On April 21, a judge agreed to settle a lawsuit between the city of Bend and the Central Oregon Peacekeepers, an activist group formed to protect social justice protests. The ruling ends a year-long legal battle and orders Bend to pay $18,000 to cover the Peacekeepers’ attorney fees.
The process began in January 2021 when Peacekeepers member Mike Satcher requested public records from the city regarding two 2020 protests. In the first protest on August 12, 2020, more than 100 people gathered to prevent officers US Immigration and Customs Enforcement to detain two undocumented men, and the second involved a confrontation between Trump supporters and Black Lives Matter protesters on October 3, 2020.
Satcher said he requested the documents in response to the Emergency Crisis Response Team deployment and surveillance tactics allegedly used during the August protest, and the failure of the arrest of Jake Strayer after brandishing a gun at protesters during the October demonstration.
“We wanted to get to the bottom of what was causing all of this. Why was there this overreaction to the ICE protest? Why has no one been arrested, even though there have been so many attacks, including Jake Strayer pulling that gun? Why did the Bend police choose not to arrest anyone on October 3? That’s why we asked for the records,” Satcher told Source Weekly.
The city charged Satcher $3,600 for the request, which contained more than 6,000 emails and text messages from Bend police, elected officials and city staff. Bend City Attorney Mary Winters described it as an extremely broad request at the time and told the OPB it could set a precedent for large and costly public records requests.
“There’s no denying it was a broad request,” Satcher said. “What we have asked for are communications between city officials and, for example, members of the People’s Rights Militia, or the 3% Militia. We have requested communications, e-mails to or from police officers regarding [the Central Oregon Peacekeepers].”
The city denied a request for a fee waiver, usually granted if the leaked documents are deemed to be in the public interest. The Peacekeepers appealed the city’s rejected fee waiver to Deschutes County District Attorney John Hummel, who sided with the Peacekeepers and ordered the city to deliver the records for free on March 4. 2021. The city complied, but sued Satcher to recover the $3,600.
“The City immediately released the requested records. It was thousands of pages. The city has not withheld any cases pending the outcome of the trial,” Bend communications director Anne Aurand wrote in a statement. “Second, for the city, the case involved the district attorney’s incorrect legal analysis of the charges. It was not the applicant.
The ACLU of Oregon stepped in to represent Satcher in the lawsuit and a counterclaim against the city that allegedly found the fee estimate excessive. The City argues that Hummel’s March 4 decision is invalid, and Aurand said a separate decision by Hummel upheld their rate structure as constitutional on June 29, 2021.
“The city agreed to settle this case because the district attorney later agreed that the city’s public record fee structure was authorized by Oregon law. Whether the fee structure of the City is legally valid was one of the main questions the City sought to answer by taking legal action,” Aurand wrote.
The asserted fee structure bills individuals for the hourly wage and benefits of records clerks throughout the response to a request. The ACLU and the Peacekeepers, however, consider it a victory for access to public records, which can be byzantine and financially onerous.
“The Oregon Public Records Act guarantees that all persons have the right of access to public records in Oregon, but public agencies often frustrate this guarantee by charging arbitrary and excessive fees for the production of records , and then showing favoritism when deciding whether a plaintiff is entitled to have these arbitrary and excessive fees waived (or not), ”said Rian Peck of Visible Law and Vice Chairman of the ACLU Lawyers Committee of Oregon in a statement.
Satcher said the Peacekeepers plan to release the entire cache of documents to the public after going through and redacting any potentially sensitive information. The records themselves have already confirmed some of the peacekeepers’ concerns, Satcher said. A Bend Police Department after-action report suggests CERT was deliberately deployed during the ICE protest, rather than simply being diverted from training during a call for all available officers, as Bend PD had previously said so. Records also show that the BPD requested background checks on at least two activists at that protest.
“I just hope that somewhere in the world someone took an interest in the subject of public records as a result of all of this,” Satcher said. “These records already belong to us, so we should ask for them all the time.”