In 2015, The Oregonian/Oregon Live requested an electronic database detailing property recorded into evidence by the Portland Police Department.
Instead of promptly handing over the database for a small fee, however, the police department informed the newspaper that the requested data would cost more than $1 million — $1,042,450.20 to be exact.
Unable to pay the exorbitant price for the full database, the news organization decided to settle for a subset of the database: information about sexual assault testing kits. Ultimately, the newspaper used the data to report that thousands of untested rape kits were left neglected by Portland police. The 2018 investigation led to the passing of Melissa’s Law, requiring police to establish protocols to prevent backlogs in testing.
“This is what can happen when journalists shine a light on the workings of government,” reporter Samantha Swindler wrote in a column for The Oregonian/Oregon Live, “but it only happens when we have access to public records — the documents, emails and digital data created and maintained by public employees using your tax dollars.”
This scenario is far from unique. Journalists and news organizations across the country frequently struggle with the high costs of public records when reporting investigative stories. But these high costs are especially burdensome for journalists and other requesters in Oregon — so much so that the excessive fees were cited in a 2019 report by the former Oregon Public Records Advocate as “perhaps the single most pressing issue related to public records requests in the state.”
News organizations in Oregon emphasized the high price tag for public records in an application for an attorney in the Reporters Committee’s new Local Legal Initiative, which launched in Oregon in August. The application said that some reporters won’t even consider covering stories in the public interest because they’re discouraged by the cost of records and the culture of secrecy in the state.
“In this environment, even the state’s most dogged reporters won’t pursue certain stories because they know getting necessary records will be too time-consuming or expensive to justify,” the application said. “Projects of a type that used to be undertaken now are not even contemplated. Agencies understand this dynamic and exploit it.”
Why this matters
The high cost of public records is not only a significant barrier for journalists and news outlets that depend on access to data and documents to report on the government — it’s also an obstacle for members of the public who want to know how their tax dollars are being spent.
“Members of the public cannot afford to pay hundreds or even thousands of dollars” to access records, Ginger McCall, the form Oregon public records advocate wrote in her 2019 final report, “nor can media representatives in today’s economically-constrained media atmosphere.”
If you’re a journalist in Oregon who has been charged unreasonably high fees to obtain public records, please contact Ellen Osoinach, the Reporters Committee’s Local Legal Initiative attorney in Oregon, at firstname.lastname@example.org.
Oftentimes, public records are the only way for the public to understand what the government is doing, said Reporters Committee Staff Attorney Adam Marshall.
“When government officials refuse to voluntarily provide information, public records form a legal backstop that requires the government to make non-exempt records available, illuminating its work on behalf of the public,” Marshall said.
Stories reported with public records have uncovered serious issues in Oregon and other states across the country, in some cases prompting much-needed reforms. In 2019, for example, the Oregonian published “Polluted by Money,” an investigative series about Oregon’s campaign finance system. Reporter Rob Davis reviewed millions of contribution records to emphasize how Oregon’s no-limit campaign donation system has led to increased corporate money and corruption.
Also last year, InvestigateWest, Pamplin Media Group and Reveal from the Center for Investigative Reporting collaborated to analyze public records they requested from high schools across Oregon as part of an investigation into youth concussions in the state.
“About half the schools ignored the requests, violating the state’s public records law, and didn’t respond to follow-up calls and emails, including outreach to principals, athletic staff, school board members and superintendents,” the reporting team wrote in February 2019. “Some schools demanded excessive payment, others cited dubious legal issues, and many played bureaucratic hide-and-seek.”
Inflated fees in Oregon, other states
At the federal level, the Freedom of Information Act specifically defines what fees can be assessed. Representatives of the news media may only be assessed duplication fees, and all fees must be waived if the information is in the public interest. Investigative reporting has long been recognized as a public service.
On the other hand, commercial requesters — who are interested in records to further their financial interests — pay full price, which can include copying and duplication costs, as well as time spent searching for the records and reviewing them for exempt material.
Marshall says fees journalists pay for records must be limited because the news media acts as the public’s eyes and ears.
“When a reporter asks for public records,” he said, “they’re not just doing it on their behalf, they’re doing it on behalf of the public at large.”
States have their own public records laws, which members of the press and the public can use to obtain records on everything from local schools to state agencies. But the strength of state laws — and the extent to which they make records affordable for the public to access — varies widely.
Oregon’s public records law has a number of issues. One major problem is that government agencies are allowed to determine the costs of records, offering government officials the opportunity to cite inflated costs in the hopes of getting requesters to narrow or drop their requests.
Other states are also known for their efforts to escape scrutiny by abusing their power to decide the cost of records.
Take Michigan, for example. In 2009, the Michigan Department of State Police said it would cost the Mackinac Center for Public Policy almost $7 million for records regarding the state’s handling of federal homeland security grant money over the previous seven years. The Mackinac Center requested the documents after the state’s Office of the Inspector General found issues with the administration of $129 million in federal grant money.
High fees have also garnered attention in Massachusetts. Attorney Thomas Workman requested records from the state regarding the accuracy of Breathalyzer machines. The price tag for the records? $2.7 million. States including Ohio, South Carolina and Washington, however, had all provided similar information for free.
The Hawaiian government has also long been criticized for attempting to use public records fees as a barrier to entry. In 2013, the Honolulu Civil Beat, a local newspaper, requested the Hawaii governor’s travel records under the state’s public records law. The state said the records would cost more than $1,000, based on copying fees and an estimated 50 hours needed to find the records. Muckrock, a nonprofit dedicated to government accountability, had requested similar records from seven states and found that Hawaii charged the most by far — with California and Arizona providing the records at no cost.
Legal support for the fight against high fees
In August, Ellen Osoinach joined the Reporters Committee as Oregon’s Local Legal Initiative attorney. In her new role, she will provide pro bono legal support to help local journalists and news organizations in the state defend their rights to gather and report the news, gain access to public records and court proceedings, and hold state and local government agencies and officials accountable — that includes helping reporters fight back against agencies that charge excessive fees for public records.
Within her first two months on the job, Osoinach received an inquiry from a journalist in Oregon concerning public records fees. And she knows it won’t be the last.
“It’s clear that many journalists are frustrated with agencies that use excessive fees as a way to shield data, documents and other records from public disclosure. This is a serious issue that the Reporters Committee plans to address through our Local Legal Initiative in Oregon,” said Osoinach, who previously handled public records appeals as a senior deputy attorney for the city of Portland. “Journalists and news organizations can’t tell important stories about their local communities — stories about schools, police and the environment — if they’re priced out of accessing the information they need to report them.”
The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.