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THEODORE R. KULONGOSKI
ATTORNEY GENERAL
J. Kristen Pecknold
Reeves, Kahn & Eder
P.O. Box 86100
Portland, Oregon 97286
DEPARTMENT OF JUSTICE
1162 Court Street NE
Justice Building
Salem, Oregon 97310
Telephoneo (503) 378-4-100
TDDo (503) 378-5938
December 11, 1995
THOMAS A. BALMER
DEPUTY ATTORNEY GENERAL
Re: Petition for Public Records Disclosure and Review of Denial of Fee Waiver:
Oregon Department of Fish and Wildlife
Dear Ms. Pecknold:
This letter is the Attorney General's order on your petition11 for disclosure of
records and for review of the denial by the Oregon Department of Fish and Wildlife
(ODFW) of your request for a full fee waiver under the Oregon Public Records Law,
ORS 192.410 to 192.505. By letter dated October 27, 1995, we understand that
ODFW agreed to make available all records and documents containing information
regarding cougar complaints, as well as any records and documents pertaining to
cougar population studies. ODFW also agreed to waive part, but not all, of its fee for
searching its files and gathering the information you requested. For the reasons that
follow, we respectfully deny your petition to order the agency to release the requested
records on the ground that the agency ·has agreed to release the records and, therefore,
the Attorney General lacks authority to compel disclosure. See ORS 192.450(1). We
further find that the agency's denial of a complete fee waiver was not unreasonable
and, therefore, respectfully deny your petition for a full fee waiver.
1. Disclosure of Public Records
Your petition requests the Attorney General to order ODFW to provide you
copies of three categories of records: 1) the standard form, if one exists, containing
11 Your petition was filed on behalf of your client, the Predator Defense Institute.
J. Kristen Pecknold
December 12, 1995
Page 2
questions ODFW routinely asks when a person contacts ODFW regarding cougar
encounters or sightings; 2) any documents pertaining to cougar population studies
conducted by ODFW during the last ten years; and 3) all records or documents
containing information regarding complaints or reports of cougar sightings or other
encounters, "including documents showing the names and addresses of all individuals
making or involved with these complaints and reports from January 1, 1994 to the
present."
We understand from Jim Greer, Assistant Director of the ODFW Wildlife
Division, that ODFW is willing to release all of the information you requested. As
Mr. Greer explained in his letter to you dated October 27, 1995, however, fulfilling
your request will take considerable time and effort by ODFW staff because the
documents are kept in 21 different district offices. Contrary to the suggestion in the
newspaper articles you included in your petition, Mr. Greer informs us that the
department does not yet have a uniform method for collecting reports related to cougar
sightings, nor does the department collect all of the documents related to those
sightings in one location or office. Rather, each district office keeps track of cougar
sightings and encounters for that district alone. In addition, each district is
responsible for maintaining all of the relevant documents related to those sightings and
encounters. Some district offices keep cougar information separate from other wildlife
reports, others do not.
You have requested all of the documents related to cougar sightings throughout
the state, i.e., from all 21 district offices. This will require each district biologist to
pull together all of the documents related to cougar sightings and forward it to the
Portland office. Those districts that routinely separate cougar information from other
wildlife reports will be able to provide the information quite readily. The districts that
do not currently separate cougar information, however, must search their files to pull
out all of the relevant documents. For those district offices that must separate the
information, the amount of time necessary to pull together the information specific to
cougars may be quite lengthy.
We understand from Mr. Greer that the department was waiting to hear from
you concerning the partial fee waiver before it began the lengthy process of collecting
the documents you requested. According to Mr. Greer, you have not contacted the
department, therefore it has not yet begun to search the 21 district office files for the
relevant documents. Because the department has indicated its willingness to release
J. Kristen Pecknold
December 12, 1995
Page 3
the information as soon as it hears from you and gathers the information from its 21
offices, you have not been denied access to the records. Thus, the Attorney General
lacks authority to order disclosure. See ORS 192.450(1).
2. Fee Waiver
ORS 192.440(4) allows agencies to furnish copies of public records:
without charge or at a substantially reduced fee if the custodian
determines that the waiver or reduction of fees is in the public interest
because making the record available primarily benefits the general
public.
It is important·to note that Oregon law does not mandate a fee waiver or reduction;
instead it makes the decision to waive or reduce fees discretionary with the public
agency. The legislative history demonstrates an intent to place a great deal of
discretion in the custodian of the records. See Attorney General's Public Records
Order, May 19, 1993, to Bruce E. Smith. Accordingly, we review an agency's denial
of a fee waiver not on how we might have responded, but rather on the basis of
whether we believe the agency's decision is reasonable.
ODFW's denial of a complete fee waiver is based upon its balancing of
competing public interests: the public interest in the department completing its regular
duties and functions versus the public interest articulated by your client. The
department determined that it would have to divert at least 50 hours of staff time to
fulfill your request. This estimate was based on the fact that the documents are not
kept in one location, but in the department's 21 district offices. Since the department
does not have a uniform, statewide method or procedure for collecting the information
you requested, it must ask each of its 21 district biologists to identify and retrieve the
relevant documents from their files. We also understand that the number of
documents that meet your request may be quite extensive. Each of these factors
support the department's discretion in denying a complete fee waiver. See ATTORNEY
GENERAL'S PUBLIC RECORDS AND MEETINGS MANUAL (1995) at 14.
Given the extent of time and expense to ODFW in searching files in 21 district
offices and the potential volume of the records requested, we conclude that the
J. Kristen Pecknold
December 12, 1995
Page 4
agency's decision not to charge for copying the requested records and to reduce the
fees for searching the records by 25 percent was not "unreasonable."
For these reasons, we respectfully deny your petition to compel disclosure and
deny your petition for a complete fee waiver.
ESH:JA:AV:JGGOCD6A
c: Jim Greer, ODFW
Sincerely,
ELIZABETH S. HARCHENKO
Special Counsel to the
Attorney General
