Mr. Gutman:

Your October 1 order dismisses my petition under ORS 192.427. That section does not apply to my petition, and your order does not claim the one fact that would make it apply.

ORS 192.427 begins: "In any case in which a person is denied the right to inspect or to receive a copy of a public record in the custody of an elected official, or in the custody of any other person but as to which an elected official claims the right to withhold disclosure, no petition to require disclosure may be filed with the Attorney General or district attorney." The section operates in one case: a person denied a record. Everything in it, the custody clause included, lives inside that condition.

I have not been denied a record. On September 22 the Office of the Governor wrote: "We estimate the cost to collect, review, and produce the records to be $572.50." On September 24 it wrote: "Please send a check payable to 'State of Oregon' in the amount of $572.50." The office offered me the records at a price. No one in it, and not the Governor, has denied inspection or claimed a right to withhold anything. Your order does not say otherwise. It says I challenged "a fee waiver decision." That is correct, and it is not a denial of a record.

What was denied was a fee waiver. The statute assigns that to you. ORS 192.324(6): "A requester who believes that there has been an unreasonable denial of a fee waiver or fee reduction may petition the Attorney General or the district attorney in the same manner as a requester who petitions when inspection of a public record is denied under ORS 192.311 to 192.478. The Attorney General, the district attorney and the court have the same authority in instances when a fee waiver or reduction is denied as when inspection of a public record is denied." That subsection gives you authority. It does not convert a fee-waiver denial into a denial of inspection, and it does not say the Governor's records are exempt from it. Only ORS 192.427 removes your authority, and its condition is not met.

Your order states: "That authority does not include the authority to review decisions made by elected officials." Those words are not in ORS 192.324(6), ORS 192.411, or ORS 192.427. They are copied from the October 2, 2014 order you cite, which concerned a fee waiver denied on behalf of a named legislator. The statute speaks of a person "denied the right to inspect or to receive a copy of a public record." You substituted "decisions made by elected officials," a phrase broad enough to cover a decision that denied me nothing, and then found that phrase in my case. The statute's own words are not there to be found. Your September 24 order quoted ORS 192.427 with the words "after a claim of right to withhold disclosure by an elected official" replaced by an ellipsis. Your October 1 order does not quote the section at all.

This is not a disagreement about interpretation. ORS 192.427 states its own condition in its first clause. The condition is a denial. There has been none. Citing the section to a petition where nothing was withheld is not an application of the statute. It is cover for an event that never happened.

I understand that you will not follow the statute. Marion County Circuit Court is where I will see you next.

Robert Samuel White
P.O. Box 334, Reedsport, Oregon 97467