Oregon Public Records Appeals (State Agencies)

Oregon has a relatively quick and easy appeal process for improperly denied public records requests. The public records act allows anyone "denied the right to inspect or to receive a copy of any public record of a state agency" to petition the denial to the Attorney General ("AG"). Which is then expected to issue an order.

The AG accepts petitions by web form, mail or email. Because public records are supposed to be accessible, the AG is generally good about accepting and giving fair consideration to informal requests. Often it is sufficient to provide a simple timeline of what happened, the text of the request, and PDF copies of any correspondence between the requester and the agency.

If the AG finds that the state agency violated the public records act they are supposed to — within seven days of the petition — order the agency to disclose the records, and may also order a fee reduction and/or a $200 penalty to be paid to the petitioner.

If the AG rules against the petitioner or fails to respond in seven days, this opens the door for the petitioner to sue the government in court to order disclosure. In such a lawsuit, the petitioner is entitled to be paid its attorney fees and costs if it prevails.

If the AG rules in favor of the petitioner, then the agency must either file suit against the petitioner to appeal the ruling or comply in full with the order. If the agency disobeys the order and does not appeal, then the petitioner may file suit, and, extraordinarily, is entitled to its attorney fees win or lose.

Below is a fairly straightforward example of a request submitted on behalf of https://twitter.com/kenklippenstein which can be used as a guide or template.

December 10, 2020 Office of the Attorney General PublicRecordsOrder@doj.state.or.us VIA EMAIL ONLY Re: Klippenstein Records Request to Oregon Titan Fusion Center To Whom It May Concern: I represent Ken Klippenstein with respect to his October 23, 2020 public records request submitted to the Oregon TITAN Fusion Center (“OTFC”). On 10/23/2020 Mr. Klippenstein has requested certain metadata from all finished intelligence products produced or possessed by the OTCF. Mr. Klippenstein’s full request is attached to this letter as Exhibit 1. Since receiving his request, OTCF has corresponded with Mr. Klippenstein by email. A copy of the correspondence is attached as Exhibit 2. On 11/10/2020 OTFC claimed that the Department of Homeland Security (“DHS”) is the custodian of all responsive records. A few hours later, Mr. Klippenstein pointed out that DHS would not be the custodian of (at least) any Oregon- generated records. On 11/17/2020 OTFC “resent’ Mr. Klippenstein’s request to the Criminal Justice Division, apparently to look for responsive records related to Oregon-generated intelligence reports.. On 12/9/2020 OTFC responded that it “does not maintain a separate log of Oregon-specific products.” The Oregon Public Records Act requires a public body to complete a request within fifteen business days of receipt.

Notwithstanding this requirement OTFC has failed to provide any responsive records in the more than 30 business days since the request was sent even though the correspondence strongly suggests that responsive records exist. OTFC’s assertion that it does not maintain a “separate log of Oregon-specific products,” is a non sequitur, which implies that the entity maintains an integrated log of Oregon-specific and non- Oregon-specific products. If this is the case, the integrated log is responsive and should have been disclosed pursuant to Mr. Klippenstein’s request. Moreover, OTFC’s focus on the existence or non-existence of “logs” suggests that it may be taking an inappropriately narrow interpretation of the request, which asked for “records sufficient to show the titles of finished intelligence products and all corresponding metadata (e.g. a document number, document type, document date)” of “all finished intelligence products produced or possessed by” OTFC. The OTFC is certainly in possession of intelligence reports, that is a core aspect of its mission. The reports possessed by OTFC almost certainly have titles and corresponding metadata. If nothing else, the OTFC should disclose the entire intelligence reports, which would have the requested titles and metadata. It is likely, however, that the records are indexed in some way that would allow a more efficient disclosure of just the responsive information requested. The responses by the OTFC have been obstructive and have been contrary to Oregon’s public policy of transparency. Mr. Klippenstein respectfully requests an order from the Attorney General pursuant to ORS 192.407(3)(a-c) requiring immediate disclosure of all responsive materials, waiving any fees associated with the request and requiring OTFC to pay Mr. Klippenstein a $200 penalty for unduly delaying disclosure. Thank you for your attention to this matter. Very truly yours, Alan Lloyd Kessler 2

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