Although the public records lawsuit against Grant County Sheriff Glenn Palmer was dismissed after the records were released, a judge will now decide whether he must pay more than $78,000 in attorney fees to the party that filed the suit.
In a statement of attorney fees filed in Grant County Circuit Court Nov. 17, attorney Brad Daniels, on behalf of the plaintiff, Oregonian Publishing Company, argued the news organization is entitled to $78,157.50 in attorney fees because the lawsuit prompted the release of public records that had previously been withheld.
Daniels said in the statement The Oregonian — and reporter Les Zaitz, who has since retired from The Oregonian and is now the publisher and editor of the Malheur Enterprise — began requesting public records from Palmer and the Grant County Sheriff’s Office in February 2016, consistent with First Amendment press protections and pursuant to Oregon public records law. Daniels said the defendants — Palmer, the sheriff’s office and civil deputy Sally DeFord — did not provide the documents requested, including email, phone and other records.
In May, the plaintiffs filed a complaint in circuit court requesting a judge to declare certain records to be public records and to compel their disclosure. In August, Judge William D. Cramer Jr. issued a temporary restraining order preventing the sheriff’s office from deleting any public emails, in response to a July request by the plaintiffs.
“Defendants’ complete lack of cooperation required Plaintiffs to initiate this suit to vindicate the public’s basic right to be informed of the conduct of government officials,” Daniels said in the Nov. 17 statement. “Even after commencing this litigation, Plaintiffs continued to face delays and circumstances that required the expenditure of significant resources, including delays in production and discovery, motion practice, and most significantly, evidence that suggested that public records had been destroyed.”
After a series of correspondence between the parties related to the lawsuit, and depositions of Palmer and DeFord, Daniels said in the statement the plaintiffs obtained all the non-exempt documents they requested and, thus, were entitled to reasonable attorney fees as the prevailing party in the case.
Cramer had dismissed the lawsuit Nov. 3 at the request of the defendants’ attorney, D. Zachary Hostetter — after Daniels admitted court intervention was no longer necessary because the documents had been released — but the dismissal stated it did not preclude the plaintiffs from seeking attorney fees.
In the Nov. 17 statement, Daniels said the suit was filed under Oregon Revised Statute 192.450(2) and that ORS 192.490 applies to such actions. The latter states, in part, “If a person seeking the right to inspect or to receive a copy of a public record prevails in the suit, the person shall be awarded costs and disbursements and reasonable attorney fees.”
Daniels said in the statement the plaintiff is the prevailing party when records are disclosed after a lawsuit has been filed, and he cited several similar Oregon cases in which the plaintiffs were awarded attorney fees.
“Disallowing all fees in this case would simply reward recalcitrance, encourage gamesmanship on the part of public bodies, and undermine the very goals of transparency and open government that the Public Records Law and its one-way attorney fee provision intend to foster,” Daniels said in the Nov. 17 statement.
As of Dec. 5, the defendants have not filed a response to the plaintiffs’ request for fees in circuit court. Hostetter did, however, file a brief request for attorney fees on behalf of DeFord.
In an exhibit submitted with a Nov. 18 statement for attorney fees, Hostetter said DeFord is entitled to $19,106 because “there was no objectively reasonable basis for plaintiffs to sue” her. Hostetter said ORS 192.490(1) allows a person to file a claim only against a “public body,” which DeFord is not. He said DeFord is not a custodian of public records, nor an elected official who has custody of public records, as defined by the previously mentioned law.
Daniels filed an objection Nov. 30 to DeFord’s attorney fee request, stating it should be denied because there was a reasonable basis for naming her in the suit and that she was not the prevailing party, in addition to procedural errors.
Neither Palmer nor The Oregonian have responded to emailed questions about the lawsuit.