It’s getting harder for PNW residents to access public records

But typically, fees in Washington pale compared to those in neighboring states. 

One analysis of tens of thousands of records requests made through MuckRock, a records assistance website, found that their Idaho requesters faced the steepest fees in the country, while fees have remained the lowest in Washington. 

Reporters from Portland describe the fee negotiation process as a constant source of frustration, a haggling ritual that becomes a battle of wills.

Worst of all, since Oregon charges for the actual wages involved with the work performed, the more inefficient an agency is, the higher the penalty. 

“I once had a small city east of here that had 17 different people review a request and each one of them charged by the hour,” said Therese Bottomly, editor of The Oregonian.

A 2023 study co-authored by Cuillier argued that “aggressive pursuit of fees merely adds another task to already overburdened agency staff” while serving as a barrier for those who “cannot pay, namely, regular citizens, journalists, and scholarly researchers.”

In theory, records staffers in both Oregon and Idaho can waive fees if the records are in the public interest. But such decisions can be wildly inconsistent. 

InvestigateWest requested a fee waiver for a week of communications involving either the Portland mayor or his chief of staff. The estimated $1,800 bill worked out to roughly $63 an hour, or an estimated $9 for every 10 messages. Portland offered to provide one hour of free work, but wouldn’t budge on the overall price unless we narrowed our request. 

Of the nine other Oregon and Idaho cities InvestigateWest sent similar records requests to, only one — Hillsboro, Oregon — was willing to fully waive the fees. In the other cities, InvestigateWest didn’t pay the fees — and therefore was not able to get all the requested records. 

In 2022, the Salem Reporter asked for documents relating to the exit of the deputy police chief. Salem initially charged over $4,200 for one set of records. The newspaper raised money from its readers to cover the cost before the city relented. In 2020, The Oregonian had to pay more than $2,000 to get receipts from Douglas County showing that commissioners had wildly misspent federal funds on lavish flights and dinners. 

“The clear feeling among practitioners who use the public records law a lot — not just journalists — is that fees are another way to create hurdles to disclosure to make people go away,” Bottomly said. 

And if requesters are truly trying to be a nuisance, even Portland-sized fees won’t stop them. 

In December 2022, Patrick Cashman — a Portland records activist who previously crusaded against the city’s refusal to reveal the route of the World Naked Bike Ride — asked for every single record the city had already released that year to other requesters. It was an attempt, he wrote in an email to InvestigateWest, to push the city to upload all those records to an open data portal like federal agencies do. 

Instead, Portland asked him for nearly $68,000 to re-review and upload the records again. So Cashman hit back: He split his request into 365 separate pieces, one for each day. 

Cashman’s not above paying for records — he shelled out nearly $3,000 for Portland records alone — but Wilton said he didn’t pay the bill on any of those 365. He just made the city jump through a year’s worth of hoops, then abandoned them. To Cashman, it was a “free speech exercise,” a way to protest an unaccountable, “byzantine” records bureaucracy.

“I enjoy torturing city personnel because it really is the only way we citizens can get some payback,” Cashman wrote in an email to InvestigateWest, reasoning he “might as well make every day of their life an unendurable hell until they decide on a different career.” 

A report issued this year from Portland’s Legal Records Team dedicated an entire section to Cashman and called for new legislation to stymie this kind of requester. 

But records advocates are wary of such proposals. The line between vexatious and merely persistent is thin, and sometimes gadflies and trolls uncover scandals and change policies. Bottomly recalled a woman who’s made numerous records requests about the Multnomah County Animal Shelter over two decades.

“That is somebody who has made it her life’s mission to be a citizen watchdog of the animal shelters,” Bottomly said. “There are citizens who, bless ’em, take very seriously their responsibility to monitor government.” 

And even the requests of someone like Cashman are dwarfed by those of the real giants in the room: data brokers. 

In a brief span between 3:50 and 3:55 a.m. on Feb. 7, Justin McNeal made 14 record requests in Portland, part of a spree of 151 requests that day alone.

And last year? McNeal made over 9,000 record requests to Portland — 11 times more than every media request in 2023 combined, almost all for accident reports. 

McNeal doesn’t live in Portland. He lives in Atlanta, where he’s an operations manager for LexisNexis Risk Solutions.

LexisNexis is a data broker, a company that makes its fortune hoovering up records on practically everything — criminal history, debtor information — and then selling records and data insights to insurance companies, law enforcement and even back to consumers. 

Through LexisNexis, McNeal paid Portland more than $110,000 last year. Meanwhile, last year, a single requester from a competitor, MetroReporting, paid more than $13,000 for over a thousand individual records. 

It was the requests from these sorts of companies that, according to a report from Portland’s Legal Records Team, brought the Portland Police Bureau record system to its knees. At its worst, in January 2022, Portland’s police records had a backlog of over 22,000 open requests and two-thirds of them were taking more than two months to fulfill. 

Cuillier, the records expert, said it underscores his study that shows fees don’t do much to deter some of the most high-volume requesters — like attorneys or data brokers. 

“These companies, they’re perfectly happy paying to get this data because they make money off it,” he said. “The public-interest requesters … they’re ones who are getting hosed.” 

650 and counting

In the past decade, there have been reform attempts to expand records access in Oregon. But Washington and Idaho legislators keep running in the other direction. 

In 2020, Idaho legislators passed a bill to exclude from records requests legislative notes and the names of private citizens who communicate with them. And last year, Washington state House Democrats figured out a creative way to reinterpret a state constitution provision into a “legislative privilege” that they have used to ignore many records requests. The Olympian reported, Washington state House Democrats figured out a creative way to reinterpret a state constitution provision into a “legislative privilege” that they have used to ignore many records requests. 

Some legislators have pointed to the burden on local governments and state agencies as a reason for weakening public records laws. This year, for example, Idaho legislators passed bills doubling the time allowed to fill records requests from out of state. 

Yet by winnowing public records laws, legislators have often made the delays worse.

The hard part of a clerk’s job isn’t locating records. It’s reading thousands of pages of documents, spotting parts they legally need to redact — like lists of names if a requester wants them for commercial purposes — and blacking them out. The more redactions required, the more complicated the job. 

And in the past half-dozen years, Washington state legislators have turned personnel records into a Swiss-cheese block of exemptions.

“Every year the Legislature adds, on average, a dozen or more exemptions. We’re now up to more than 650,” said George Erb, with the Washington Coalition for Open Government, a nonprofit that advocates for governmental transparency. “Every time they do that, it just makes the act more complicated for everybody. Our own public records lawyers say that … even they have a hard time keeping up.” 

One new law mandated that if information was contained in a personnel file, the agency had to contact every employee mentioned to give them a chance to legally challenge the request. 

Another required employees to black out victim and witness names from harassment or discrimination investigation records. 

Even something that seems like a minor change could be hell on records clerks: Consider a 2020 law requiring redaction of the months and year, but not the day, of public employee birthdays. 

“If all we had to do was redact that whole column, that would be easy,” Dinaro said. “But no, instead, what we have to do is convert this spreadsheet to a PDF, and then make these tiny little boxes on each row.” 

But if a journalist requests the record, the law says the birthdays shouldn’t be redacted at all. 

The complications compound until they sound like the setup to a bad joke: A journalist, a commercial data broker and a curious citizen all walk into a city clerk’s office and request the same set of employee names and birthdays. The clerk has to redact their records three different times in three different ways.

The Legislature hadn’t just added more work for clerks. They’d multiplied it.

Record comebacks

At the local level, at least, some leaders are trying to figure out ways to ease the burden on clerks without cutting off public access. 

Spokane City Councilmember Michael Cathcart told InvestigateWest he plans to resurrect a 2021 proposal to post many already-processed records online. It’s a bit like what the city of San Diego and the Oregon governor’s office do.