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  1. #1

    Default Can You Be Charged Copying Fees for Discovery Materials

    My question involves a traffic ticket from the state of: Oregon

    Discovery for traffic citations in Oregon is codified in ORS 153.076(3) and ORS 135.815. The former simply says that rules of discovery apply to violations and the actual rules are spelled out in the latter. In the rules of discovery, it states that "the district attorney shall disclose..." (emphasis added), and then goes on to list the normal discovery items we would expect.

    Portland City police, pursuant to Portland City Code 3.20.360, have established fees for providing Officer notebook entries, written statements, officer training records, SMD maintenance records, and SMD calibration certificates among other fees for other documents. In addition, requests and payment are to be made to the "Portland Police Traffic Discovery Desk, attn Tom Larson", not the DA.

    This doesn't seem right. ORS 135.815 says "Shall", which is a very specific word in the legal world, and given that there are no caveats or mentions of fees it seems that a city may not establish a fee system. The city is supporting their fees with ORS 192.440(3) (I actually think they mean paragraph 4 here). But it seems that this statute is for normal FOIA requests and is overridden by the very specific discovery request statute.

    Fees include: Officer training records: $10, SMD maint records: $8.50, SMD Calibration Certificate: $8.50. While there are fees for providing officer notes ($8.50), there is no mention of the officer's sworn statement.

    Any thoughts? I have scans of the pages the clerk give out with all of the fees and instructions, but I'm not allowed to upload attachments. I'll get them attached as soon as I get that feature enabled.

  2. #2
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    Default Re: Can You Be Charged Copying Fees for Discovery Materials

    A public records request, submitted to a police department, is not a discovery request submitted to a prosecutor.

  3. #3

    Default Re: Can You Be Charged Copying Fees for Discovery Materials

    So would a logical conclusion be that this police department is doing disservice by providing this information? It seems that I should just ignore these instructions to obtain discovery materials and go directly to the prosecutor or DA. It seems pretty disingenuous to have a "Traffic Discovery Desk" but really process requests as public records requests.

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    Default Re: Can You Be Charged Copying Fees for Discovery Materials

    No. A police department does the public a service by making clear what costs somebody will incur for making a public records request. The mere fact that something is a public record does not mean that you can compel a prosecutor to get a copy for you.

  5. #5

    Default Re: Can You Be Charged Copying Fees for Discovery Materials

    This doesn't make sense to me. I'm not making a public records request, I'm making a discovery request per ORS 135.815. The fact that discovery information may also be a public record doesn't make requesting it from a prosecutor a public record request. It seems that ORS 135.815 in fact does mean that I can compel a prosecutor to provide me a copy of the evidence that will be used against me. Yes, the statute does say, " the district attorney shall disclose to a represented defendant the following material and information within the possession or control of the district attorney", but of course this information is within possession/control of the DA or they wouldn't have a case to bring. I don't see what I'm missing here.

  6. #6
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    Default Re: Can You Be Charged Copying Fees for Discovery Materials

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    Any thoughts?
    I can offer a few thoughts, but keep in mind that I have no personal experience with Oregon infraction procedures.

    In Washington State we can get discovery from the prosecuting authority free of charge but infraction rules limit those materials to only 3 categories. Before I knew about discovery I used to go to the court and get copies of records for nominal fees (like $2 or so).

    I’m thinking that your question might be answered by the last sentence of the Portland City Code you referenced above: “No fee shall be charged to those agencies (or their representatives) who request such services for official use and who have as a primary organizational responsibility the apprehension, prosecution, or the direct supervision of the parole or probation, of criminal offenders.

    To me that appears to mean that the “Portland Police Traffic Discovery Desk” is available for the prosecution to obtain discovery materials at no charge and then pass along whatever materials they intend to use at trial to the defense upon request at no charge. So in other words it is a records desk for public use and a discovery desk for use by prosecution.

  7. #7

    Default Re: Can You Be Charged Copying Fees for Discovery Materials

    Quote Quoting searcher99
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    So in other words it is a records desk for public use and a discovery desk for use by prosecution.
    This makes sense to me and was what I was thinking. So it would seem that one could bypass this farce by submitting my discovery request directly to the prosecution, and they're obligated to provide it as long as it is in their possession...which it should be if they're going to use it. Gonna run with that and see how it goes.

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    Default Re: Can You Be Charged Copying Fees for Discovery Materials

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    This makes sense to me and was what I was thinking. So it would seem that one could bypass this farce by submitting my discovery request directly to the prosecution, and they're obligated to provide it as long as it is in their possession...which it should be if they're going to use it. Gonna run with that and see how it goes.
    But if they are not going to use it they would not have it within their possession. Much of what you are likely to request is not material the prosecutor would have direct possession of.


    and for what it's worth, even where informstion SHALL be provided, that often does not preclude the providing agency from charging a fee to provide the information. Many states have limited it to copying fees and in some cases research fees but just because it shall be provided doesn't necessarily mean it shall be provided free of all cost.

  9. #9

    Default Re: Can You Be Charged Copying Fees for Discovery Materials

    Quote Quoting jk
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    But if they are not going to use it they would not have it within their possession. Much of what you are likely to request is not material the prosecutor would have direct possession of.
    So if the prosecution claims they don't have the officer's sworn statement and SMD calibration in their possession and then attempt to use these things during the trial, they've just been caught in a lie--and in violation of 135.815.

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    Default Re: Can You Be Charged Copying Fees for Discovery Materials

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    So if the prosecution claims they don't have the officer's sworn statement and SMD calibration in their possession and then attempt to use these things during the trial, they've just been caught in a lie--and in violation of 135.815.
    I don't know the statute or case law here but it may not spell out any sanction for violation of discovery requirements. This might range from extra time given to the defendant to review material not provided to preclusion of evidence, at the discretion of the court. In other words, proving someone lied is one thing. Knowing the consequence for that lie is another.

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