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Matter of Record

The City of Bend dropped a lawsuit that would’ve recouped costs for a large public records request


On April 21 a judge agreed to settle a lawsuit between the City of Bend and the Central Oregon Peacekeepers, an activist group formed to protect social justice protests. The decision brings an end to a year-long legal fight and orders Bend to pay $18,000 to cover the Peacekeepers’ attorney fees.

The process started in January 2021 when Mike Satcher, a member of the Peacekeepers, requested public records from the City in regard to two 2020 protests. In the first protest on Aug. 12, 2020, over 100 people gathered to stop U.S. Immigration and Customs Enforcement agents from detaining two undocumented men, and the second involved a confrontation between Trump supporters and Black Lives Matter Protestors on Oct. 3, 2020.

Satcher said he requested the documents in response to the deployment of the Crisis Emergency Response Team and the surveillance tactics allegedly used in the August protest, and the failure to arrest Jake Strayer after he brandished a revolver at protestors in the October protest.

“We wanted to get to the bottom of what was causing all of that. Why was there this overreaction to the ICE protest? Why was nobody arrested, even though there were so many attacks, including Jake Strayer pulling that gun? Why did Bend police choose not to arrest anybody on October 3? That's why we made the request for the records,” Satcher told the Source Weekly.
  • Nicole Vulcan
The City billed Satcher $3,600 for the request, which contained over 6,000 emails and texts sent by Bend Police, elected officials and City staff. Bend city attorney Mary Winters described it as an extremely broad request at the time, and told OPB it could create a precedent of large and costly public records requests.

“There's no denying the fact that it was a broad request,” Satcher said. “What we asked for were communications between city officials and, for example, members of the People's Rights militia, or the 3% militia. We asked for communications, any emails to or from police officers about [the Central Oregon Peacekeepers].”

The City rejected a request to waive the fees—typically granted if the documents released are deemed to be in the public interest. The Peacekeepers appealed the City’s rejected fee waiver to Deschutes County District Attorney John Hummel, who sided with the Peacekeepers and ordered the City to deliver the records for free on March 4, 2021. The City complied, but sued Satcher to recover the $3,600.

“The City immediately released the requested records. This was thousands of pages. The City did not withhold any records pending the outcome of the lawsuit,” Bend Communications Director Anne Aurand wrote in a statement. “Second, for the City, the case was about the District Attorney’s incorrect legal analysis related to fees. It was not about the requestor.”
The ACLU of Oregon stepped in to represent Satcher in the lawsuit and a counterclaim against the City that would’ve declared the fee estimate excessive. The City maintains that Hummel’s March 4 decision is invalid, and Aurand said a separate decision from Hummel affirmed their fee structure is constitutional on June 29, 2021.

“The City agreed to settle this case because the District Attorney subsequently acknowledged the City’s public records fee structure is authorized by Oregon law. Whether the City’s fee structure is legally valid was one of the primary questions the City was seeking to answer by filing suit,” Aurand wrote.

The fee structure this affirmed bills people for the hourly salary and benefit cost of records clerks over the course of fulfilling a request. The ACLU and Peacekeepers, however, consider it a win for access to public records, which can be byzantine and financially burdensome.
“Oregon’s Public Records Act guarantees that all people have the right to access public records in Oregon, but public bodies often thwart that guarantee by charging arbitrary and excessive fees for producing the records, and then by playing favoritism when deciding whether a requester is entitled to have those arbitrary and excessive fees waived (or not),” said Rian Peck of Visible Law and Vice Chair of the ACLU of Oregon Lawyers Committee in a statement.

Satcher said the Peacekeepers plan to release the entire cache of documents to the public after they go through and redact any potentially sensitive information. The records themselves have already confirmed some of the Peacekeepers’ concerns, Satcher said. An after-action report from the Bend Police Department suggest CERT was deliberately deployed at the ICE protest, rather than simply being diverted from training in a call to all available officers as Bend PD previously claimed. Records also show BPD sought background checks for at least two activists at that protest.

“I just hope that somewhere, someone out there in the world has gotten interested in the topic of public records as a result of all of this,” Satcher said. “These records already belong to us, so we should be asking for them all the time.”

About The Author

Jack Harvel

Jack is originally from Kansas City, Missouri and has been making his way west since graduating from the University of Missouri, working a year and a half in Northeast Colorado before moving to Bend in the Spring of 2021. When not reporting he’s either playing folk songs (poorly) or grand strategy video games,...

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