Jackson County responds: No.

The County is sticking to its position.

The county says the charter-change group isn't "media" and couldn't widely disseminate the information on commissioner salaries.

County website. By chance the photograph taken from Lower Table Rock includes my farm, positioned just above the word "County."

I think the Jackson County position is foolish and it sends a message of defensiveness and obstruction. The county disagrees. The county asserts it has the legal right to decide that it does not think the charter-change group can disseminate the information the county would look up. The county has discretion here, and it made its choice.

The county says it doesn't want to set a bad precedent. 

The County Counsel says the time he has spent fighting to charge the $284.64 has been "fairly de minimus," i.e. negligible, and that it is part of his salaried job, not extra work. I think it is obvious that a lot of wasted resources have gone into defending a weak county position. The county disagrees.

The Counsel would not reveal whose idea this was to put a nuisance roadblock in front of the charter-change group --  his own, the County Administrator's, or the three commissioners. He cited client confidentiality. As this will play out, the commissioners will get the blame. Legally -- theoretically at least -- the County Administrators work for them, not the other way around. The fallout is political and hurts the commissioners. 

I offered the County Counsel the unsolicited advice to provide the salary data available freely and gladly, based on the fact obvious to the public -- if not the county -- that the information was of general interest and would be distributed widely. Look helpful, not defensive, I suggested. He said that would be "highly inappropriate."

I am grateful for his good, timely response. Here he is in his own words:

Response from Joel Benton, Senior Deputy County Administrator/County Counsel

Sorry for the delay in responding to you. I was off of work yesterday, Thanksgiving, when you posted your article to your blog and subsequently emailed me that day for comment, spending some rare time with my family to celebrate the holiday. I didn’t read your email until this morning when I returned to work. 

 

I’d like to begin responding to your questions with some background information. The County Board of Commissioners sets the fees for all services provided by the County. They do so annually pursuant to a board order after a properly noticed public hearing. This fee schedule includes the fees for public records requests and the research required to respond to a public records request. The current fee, which has been the fee for as long as I can remember, for employee time to respond to a public records request is the Cost + Overhead of that employee. The fee schedule itself does not define what “cost + overhead” means. However, the Board of Commissioners enacted an ordinance which does define how cost is calculated - Jackson County Codified Ordinance Section 211.02. This Section, which was originally enacted in 1989 as part of the original codification of the Jackson County Codified Ordinances, and amended numerous times over the years, sets forth the definition of and methodology for determine cost for the purposes of fees. Without doing any research, my impression would be that the origins of the fee ordinance likely predates 1989.

 

It is pursuant to the board order and adopted ordinances that fees are calculated, including the fees for responding to public records requests. All employees of Jackson County, including myself, have an obligation to follow all duly enacted orders and ordinances of the County. 

 

With that said, I cannot disclose the existence or nature of any conversations I had with either Danny [Jordan, the County Administrator], the Board of Commissioners, or any other employee of Jackson County. I hope you appreciate my ethical obligation to keep attorney-client communications confidential.  I can say that I did not calculate the initial fee estimate provided to Mr. Krause as part of her public records request. That calculation was done by the personnel of the County who were responsible for providing the initial response. 

I become involved in this request when Mr. Krause requested a complete waiver of the fee for responding to her public records request. Pursuant to Board Order 22-18, the County Administrator is person designated as having the authority to make the determination for a waiver or reduction of the fees for a public records request. The County Administrator has delegated that authority to me, as County Counsel and Senior Deputy County Administrator. I did not confer with anyone else when I reviewed Mr. Krause’s request for a waiver or reduction of the fee for her request.

 

In general, when reviewing a request for a fee waiver or reduction, I rely upon the guidance provided by the Oregon Attorney General’s Manual of Public Records and Meetings. While not binding on local governments, the Manual is a very good resource upon which the courts have relied. Further, use of the Manual helps to ensure that all public records requests, including requests for waivers or reductions are treated in a fair and consistent manner. When responding to public records requests, including fee waiver or reduction requests, Jackson County does not look at the reasons for the request or who the person or entity is who is making the request. We solely rely upon the provisions of ORS Ch. 192, the Manual, applicable court decisions, and other interpretative materials to ensure our legal obligations and responsibilities comport with the law. I hope you can appreciate that the County takes responding to public records requests, and accompanying fee waiver requests, very seriously.

 

In response to your three questions:

 

1. As an initial matter, the County does not only waive public records request fees for the “media.” We apply the standards set forth in the Manual to determine if the request has the ability to disseminate the information to the public. In my email to Ms. Krause, I used the media as an example, as she indicated she was asking for the waiver, in part, because she intended to provide the materials to the media and/or was somehow asking for the waiver of the fees on behalf of local media. That response was not an in general response that the media or only the media gets fees waived or reduction.

 

The County does consider the media to include people who report on the County’s operations and issues via non-traditional means, including Facebook groups, blogs, and other web based formats. However, as I wrote in my response to Ms. Krause, the obligation is to demonstrate that a requestor can disseminate the records requested and is on the requestor. The mere existence of a website, Facebook group, or blog does not, in my opinion, demonstrate that the requestor has the ability to disseminate the information. If the mere existence of a website or Facebook group was the standard for reducing or waiving a fee, the exception set forth in the ORS to the authority to charge a fee, could easily swallow the authority to charge a fee, as there is no cost to create a Facebook group, for example. As to the extent and viewership of Ms. Krause’s web presence, or the presence of any other website, the County has no way to check as to whether or not the public is relying upon that web presence.

 

So, in response to your specific question – “on what basis does the county argue that a group the size and activity of the charter change group, with a website, Facebook, signature gatherers, etc. is not “media” doing meaningful public dissemination” – the County, and I, have no idea of what the size of the group of or the activity of the charter change group is. We, as an entity, do not have the means or resources to monitor such activities or groups. Thus, as Ms. Krause only identified the existence of the web presence, and did not provide any information to demonstrate that the web presence had the meaningful ability to disseminate the information, I had no ability to make the determination that the standards set forth in the Manual were satisfied for a fee waiver or reduction. 

 

2. Perhaps I misunderstood your questions, but the County is not opposed to fulfilling Ms. Krause’s public records request. The County is only looking to follow the duly enacted ordinances and orders of the Board of Commissioners and to follow the provisions of the ORS to ensure that all requests are treated in an equal and equitable manner. The County receives many public records requests, and almost as many requests for fee waivers and reductions for those requests. To treat Ms. Krause’s request for a fee waiver differently than, say, other requests for a fee waiver or reduction would be highly inappropriate. And, to waive or reduce the fee for Ms. Krause, based on what she provided in her request for her waiver, would set a standard that likely would leave the County approving a significant number of fee waiver requests. While the fee estimate for Ms. Krause’s request may seem high, we have public records requests that have estimated fees in the tens of thousands of dollars or even higher, which would likely be granted under the standards set by Mr. Krause’s waiver request. The County, simply put, does not have the resources to broadly waive fees in all cases.

 

As to the amount of time the County currently has into Mr. Krause’s request, that isn’t the standard by which the County reviews requests for fee waivers or reductions. The original estimate was 3 hours to gather, compile, and provide the records Mr. Krause requested. This is actual employee time to do so. Despite Ms. Krause’s beliefs to the contrary, there is no simple database to query to extract the information she has requested. For each year, the County will need to make three separate queries for each Commissioner and then compile that information into a spreadsheet. Because of the number of years in her request, that’s nearly 150 separate queries to perform along with the time to compile that information.

 

As to my time, I have a fairly de minimus amount, though I haven’t tracked it specifically. But, as a salaried employee, I am responsible for performing all of my duties and obligations, regardless of whether or not I am engaged in work more than 40 hours in a week. As such, my time spent responding to Ms. Krause, and now you, is at no additional cost to the County.

 

3. I’m not sure what you mean by the “strategy of demanding a charge to look up the salary data.” The methodology for estimating the cost to respond to Ms. Krause’s public records request is as set forth, as above, in the Board’s orders and duly enacted ordinance, under the authority of ORS 192. The County charges the full cost for any public records request, regardless of the content of the request or who is making the request, unless the requestor demonstrates that they meet the standards for a fee waiver or reduction.

 

I will conclude with a response to your “advice” that the County simply provide the requested information for free and blame this as a “pre-holiday” mistake. If I’m understanding what you wrote, I believe that would be highly inappropriate. That would be treating Ms. Krause’s request differently than other requests for non-legitimate reasons. That is asking the County to pick whom the County likes – in the sense that the County waives or reduces one person’s fee even if they don’t meet the standard and whom the County doesn’t like – in the sense that the County would deny another person’s fee waiver or reduction request. As such, I sincerely hope I misunderstood your “advice” and you aren’t asking the County to pick winners or losers based on the content of their speech. 

 

Joel 

Joel C. Benton

Senior Deputy County Administrator/County Counsel

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