(1)(a) The Public Records Advocate shall provide facilitated dispute resolution services when requested by a person described in subsection (2) of this section or by a state agency under the conditions described in subsection (3) of this section.

(b) The Public Records Advocate may provide facilitated dispute resolution services when requested by a person described in subsection (6) of this section and a city.

(2) A person may seek facilitated dispute resolution services under this section when seeking to inspect or receive copies of public records from a state agency and the person:

(a) Has been denied access to all or a portion of the records being sought;

(b) Has been denied a fee waiver or reduction in fees after asserting under ORS § 192.324 (5) that a fee waiver or reduction of fees is in the public interest; or

(c) Received a written fee estimate under ORS § 192.324 (4) that the person believes exceeds the actual cost to be incurred by the public body in producing the requested records.

(3)(a) A state agency may seek facilitated dispute resolution services under this section if, in response to a request for public records, the agency asserts:

(A) That the records being sought are not public records;

(B) That the records being sought are exempt from mandatory disclosure; or

(C) That the agency is, under ORS § 192.324, entitled to the fees the agency is seeking in order to produce the records being requested.

(b) A person seeking to inspect or receive copies of public records may opt out of facilitated dispute resolution services being sought by a state agency by giving written notice of the requester’s election within five days of the requester’s receipt of the agency’s request for facilitated dispute resolution. If written notice is given under this paragraph, the state agency may not determine under subsection (4)(a) of this section that the person seeking to inspect or receive copies of public records has failed to engage in good faith in the facilitated dispute resolution process.

(4) Notwithstanding any other provision of ORS § 192.311 to 192.478:

(a) The failure of a person seeking to inspect or receive copies of public records to engage in good faith in the facilitated dispute resolution process described in this section upon being authorized to do so under subsection (2) of this section shall be grounds for the state agency to deny the request and refuse to disclose the requested records.

(b) The failure of a state agency to engage in good faith in the facilitated dispute resolution process described in this section after a public records requester seeks facilitated dispute resolution services under subsection (2) of this section shall be grounds for the award of costs and attorney fees to the public records requester for all costs and attorney fees incurred in pursuing the request after a good faith determination under subsection (5) of this section.

(5)(a) Either party to the facilitated dispute resolution may request that the Public Records Advocate make a determination concerning whether a party is acting in good faith for purposes of applying the remedies described in subsection (4) of this section.

(b) A determination by the advocate that a party failed to engage in good faith facilitated dispute resolution and an award of costs and attorney fees are subject to review by the Circuit Court of Marion County as a proceeding under ORS § 183.484.

(6) In the case of a person seeking to inspect or obtain copies of public records from a city, either the person seeking records or the city may seek facilitated dispute resolution services under this section, but only if both the person seeking records and the city agree to have the Public Records Advocate facilitate resolution of the dispute and the advocate consents to facilitated resolution of the dispute. A dispute described in this subsection is not subject to subsections (4) and (5) of this section.

(7) Facilitated dispute resolution shall be requested by submitting a written request for facilitated dispute resolution and such other information as may be required by the Public Records Advocate. Facilitated dispute resolution between parties shall be conducted and completed within 21 days following receipt by the advocate of the request for facilitated dispute resolution. The facilitated dispute resolution period may be extended by unanimous agreement among the public records requester, the public body and the advocate.

(8) If the facilitated dispute resolution results in an agreement between the public records requester and the state agency or city, the advocate shall prepare a written document memorializing the agreement. The written agreement shall be executed by the public records requester and an authorized representative of the state agency or city. The written agreement shall control the resolution of the records request. [2017 c.728 § 2]

[1975 c.308 § 5; renumbered 192.418 in 2017]