelines and definitions to be used in the interpretation of the laws of the State of Oregon. DRS 174.116(1 )(a) states that as used in the statutes of this state "local government" means all cities, counties and local service districts located in this state, and all administrative subdivisions of those cities, counties and local service districts. A local service district is defined in ORS 174. 116(2)(gg) as any port organized under DRS 777.005 to 777.725 and 777.915 to 777.953. DRS 777.915 is the statute creating the Port of Coos Bay. Thus by definition the Port is a local service district and thus a local government entity.
If these two statutes are the correct definition of what a local government entity consists of for purposes of the Public Records Law, then I have jurisdiction to rule on this matter. I will presume that I have that authority and will now seek to address the particular request of the Club. 2. Fee Waiver The Port is allowed to charge a petitioner for public records a fee to cover the actual costs of the Port in complying with the request. The Public Records Law provides that the Port may waive the fee if it so desires. Both the Club and the Port spend a significant amount of time arguing whether it is in the public's interest for the Port to waive the fee. Even if the public interest test is met, the Port still has the option to deny the fee waiver request. See, In Defense of Animals v. OHSU, 199 Or App 160, 189 (2005). As I understand my role regarding this issue, I can only rule on whether the decision of the Port to not waive the fee was unreasonable. While not deciding, I will assume that the public interest test was met by the Club. I will only address whether the fee waiver denial was unreasonable. The Public Records Law is silent as to what factors public bodies such as the Port are to apply when deciding to grant a fee waiver. However, the Port's discretion must be exercised within the range of lawful options available to it. If a proposed fee is not permitted by law, the Port would err if it chose to not waive that fee. Ibid. The Port wants the Club to pay $19,981 to cover its actual cost in complying with the request. According to my review, the costs are broken down as follows:
1. A 75 cent per page charge for a copy of documents. The port estimates that
the documents involved will number approximately 2500 pages. That cost would be $1875; 2. The Port estimates that to find and collect the documents will entail 36 hours of support staff work. The Port states that the cost per hour for support staff is $40 an hour. That cost would be $1440; and 3. The remaining amount is $16,666 which the Port claims will cost for outside counsel to review the documents and to apparently decide which document is exempt from disclosure and which document can properly be disclosed. In reviewing the materials, I cannot find that the Port abused its discretion when it required the copy per page cost and the support staff cost be paid. That totals $3,315. I am having difficulty with the attorney fee cost, which by my calculations is approximately $16,666. The Public Records Law as a whole embodies a strong policy in favor of the public's right to inspect public records. If an agency places a high cost on
the public in order for the public to obtain access to the records, the rights of the public to have access will be hindered, chilled or even denied. As stated in the introduction to the Attorney General's Public Records and Meetings Manual, 2011 (hereafter AG Manual), "Government transparency is vital to a healthy democracy. Public scrutiny helps insure that the government spends tax dollars wisely and works for the benefit of the people." I find that charging a fee that would defeat the purposes of the Public Records Law would be unreasonable. An additional problem I have with the Port not waiving the attorney fee in this case is as follows. Assuming the Port is paid the entire fee as requested, the documents would be found and sent to the attorney for review and to determine what records, if any, are subject to disclosure and which records are exempt from disclosure. It is possible that the attorney could find that a good portion of the records, if not all of the records, are exempt from disclosure. If that were to occur, the possibility exists that the Club could pay a significant sum to the Port and not receive a single record. To force the Club to pay for an attorney to review a document and then have the attorney deny the request because of a claimed exemption is not reasonable. Again, the purpose of the Public Records Law is to allow the public to inspect public records. If the government agency believes that a record is exempt from disclosure, the cost of making the legal determination that a record is exempt should not be placed on the public requesting access to the record. Finally I am troubled by the language of ORS 192.440(4)(b). It states: 'The public body may include in a fee established under paragraph (a) of this subsection the cost of time spent by an attorney for the public body in reviewing the public records, redacting material from the public records or segregating the public records into exempt and nonexempt records. The public body may not include in a fee established under paragraph (a) of this subsection the cost of time spent by an attorney for the public body in determining the application of the provisions of ORS 192.410 to 192.505. I could find no case law or Attorney General ruling that defined the latter part of this subsection. Given the plain language of the statute, I do not believe the Port can charge the Club for the cost of an attorney to determine the applicability of the Public Records Law to the requested records. If the charge is not a permissible recoverable cost, then the Port was not reasonable in waiving the fee. I would point out that the Port wishing to have the records examined by an attorney prior to deciding if they are subject to disclosure is a solid and necessary practice. The Port would be remiss in its duties to not do so. The question I am faced with is who is to bear that cost. Taking into account the above information, I find it was unreasonable for the Port to not waive the attorney fee charge of $16,666. Each of the above described reasons in and of itself would cause to me reach the same conclusion. 4
I do find that the Port was reasonable in requiring the payment of $3,215 for the actual costs associated with finding and copying the records in question. The parties are free to appeal my decision to the Coos County Circuit Court. Such an appeal must be filed with the Court within the time lines as set forth in the Public Records Law.
R. Paul Frasier
Page 3 - Appeal of Sierra Club Public Record Request to the Port of Coos Bay, dated June 30. 2011.
1. All records relating to proposals to export or store coal at the Oregon International Port of Coos Bay, Oregon 97420, hereafter referred to as ("Port"), pertaining to the four proposals code-named Versatile, Mainstay, Clover and Glory (to the extent that the proposals include coal handling activities), including, but not limited to:
A. Any and all emails, minutes, andlor notes from meetings between the
Board of Commissioners and prospective or current owners andlor lessees, which address potential or pending proposals to export or store coal at the Port; and B. Any and all emails, minutes, andlor notes from meetings between the Board of Commissioners and the Dutch consulting firm Portolan, .which address potential or pending proposals to export or store coal at the Port; and C. Any and all communications (including, but not limited to, letters, emails, and applications) between the Boards' staff, commissioners, agencies, andlor others which discuss potential or pending proposals to export or store coal at the Port; and D. Any and all applications for coal export terminals or multi-commodity terminals that include coal export, or proposals to store coal at the Port. 2. All records relating to any proposals for coal export facilities at the Port pertaining to the four proposals code-named Versatile, Mainstay, Clover and Glory, including, but not limited to, applications for permits, discussions of permits or permits issued; agendas and minutes of meetings with representatives from interested companies or where the proposals pertaining to an outside company were discussed. 3. All records relating to the location of the land leased andlor owned by outside companies for coal handling purposes pertaining to the four proposals codenamed Versatile, Mainstay, Clover and Glory (to the extent that the proposals include coal handling activities), including maps and the physical address.
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