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A TOUGH LESSON: Email exchange shows Clatsop County DA's reluctance to provide public information to UO student.

PMG ILLUSTRATIONIn early 2018, journalism students at the University of Oregon sent public records requests to all 36 district attorneys in Oregon, seeking specific records about how the DAs themselves handle public records cases. Most were helpful. But one of district attorneys, Clatsop County's Josh Marquis, was at times defensive and hostile toward William Mallery, the then-UO student journalist who sent him a public records request. Marquis called the student's request as "spam" and offering some unsolicited advice about journalism and the law.

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The emails mention the Catalyst Journalism Project is a reporting program at the University of Oregon School of Journalism and Communication that teaches students to use investigative reporting and solutions journalism.

Here's the unedited email exchange between Marquis and the student.

• Feb. 1, 2018: The student sent the original public-records request to Marquis. The request followed a standard format for such requests and was similar to those sent by other UO journalism students to all district attorneys in Oregon.

From: William C Mallery

Sent: Thursday, February 1, 2018 12:34 PM

To: Josh Marquis

Subject: Public Records Request

Joshua Marquis P.O. Box 149, Astoria, OR 97103

2-1-2018

Dear Mr. Marquis

My name is William Mallery, and I'm a journalist at the University of Oregon. On behalf of the Catalyst Journalism Project and myself, I am filing this request for public records under ORS 192, the Oregon public records law. This request seeks copies of the following public records in the custody of your office: Any and all public records petitions received by your office from January 1, 2013, to the present. These petitions seek review of denials to inspect public records, as described in ORS 192.450 and 192.460. Any and all orders issued by your office in response to these petitions.

We ask that these records be provided in electronic form, if available.

We seek a fee waiver because this request is in the public interest, in accordance with ORS 192.440(5), which states that fees for requests may be waived if doing so "is in the public interest because making the record available primarily benefits the general public." This request fits that definition. The Oregon Public Records Law is an important tool for ensuring that Oregon government operates with transparency. As a district attorney, you play an important role in upholding the public records law. Petitioners who believe they have been denied access to public records turn to you and your office, seeking a review of the denial. The records we seek will help inform the public as to how the office of District Attorney is carrying out its duties under the Oregon public records law. The records we seek will be part of a story that will be published in a general-interest news publication. If you have any questions, please feel free to contact me.

Sincerely, William C Mallery and the Catalyst Journalism Project

• Feb. 2: Marquis responded the next day. He didn't acknowledge the student's detailed case for a fee waiver and suggested the student was demanding records, which was not the case.

From: Josh Marquis

Date: February 2, 2018 at 1:20:50 AM PST

To: William C Mallery

Cc: Tom Bennett

Subject: RE: Public Records Request

COURTESY PHOTO: KOIN 6 NEWS - Clatsop County District Attorney Josh Marquis though a student's request for public records was spam. I am out of my office on a family emergency.

This appears to be a "form request" directed to every DA in the state. My office receives and handles dozens of requests and unlike the state DOJ, handles this without funding or compensation.

What is the "Catalyst Project?" Does it recieve outside funding? From where?

This review will take hours and your declarative statement that this "is in the public interest" is not persuasive.

This will require significant personnel time which we will bill you.

My county has a policy and very broad "shotgun" and "boilerplate" demands for public records.

Your email is being forwarded to the Clatsop County Manager's Office to Tom Bennett, who reviews such requests.

JOSHUA MARQUIS DISTRICT ATTORNEY

• Feb. 23: Three weeks goes by and nothing follows from Marquis. The student sent Marquis a reminder.

From: William C Mallery

To: Josh Marquis

Date: Feb 23, 2018, 9:54 AM

Subject: Public Records Request from 2/1

Dear Mr. Marquis,

My name is William Mallery and I'm a journalist at the University of Oregon. On behalf of the Catalyst Journalism Project and myself, I filed a public records request with you on Feb. 1. You responded that you were forwarding the request. I have not heard anything else about this request. As you know, Oregon law sets deadlines for responding to public records requests. I am again asking you to disclose the records I seek.

Sincerely, -William Mallery and The Catalyst Journalism Project

• Feb. 23: Marquis didn't like being reminded about the request. Within the hour, he sent two emails to the student, calling the public-records request "spam." He also mischaracterizes the student's original request and insists the student re-send it. Under state law, Marquis should have responded directly to the original request without demanding this extra step from the student.

From: Josh Marquis

Date: February 23, 2018 at 10:07:37 AM PST

To: William C Mallery

Subject: RE: Public Records Request from 2/1

PMG ILLUSTRATIONI responded to your spam "public records request." In case you were not aware under ORS 192.500 District Attorneys review public record request denials for agencies below the state level.

If you are still interested you should send it to me again, specifically say what you want. "All records about everything" isn't going to cut it.

And I never got a response to my question of what is the "Catalyst Journalism Project"? I was a journalism student and reporter at the UofO many years ago.

What is its source of funding? The University is also a public agency and also subject to public records requests.

Joshua Marquis District Attorney Clatsop County

From: Josh Marquis

To: William C Mallery

Date: Feb 23, 2018, 10:37 AM

Subject: RE: Public Records Request from 2/1

Mr. Mallery:

A colleague reminded me that you are apparently looking for DENIALs of public records requests made to DA's offices.

If that is true and THAT is what you want I can do a hand search through the non-electronic paper files of my office. I personally make those decisions and I don't think I have EVER (in the 24 years I've been DA) denied a request for public records.

My best guess is it will cost about $60 to do a search to see if there are in fact any, since my recollection is your request went back quite a ways.

Please advise me if that is what you are in fact looking for and if so please send a check for half that amount to the Clatsop County DA's Office, PO Box 149, Astoria, OR 97103 along with your records request. The County policy on matters that require payment for copying public records is that the requestor pay 1/2 the amount upfront.

Joshua Marquis District Attorney Clatsop County

• Feb. 26: Three days later, the student restates his original public records request in an effort to correct Marquis' mischaracterization of it.

From: William C Mallery

To: Josh Marquis

Date: Feb 26, 2018, 12:51 PM

Subject: RE: Public Records Request from 2/1

Mr. Marquis,

Thank you for your responses. I wanted to follow up to make sure my original request is clear.

I am seeking petitions for public records filed with your office by people who have been denied public records by local public bodies in Clatstop County, and I am seeking all public records orders issued by your office in response to petitions. The dates covered by my request are January 1, 2013, to the present. I am not seeking public records requests filed with your office, or your response to records requests filed with your office. If you have any questions, please refer to my original request. You will note that I am aware that the district attorney reviews public records below the state level, as I cited the statutes which discuss this review.

You also characterized my request as spam. I have sent only one similar request to another district attorney. Other journalists working on this reporting project have sent requests to other district attorneys. The fact that similar requests went out does not invalidate my request, and I look forward to your office's response. As a UO former journalism student, you appreciate the importance of the public records law and the role of journalists to make sure the law is being followed. That's why I seek a public interest fee waiver. As I said in my original report, this research will be part of a published story about how the public records law is being carried out.

In a previous email, I sent a link about the Catalyst Journalism Project, which answer the questions you have. Here the link again. https://journalism.uoregon.edu/catalyst/

If you have any further questions, please feel free to contact the project's co-directors.

Sincerely,

William Mallery

• Feb. 26: Less than two hours later, Marquis responds, again mischaracterizing what the student is seeking, and incorrectly claims the student didn't make a case for a public-interest fee waiver.

From: Josh Marquis

To: Will Mallery

Date: Feb 26, 2018, 2:33 PM

Subject: RE: Public Records Request from 2/1

I think I now understand.

You want EVERY public records request that has been made to my office from any source for the last 5 years.

Simply because you are a University program does not give rise, in my opinion, to a fee waiver. You haven't even said what the purpose of this is, other than a school project.

Oregon District Attorneys are in no way compensated for performing this function. The State Attorney General has dedicated staff positions to handle these requests, I personally handle them in my county, as part of my other duties. We do not electronically store them, so the search request will require me and/or my executive assistant going through closed files. I would anticipate at least 5-10 hours of work and that is considerably more than what I had Originally thought you wanted — denied public records requests.

My county requires a 50 percent deposit on actual and reasonable costs, which I would estimate to be $150 for what you are requesting.

Upon a deposit of $75 we will begin the hand search required.

The address continues to be PO Box 149, Astoria, OR 97103

Joshua Marquis District Attorney

• March 2: The student once again attempts to correct Marquis' misreading of the request, and again restates the case for a fee waiver.

From: Will Mallery

To: Josh Marquis

Date: Mar 2, 2018, 3:38 PM

Subject: RE: Public Records Request from 2/1

Mr. Marquis

Thank you for your email of Feb. 28. A check for $150 to cover the entire estimate is on its way to your attention.

In your email, your characterization of what we seek and why we seek it is not correct. You said, "You want EVERY public records request that has been made to my office from any source for the last 5 years."

That is not correct. My request seeks the following records: "Any and all public records petitions received by your office from January 1, 2013, to the present. These petitions seek review of denials to inspect public records, as described in ORS 192.450 and 192.460. [And] any and all orders issued by your office in response to these petitions."

In your email, you said that I seek a public interest waiver of fees because this is a university program. You also said, "You haven't even said what the purpose of this is, other than a school project."

That is not accurate. My request for a public fee waiver was included in the original request and remains the same: "We seek a fee waiver because this request is in the public interest, in accordance with ORS 192.440(5), which states that fees for requests may be waived if doing so "is in the public interest because making the record available primarily benefits the general public." This request fits that definition. The Oregon Public Records Law is an important tool for ensuring that Oregon government operates with transparency. As a district attorney, you play an important role in upholding the public records law. Petitioners who believe they have been denied access to public records turn to you and your office, seeking a review of the denial. The records we seek will help inform the public as to how the office of District Attorney is carrying out its duties under the Oregon public records law. The records we seek will be part of a story that will be published in a general-interest news publication."

I look forward to the disclosure of these records. Thank you again for your help. Have a great weekend, -William Mallery

• March 2: In response, Marquis uses sarcasm to lecture the student on his own college journalism career and again argues about what records the student is seeking. The reply shows that, after a month has gone by, Marquis seems not to have read the original request.

From: Josh Marquis

Date: March 2, 2018 at 4:27:09 PM PST

To: William C Mallery

Subject: RE: Public Records Request from 2/1

Dear Mr. Mallery:

Upon receipt if your check I will going through the paper files in which we keep public records requests.

I was a journalism student, an editor at the DAILY EMERALD and the Chairman of the first DAILY EMERALD independent board of directors. I have been a major advocate through the decades for open records.

PMG ILLUSTRATIONThe State Attorney General recently had a "task force" which failed to include a single one of the state's 36 elected District Attorneys, despite the fact we do the overwhelming majority of public records requests. The law is virtually unenforceable absent access to legal counsel and if you are really interested in opening up public records you might examine the policy implications of the current ORS 192.500. My office, and to my knowledge, none of 35 colleagues, are actually funded to provide this service, so we squeeze it in along with the remaining of our funded statutory duties.

I'm really confused by the distinction you make between this characterization I made: "You want EVERY public records request that has been made to my office from any source for the last 5 years."

AND this explanation you offer of what you say you want: "Any and all public records petitions received by your office from January 1, 2013, to the present. These petitions seek review of denials to inspect public records, as described in ORS 192.450 and 192.460. [And] any and all orders issued by your office in response to these petitions."

I've only practiced law for 37 years so maybe I don't get it, but these sound like exactly the same things.

I will start gathering the requests my office has received from citizens complaining or seeking local governments to disclose various information to them. My "orders" are always in the form of advisory letters to the local agency, virtually always telling them they need to disclose the records. Since the current law does not grant any actual enforcement authority, I have no idea — except through further correspondence with the complainant — if the local governments actually DO comply.

Due to a very small administrative staff it will take me two weeks to furnish you with copies of this 5 years of requests and responses.

Joshua Marquis District Attorney Clatsop County

Marquis' office eventually sent the records.


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