FILE - City Hall in Portland, Ore., in an image made with a drone in September 2022. The city lost a case before the Oregon Court of Appeals attempting to keep phone numbers of city staff from becoming public.
MacGregor Campbell / OPB
Portland has suffered yet another legal defeat in its attempt to keep city records from the public.
Last week, the Oregon Court of Appeals ruled that the city was wrong to conceal employees’ personal cellphone numbers in records requested by the public. This leaves the city, which has decided not to ask the Oregon Supreme Court to review the case, on the hook for tens of thousands of dollars in legal fees.
The decision centers around a 2020 records request made by Alan Kessler, a Portland lawyer and public records advocate, for text message data sent to and from city phones.
Specifically, Kessler asked for the numbers of everyone who has sent a message to or received one from a city phone number, and the dates of those messages. He did not ask for the contents of the text messages.
The city told Kessler that, to complete the request, it would need to go through and redact all employees’ personal cellphone numbers that may come up in the search. Because of the extensive time it would take staff to complete these redactions, a city attorney estimated the records would cost Kessler more than $115,000.
In their explanation, city attorneys explained that staff phone numbers are considered information included in “personnel records,” which are exempt from disclosure under Oregon’s public records law.
The state appeals court disagreed. In their ruling, the three-person panel said that this exemption applies only when people make requests specifically for information contained in personnel records. It does not apply when people request other records that happen to contain information appearing in personnel records.
“We do not consider the city’s reading [of the state statute] to be a … logical reading,” the ruling reads.
The decision landed before the appellate judges after winding through the lower courts. Both the Multnomah County district attorney’s office and a county judge agreed that the “personnel records” exemption didn’t apply in this case.
According to city officials, the city will not be pursuing the case further. That means that, four years later, Kessler will receive his records.
On Wednesday, the city attorney’s office emailed all city employees to let them know that their personal phone numbers may be shared in Kessler’s records.
In a statement, city spokesperson Laura Oppenheimer said the city is prepared to comply with the appeals court ruling, but defended its stance. “The City of Portland has advocated for providing transparency about public business while protecting employees’ privacy,” she wrote.
Tim Cunningham, an attorney with Davis Wright Tremaine who represented Kessler in the appeals process, said he was pleased by the court’s ruling — but disappointed in the lengths Portland went to challenge his client’s request.
“It’s just another example of Portland being willing to waste taxpayer dollars to fight transparency,” Cunningham said.
Portland will be responsible for paying Cunningham’s attorneys fees, which he said could reach up to $100,000. Kessler had a different lawyer representing him in the case in the county courts. The city will have to pay nearly $35,000 to cover that attorneys fees. Cunningham noted that the city’s legal fees also include the salaries of city lawyers assigned to argue this case.
“These appeals aren’t cheap,” he said. “If the city is going to continue to pay lawyers to challenge citizens for documents that should be publicly available … well, it seems incredibly wasteful to me.”
This case is only the latest in Portland’s costly work to safeguard city records from the public. In 2022, the city paid $250,000 to settle a lawsuit that accused the city of wrongly withholding information about homeless encampment reports. Later that year, the city paid out $200,000 in attorneys fees after a failed challenge to a records request regarding how utility bureaus handle ratepayer money. And earlier this year, the city spent nearly $167,000 to settle another legal challenge involving text messages being withheld through a records request.
Cunningham isn’t certain that the appeals case sets any legal precedent for others to follow. That’s because the Legislature agreed to tweak the state public records law last year in what appears to be the city’s favor. The changes remove the word “personnel” from the records exemption rule that protects “dates of birth and other telephone numbers contained in personnel records.”
This change, Cunningham noted, could make it easier for Portland attorneys to argue that employees’ personal phones must be redacted from all records released to the public. He said he “wouldn’t be surprised” if the city lobbied for this statute change while Kessler’s case was underway.
Portland officials did not submit testimony on the bill that resulted in this law change last year. But, according to legislative records, the bill was introduced at the request of Oregon League of Cities, a group that lobbies for policies on behalf of Oregon cities. It has close ties to Portland; Mayor Ted Wheeler sits on the league’s board.
Wheeler did not respond to a request for comment.
City attorneys promised city staff that this law change will protect their phone numbers from being shared in the future. In the email sent to city employees Wednesday, Deputy City Attorney Fallon Niedrist wrote, “Going forward, the statute is clear: Employees’ personal information, including cell phone numbers, is exempt from disclosure and may be redacted in response to future record requests.”