Sometimes, people requesting public records and the public body disagree over what must be produced, the cost of production, and who should pay the cost. When the parties cannot work things out between themselves there are two options: (1) they may seek free help to facilitate resolution of their dispute or (2) the requester may formally appeal the decision of the public body. This page covers facilitated dispute resolution under the Oregon’s Public Records Law.
Soon, there will be two avenues for facilitated dispute resolution (“mediation”): with the Oregon’s Public Records Advocate and with the Oregon’s State Archivist. (The Senate must confirm the appointment of the Public Records Advocate.)
Disputes between Requester and State Agencies.
Either party may seek mediation services from the Public Records Advocate or the State Archivist. When the requester seeks mediation, the topics of mediation are the same regardless of who mediates: Denial of records, amount of costs and who should pay. When the state agency seeks mediation, the topics overlap on three matters: whether the records are public, whether an exemption applies and whether the agency is entitled to fees.
With the Archivist, public bodies may also seek mediation on whether the “scope of the public records request is too broad to be cost efficient.” Despite the different wording in the law, in practice, such “scope of request” issues will arise and be discussed with the Public Records Advocate, too.
Voluntariness – Parties
In private mediations, voluntariness is a prime ethical directive: a party may not be forced to mediate. Even when people agree voluntarily to talk with one another, neither must compromise. The goal of a mediator is to (1) help the parties understand what are their own true interests, (2) help them communicate with the other side, and (3) help the parties find a mutually agreeable path forward.
The statute on facilitated dispute resolution with the Public Records Advocate says the requester may opt-out of mediation within five days of receiving the state’s request to mediate. The law does not contain an opt-out provision for the state agency.
The rule controlling facilitated dispute resolution with the Archivist does not address whether one or both sides must participate.
“Voluntariness” – Mediator
The Public Records Advocate must mediate requester / state disputes if other requirements are met. The Archivist may decline requests if the Archivist has reason to believe facilitated dispute resolution would not be productive or a party has acted in bad faith.
“Good Faith” determinations
A big difference between using the Public Records Advocate or Archivist is on the question of “good faith.” If using the Public Records Advocate, either party may ask the PRA to determine whether the other party is acting in good faith. Not so with the Archivist.
If the PRA determines that requester did not engage in good faith in the dispute resolution process, then the requester’s conduct is grounds to withhold records. If the PRA determines the state agency does not engage in good faith, that is grounds to award the requester all costs and attorney fees incurred after the PRA’s determination.
If mediation results in an agreement, both the Public Records Advocate and the Archivist must memorialize the agreement in writing.
Disputes between Requesters and Cities.
When Oregon’s Archivist mediates requester / city disputes, the process is the same as with state agencies.
When the Public Records Advocate mediates requester / city disputes, it differs from state agency mediation as follows:
- With cities, the Public Records Advocate is not required to serve as facilitator.
- With cities, participation is voluntary for both parties. Either party may opt-out.
- With cities there are no good faith / bad faith determinations.
Disputes between Requesters and Local Governments
The State Archivist may provide facilitated dispute resolution over requests to local public bodies. The law does not authorize the Public Records Advocate to mediate those disputes.
When Dispute Resolution Fails.
If mediation fails, the requester may appeal. I cover appeals here.
* The statute uses the term “Facilitated Dispute Resolution.” Academically, “mediation” does not describe the process for a number of reasons. Nevertheless, I use “mediation” in many places as a shorthand. Like mediation, the 2017 statute and administrative rule provide for an impartial or pro-partial third party to help the parties resolve their disputes amicably.
© 2017 by Jeff Merrick.