By Lauren Cullop and David Fidanque

Government transparency, including the ability to inspect public records, is a critical element of a functioning democracy. This is especially true when public records involve issues of civil liberties. What happens, then, when a public agency makes accessing those records cost-prohibitive? The ACLU Foundation of Oregon recently found itself in this situation, and successfully fought for greater accessibility to records the public has the right to see.

After first meeting with Jackson County Sheriff Mike Winters, the ACLU began a comprehensive investigation of conditions in the Jackson County Jail in 2009. Sheriff Winters had pledged to cooperate with the ACLU’s review, and his office did cooperate with periodic surveys of jail inmates. However, the Sheriff and his staff ignored the ACLU’s informal requests for public records for many months.

Eventually, ACLU volunteer cooperating attorney Charles F. Hinkle made two formal public records requests. In response to the first request, the Sheriff withheld portions of the jail operations manual for “security” reasons. On September 3, 2010, the ACLU made its second request to Sheriff Winters, requesting copies of all use of force incident reports for 2008 and 2009, as well as for a copy of the table of contents of the Jail Operations Manual. Hinkle also requested that the Sheriff waive any fee, or charge a reduced fee, since release of the information was in the public interest.

More than two months later, Jackson County Counsel responded saying that ACLU would have to provide a payment of $4,574 before the Sheriff would produce any of the records requested. The response ignored the fee waiver or reduction request entirely. As a solely donor-funded, non-profit organization, the ACLU Foundation of Oregon’s entire annual budget for public records requests and the subsequent reports is only $2,000. ACLU cooperating attorneys Allen Drescher and Charlie Hinkle filed a lawsuit challenging the Sheriff’s response on May 6, 2011.

While ORS 192.440(5) grants public bodies discretion in determining whether to fulfill a public records request at no charge or at a substantially reduced fee, this discretion is not absolute. In one of the few appellate cases on this issue, In Defense of Animals v. OHSU, the Oregon Court of Appeals confirmed that the public agency’s decision to eliminate or reduce the fee must be objectively reasonable. If the records request is for the public benefit, the Court held, failing to waive or reduce the fee constitutes an abuse of discretion.

The ACLU’s challenge finally went to trial on February 15, 2012, before Jackson County Circuit Court Judge Daniel L. Harris.

At the trial, ACLU Foundation of Oregon Executive Director, David Fidanque, testified that the resistance of Sheriff Winters to releasing public records is uncommon.

“Most of the time when we ask state and local agencies for public records, we usually ask informally first, we usually get them, and we don’t usually have to pay,” Fidanque said. “They usually give us the documents electronically and fairly promptly. It is relatively rare that we have to make a formal request.”    

On the other hand, the Sheriff’s Department defended its fee by stating that only one staff member was qualified to fulfill the records request: an administrative sergeant, earning $38.48 per hour. Given the amount of hours the request would take, the Sheriff’s Department argued, the fee was reasonable.

The court disagreed. In his ruling issued several days later, Judge Harris determined that the actual cost to the Sheriff’s Department to produce the records would be roughly $900, rather than $4,574. Concluding that lesser-paid staff members were also qualified to pull and copy the records, the court ordered the Sheriff to provide the records to the ACLU for only $500. More importantly, the court found that the Sheriff’s Department abused its discretion by effectively blocking records the public is entitled to access.

As of this writing, Jackson County has filed a motion seeking a new trial for the purpose of challenging the portion of Judge Harris’ ruling that found the Sheriff’s Department could produce the records for as little as $500. ACLU cooperating attorney Allen Drescher opposed that motion.

“Our request for the incident reports on the use of force in the jail goes to the core of how Sheriff Winters and his staff are operating the jail,” Fidanque said. “The public has a right to know if inmates are being treated humanely in accordance with the law and the Constitution.”

Assuming the County’s request for a new trial is denied, Sheriff Winters and Jackson County could appeal, but Fidanque says the Sheriff should just produce the records and be done with it. The ACLU and the public have already waited far too long.