Judge rules against Oregon Department of Transportation in I-5 Rose Quarter public records case

“It’s not a public involvement campaign. It’s a PR campaign. [This project] is deeply unpopular, and ODOT has to work really hard just to spin it as anything but.”

– Alan Kessler, lawyer

The Oregon Department of Transportation has wanted to get its I-5 Rose Quarter expansion done for well over a decade, but a host of challenges have gotten in the way of construction for the $1 billion project. Among the thorns in ODOT’s side are local transportation and climate advocates, who have sounded the alarm on things they say ODOT has been misleading the public about while the agency vehemently defends the project’s popularity.

These advocates have recently received good news in the form of a ruling issued by a Marion County judge earlier this week that detailed major ODOT missteps in how they handled a public records request .

This ruling concludes a lengthy saga that began when Portland lawyer Alan Kessler attempted to find out some details about what went on behind the scenes of a 2019 ODOT report outlining public comment they received about the Rose Quarter project. When he finally received the documents he’d requested, however, Kessler knew they weren’t up to snuff.

Related: ODOT’s marketing of I-5 Rose Quarter project sows distrust

“A lot of stuff was cut out,” Kessler told BikePortland on a phone call earlier this week. “They deleted most of the most of the substantial stuff from this Word document, edited some words to make it look like it was a real document, and then made a PDF of it and sent it to me.”

ODOT officials admitted they created a new document in response to Kessler’s public records request, which is not normal for a public agency to do. They may redact certain pieces of information, but that should be disclosed to the recipient by the presence of black boxes in the document and notes about the redactions. In contrast, ODOT didn’t tell Kessler about the edits they made to the document he received – they presented it as if it was fully intact in its original form.

Kessler received summaries of what members of the public told ODOT their concerns were about this freeway expansion back in 2019. What the agency removed mainly concerns ODOT’s own responses to these concerns that they used to justify moving forward with their project anyway. After some back and forth, Kessler finally received this document (the highlighted parts are what was originally omitted).

Portland attorney Charley Gee, who represented Kessler in his lawsuit against ODOT, says this practice is unheard of.

“They deleted the information and created a whole new document,” Gee told BikePortland. “I’ve never seen this. I don’t know if anybody’s ever done it before.”

“We made a mistake and are committed to improving. We are reviewing our Public Records Requests processes and trainings to ensure we follow the law and provide timely and accurate records to the public.”

-ODOT Communications Director Kevin Glenn

Why did ODOT do it?

When Kessler originally called on ODOT to explain their omissions, they said they were only required to provide records pertaining to his original request, which pertained only to the public’s concerns about the project. But why would ODOT take the time to craft an entirely new document with this information missing?

The information ODOT erased from the document they originally sent Kessler includes defenses against the theory of induced demand and explanations for why adding an additional freeway lane wouldn’t increase air pollution. These responses have been picked apart by people like ODOT watchdog and data analyst Joe Cortright, but the agency hasn’t shied away from expressing these views in the past.

To the critics who are vehemently opposed to the I-5 Rose Quarter expansion, ODOT is doing everything it can to hide the facts from the public so they can manufacture consent for the project. While they don’t know exactly why the agency removed what they did, they believe that if people knew everything about what ODOT planned to do at the Rose Quarter, they would be receiving a lot more backlash for it than they currently are.

Aaron Brown, a co-leader of highway fighting group No More Freeways, said this is the “most damning indictment yet that ODOT is not a good faith operator” and that their stated efforts to engage with the public and reflect community desires in their work haven’t been legitimate.

“They are willing to fudge numbers, withhold vital information, whatever it takes to build the damn freeway,” Brown said to BikePortland on a phone call yesterday. Brown said ODOT has a history of trying to hide the unpopular parts of this project, like how the expanded highway would impact the Eastside Esplanade and Harriet Tubman Middle School.

Kessler agreed, calling ODOT’s bluff on their public outreach efforts.

“They’re trying to control the message. They don’t want us to see the various versions of what they’re saying, because they’re trying to figure out what their message is. It’s not a public involvement campaign. It’s a PR campaign,” Kessler said. “[This project] is deeply unpopular, and ODOT has to work really hard just to spin it as anything but.”

The potential impact

The full effects of this court decision aren’t clear yet. But at the very least, ODOT will be required to handle their public records requests differently going forward. Now that they’re aware of the legal scrutiny they’re under, agency watchdogs have reason to believe they’ll be able to fulfill future requests for information in a more timely manner and that the information they do receive will have a level of transparency not guaranteed in the past.

The transcript and recording of the court ruling haven’t been released (they should be within the next few days), but Kessler said the judge issued a sharp indictment of ODOT for their actions here, criticizing the agency for hiding records and eroding people’s trust in the government.

“The judge was not pleased, and said that this has to do with accountability to the people of Oregon,” Kessler said.

In an emailed statement to BikePortland, ODOT’s Communications Director Kevin Glenn said the department “made a mistake and [is] committed to improving.”

“We are reviewing our Public Records Requests processes and trainings to ensure we follow the law and provide timely and accurate records to the public,” he said.

Gee said another positive byproduct of this verdict is that it will put pressure on other unrelated public agencies to be more transparent with their records dealings.

“The ripple effect will be other public agencies, if they’re engaging in this practice, they’re going to hopefully pay attention and say, ‘well, let’s not do that anymore,'” Gee said.

For people opposed to the freeway expansion, this is another strike against ODOT that they hope local stakeholders will take notice of and become more skeptical of the project. Kessler said he hopes agency partners like Metro and the City of Portland will, be rattled by the verdict and rethink their involvement.

“If the City of Portland or Metro says no, don’t build this, it won’t get built. If any of the local governments decide to take a stand, they can stop it,” he said. “But there’s lots and lots of money and political donations behind the freeway.”

Even with all of the money involved, Kessler hopes an indictment from a judge will have a bigger impact than other critiques members of the community have leveled at ODOT.

“Every time that somebody sees what ODOT is doing, they come to the same conclusion that we’re not being dealt with fairly. So now we have a judge who also agrees that ODOT has not been treating the public fairly,” he said. “I hope at some point the overwhelming evidence that ODOT is not being honest with us, and they’re not good stewards of our public money, will win.”

Portland firm will file lawsuit against aerosol makers and sellers to protect road users from ‘driving zombies’

Joleen Braasch-Berry.
(Photo courtesy Thomas Coon Newton & Frost)

Lawyers for the family of a Salem woman who was hit and killed while bicycling in October 2020 will file a lawsuit on Monday against the manufacturers of inhalants they say turn drivers into “zombies”.

Joleen “Jo” Braasch-Berry was 26-years-old and recently married when she left her job as an elementary school librarian. Braasch-Berry was riding in an unprotected, paint-only bike lane on NE Cherry Street in northeast Salem when the driver of a car failed to handle his vehicle and struck her. The man who hit her, who was arrested and charged with manslaughter and DUI, was seen on security video minutes before the crash leaving a Home Depot and inhaling a can of “CRC Duster”, a popular brand of aerosol spray used to clean computer keyboards and other types of electronic equipment.

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$5.9 million lawsuit says City of Portland is negligent for allowing parking at intersections

Graphic from lawsuit filed by Scott Kocher/Forum Law Group.

The idea of no-parking zones at intersections started with a state law. Then it became a point of contention for transportation activists, then a City of Portland policy, then a campaign from a walking advocacy group.

Now it has become the basis of a lawsuit.

Yesterday, Portland attorney Scott Kocher of Forum Law Group filed a $5.9 million lawsuit (PDF) against the City of Portland for negligence in the death of Elijah Coe, who was hit by a driver while riding his motorcycle on East Burnside in May 2019.

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Tamar Monhait’s family seeks $10 million from garbage truck company

Still from surveillance video.

As reported last month by The Oregonian, Tamar Monhait’s family has filed a lawsuit with the company responsible for the garbage truck operator who hit and killed her.

In the early morning hours of August 21st, 41-year-old Monhait was biking north on Southeast Water Avenue at Taylor when the truck operator made a left turn in front of her. She died at the scene from the impact.

Monhait’s lawyers allege that the left turn by the garbage truck driver is the result of improper training by his employer, Republic Services Alliance Group. They’re asking for up to $10 million in damages.

The suit claims that the intersection is well lit and that Monhait was “lawfully riding her bicycle… in a designated bike lane.”

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Black man who was thrown off bike and arrested without cause sues City of Portland for $475,000

Screenshot of story in The Oregonian.

The Oregonian reports that a northeast Portland man who was tackled off his bike, roughed-up and arrested in 2015 has filed a $475,000 lawsuit against the City of Portland.

An attorney for 23-year-old Anthony James Allen Jr. told The Oregonian her client was arrested without cause simply because he was black. Allen was cycling home from work when the police first made contact with him and began questioning him about an unrelated incident. Here’s more from Allen’s attorney as reported in The Oregonian:

“You need reasonable suspicion,” Albies said. “It can’t just be because ‘I feel like it.’ It can’t just be because ‘You’re black and I want you to do what I want you to do.’ … If that was me on my bike … there’s no way they would have done that. I’m a white woman.”

The lawsuit filed Wednesday (PDF) says that Allen was profiled due to his race. Police were in Allen’s neighborhood because of a shooting that had occurred. Here’s what happened when Allen rolled up on his bike (from the lawsuit):

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Portland pays $525,000 settlement in Mike Cooley dangerous bike lane case

Instead of facing a jury in a case they feared could go against them, the City of Portland agreed today to pay $525,000 to the family of a man seriously injured in a 2013 crash.

Mike Cooley, who was 59 at the time, was on his way home from work at the downtown post office when he was hit from behind by someone driving a large white truck. Cooley was riding northbound on North Interstate Avenue just north of Greeley. It’s a stretch of road with a terrible crash history and one that’s known for being narrow and very stressful. The City of Portland’s Vision Zero collision map shows 19 bike-related injuries on that stretch from 2004 to 2013.

In addition to narrow lanes, people frequently fail to maintain control of their motor vehicles and swerve into the bike lane, causing the striping to fade. There’s also a high speed differential between bicycle and automobile users due to the hill in the northbound direction.

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