The News-Register staff

SALEM - In dealing with a public records request from the News-Register Publishing Co., PERS officials should have considered granting a fee waiver on public interest grounds, a Marion County judge has ruled.

In his decision, Judge Don Dickey turned away the agency's assertion that it lacked authority to consider fee waivers because its mission is legally limited to actions on behalf of PERS members.

The case began in June, when News-Register Publisher and Editor Jeb Bladine requested information from PERS relating to all public employees who had retired in the previous 12 months. PERS estimated processing such a request could cost as much as $1,000.

Under Oregon statute, the custodian of a public record may furnish copies without charge or at a substantially reduced fee if the custodian determines the intended use is in the public interest.

Bladine requested such a waiver, but PERS officials argued that waiving the fee would constitute an illegal diversion of funds, so they had no authority to do so.

They cited a statute mandating that money in the Public Employees Retirement Fund trust be used exclusively for the benefit of members and their beneficiaries. "We must, therefore, recover our actual costs in responding to public records requests and cannot waive recovery of them," PERS representative Stephen Rodeman wrote in an explanatory affidavit later submitted to the court.

Rodeman and others maintained that duty superseded provisions of Oregon's public records law.

The Oregon Attorney General's Office reviewed the case in August and sided with PERS. Deputy Attorney General Pete Shepherd said his office determined the trust-benefit statute trumped the fee-waiver law.

"The waiver, in effect, was contradictory to the duty to maintain that trust," he said.

Civil suits are both expensive and time-consuming, so most public records debates end with an opinion by the attorney general or a local district attorney. But Bladine said he didn't want an adverse precedent established for future petitioners.

"It was really a matter of principle," he said. "I didn't agree with the attorney general's opinion and I wasn't willing to let that stand."

In September, the News-Register filed suit in Marion County Circuit Court, alleging that PERS was in violation of not only public records law, but also of its own administrative rules, which specifically authorize the agency's director to allow fee waivers.

Dickey agreed, suggesting in his order that PERS claims the right to apply its administrative rules to some - more specifically, to its own members - but not all members of the public.

"It appears PERS would determine this rule's applicability on an ad hoc basis, depending only upon who made the application," Dickey wrote. "If PERS wished to decide the applicable rules under which it operates are invalid, it may take appropriate action to invalidate or withdraw them following the law."

Shepherd said the AG's Office has not yet consulted with PERS about whether to carry an appeal to higher courts.

While Dickey's order stipulated that PERS consider fee waivers, it didn't say it had to grant them.

But the agency may soon have to decide.

Bladine plans to submit an amended public records request, with changes reflecting the passage of time since his original filing. And he said he'll probably renew his request for a fee waiver.