By: Kira Hoffelmeyer and Russell Wilson

August 18, 2016

Original Source

Two weeks ago, the state’s top lawyer revealed how she wants to fix what she calls a “car wreck” — Oregon’s troubled public records law.

That’s how Oregon Attorney General Ellen Rosenblum described the law when she visited our investigative reporting class last spring at the University of Oregon.

When passed in 1973, the Oregon public records law was a national model. Since then, legislators, bureaucrats, lobbyists and other attorneys general have worked to weaken the law and deny Oregonians easy access to a transparent government. It’s so bad that last year the Washington, D.C.’s Center for Public Integrity gave Oregon an “F” for government transparency.

As journalism students, we’d seen how important the public records law is — not just to our work but also to activists and citizens who want to know how their government works and tax dollars are being spent.

This spring, we tried an experiment. We figured that if anyone understood the law and its problems, it would be members of the public records task force Rosenblum empaneled to help strengthen the law. On May 4, we sent a public records request to the 21 members of the public records task force, asking each one for “any and all communications between you, public employees or any other person that relate to the work of the task force.”

In theory, every piece of paper, email and other documents held by government agencies belongs not to the public employees and elected officials who create and retain the documents, but to all of us. We figured the task force members would be happy and eager to disclose details of their work.

But as it turned out, the task force members were all over the board when it came to complying with the very law they’re trying to reform.

Most members willingly complied with our requests, which brought in 1,500 emails and more than 200 other documents. Others pushed back or ignored our requests. Ironically, news media representatives on the task force put up the most resistance (see related story below).

The documents we received gave some insight into what the panel was debating. But the overall response to our request (or lack of a response) was even more revealing. It laid bare a law so flimsy that any public official can easily rebuff citizens seeking access to public records.

The first hurdle: silence

Responses to our public records requests took from less than a day to nearly two months.

That’s not surprising. Unlike most states, Oregon has no deadlines for government agencies to respond to public record requests — though Rosenblum hopes to change that (see related story on Page 1). The current law says government agencies must respond “as soon as practicable and without unreasonable delay,” but deciding what’s reasonable and practical is left up to public officials.

Without a deadline for responding, it’s hard for those making the records request to figure out whether the recipient is slow to respond or ignoring them.

Three task force members didn’t respond to our records requests, though two of them did finally write us back after we told them we were publishing a story and would mention their failure to respond to our requests. Mario Parker-Milligan, the executive director for the Oregon Student Association, sent some records and an apology. Keith Shipman, with the Oregon Association of Broadcasters, sent a statement claiming he was not required to comply with the public records law. We think he’s mistaken.

We never heard from Sen. Jeff Kruse (R-Roseburg).

On the other end of the spectrum was Rob Bovett, legal counsel with the Association of Oregon Counties. Within 17 hours of our request, Bovett sent 64 pages of emails and seven documents regarding the task force’s work.

Why did he turn over the requested documents so quickly? Bovett, the former Lincoln County district attorney, had a simple answer: “Because they are public records not subject to an exemption.”

The second hurdle: exemptions

If you talk to anyone who regularly uses public records in Oregon, they inevitably will bring up exemptions.

When first passed in 1973, the law had 55 exemptions. Some, understandably, protect personal privacy, such as medical information and credit card numbers. Others allow authorities to withhold ongoing police investigations, answers for school standardized tests and information concerning pending litigation.

Over the years the Legislature has added exemptions, in some cases responding appropriately to changes in technology or privacy laws. But they often responded to pressure from a government agency or industry group whose job might be made more difficult by disclosure of public records. Examples include addresses of donors to public universities, draft audits of government agencies and the identity of anyone who files a report with the Oregon Beef Council.

“All it takes,” Rosenblum told our investigative reporting class in May, “is the ability to persuade the Legislature to get an exemption.”

Michael Kron, special counsel to the attorney general and the driving force behind reforming the law, found there are now 541 exemptions.

Final hurdle: fees

Oregon law allows a government agency to charge fees to produce public records, if the fees are “reasonably calculated to reimburse the public body for the public body’s actual cost of making public records available.”

However, in May the task force heard reports of government agencies trying to charge tens of thousands of dollars for records that were actually quite easy to produce. Steve Suo, watchdog and data managing producer at The Oregonian, told the task force the Oregon Department of Public Safety Standards and Training tried to charge him $13,000 for one database, and the Portland Police Bureau once sent a bill for slightly more than $1 million.

News organizations, attorneys and activists sometimes can afford the large fees. But government efforts to squeeze money out of citizens for public records can stop most people cold, according to Doug Brown, a news reporter for the Portland Mercury who frequently requests police incident reports.

“I think the costs of routine public records requests really prohibits anybody who doesn’t have a big budget,” Brown told the task force. “It costs so much money and takes so long when it really should take no time and no money to do it.”

Oregon law allows public officials to waive fees when the disclosure of records serves the public interest. But it also gives officials wide discretion when ringing up the bill for citizens. They can charge hourly rates to cover employee time (including their health benefits and pension costs) to look for easily accessed records, such as emails or calendars.

Hourly costs can spike even higher when the recipient of a request decides to get a legal review.

No consistency in fees

For this exercise, we decided not to request a fee waiver (or pay for any records). Instead we waited to see how much the task force members would charge to see their public records.

Almost half of the members who responded (9 of 20) sent us records at no cost.

But others insisted we pay up to get the public documents. The total bill: $601.39.

The charges differed wildly. We got an $80 bill for public records from Gov. Kate Brown, who has a staffer on the task force. And getting responses from the three legislators on the task force, Sen. Lee Beyer (D-Springfield), and Reps. Ken Helm (D-Beaverton) and John Huffman (R-The Dalles), also was going to cost us.

Beyer had told legislative staff to waive the fee, but Suzanne Trujillo, deputy legislative counsel, told us we had to fork over $59.54 if we wanted to see public records in Beyer’s email files.

She told us Helm’s records would cost us $95.58 and Huffman’s $119.77.

Trujillo did not respond to emails asking what the costs would cover, or why the totals varied for the same request. “Government transparency is a goal that we always strive for,” Beyer told us in an email, “but it does need to be balanced with the cost of making documents available.”

The most expensive bill came from the Oregon Judicial Department, which runs the state court system. It wanted $306.50 to see public records from its two task force members: Joshua Nasbe, a lawyer, and Phil Lemman, the department spokesman. The fee included $88 an hour for lawyers to review the emails.

Lemman defended the fee, saying it is “protecting the taxpayers’ investment in what they’ve given to the agencies.”

Law applies to task force members

Oregon law is clear: Documents created or received by public employees as part of their jobs are subject to the state public records law.

But what about private citizens who volunteer their time for the public good?

Ten members of the state’s public records task force don’t work for government. They’re lobbyists, trade association directors, members of the public and journalists.

But by agreeing to serve on a task force chartered by a state agency, each is considered to be acting as a public official. As such, all of their correspondence relating to the task force is subject to disclosure under the public records law.

Task force member Mark Landauer, a lobbyist for the Special Districts Association of Oregon, felt his emails fell into a “gray area.” He nonetheless complied promptly to two public records requests by University of Oregon journalism students.

The three members of the task force representing the news media, however, all pushed back against the request for their emails.

Keith Shipman, of the Oregon Association of Broadcasters, initially failed to respond to the students’ request. When informed the reporting would lead to a published story, Shipman said that because he’s not a government employee he didn’t have to give us any records.

Jeb Bladine, representing the Oregon Newspaper Publishers Association, initially shared Shipman’s view, telling student reporters that neither he nor the association was a “public body.”

When pressed, however, Bladine, publisher of the Yamhill Valley News-Register, agreed that his “direct communications” with the task force members and staff were covered by the law and made them available.

The only working journalist on the task force is Les Zaitz, an investigative reporter for The Oregonian and one of the state’s foremost champions of the public records law.

The public records law says the person requesting documents need not explain why the records should be released. Zaitz, however, challenged student Kira Hoffelmeyer in an email exchange, telling her to “cite the provision of the Oregon Public Records Law that you believe subjects me to a records request.”

Hoffelmeyer instead asked Zaitz if he believed he was subject to the records law. He never responded, but did send 23 emails and documents related to his work on the task force.

As it turns out, he didn’t release all the records he had. Records the students obtained from other task force members show that Zaitz missed about 20 emails that were subject to their request.

When informed of the discrepancy, he was contrite. “If I didn’t provide some records, shame on me,” Zaitz said. “But there was no intention to not hand them over.”

Oregon law is clear: Documents created or received by public employees as part of their jobs are subject to the state public records law.

But what about private citizens who volunteer their time for the public good?

Ten members of the state’s public records task force don’t work for government. They’re lobbyists, trade association directors, members of the public and journalists.

But by agreeing to serve on a task force chartered by a state agency, each is considered to be acting as a public official. As such, all of their correspondence relating to the task force is subject to disclosure under the public records law.

Task force member Mark Landauer, a lobbyist for the Special Districts Association of Oregon, felt his emails fell into a “gray area.” He nonetheless complied promptly to two public records requests by University of Oregon journalism students.

The three members of the task force representing the news media, however, all pushed back against the request for their emails.

Keith Shipman, of the Oregon Association of Broadcasters, initially failed to respond to the students’ request. When informed the reporting would lead to a published story, Shipman said that because he’s not a government employee he didn’t have to give us any records.

Jeb Bladine, representing the Oregon Newspaper Publishers Association, initially shared Shipman’s view, telling student reporters that neither he nor the association was a “public body.”

When pressed, however, Bladine, publisher of the Yamhill Valley News-Register, agreed that his “direct communications” with the task force members and staff were covered by the law and made them available.

The only working journalist on the task force is Les Zaitz, an investigative reporter for The Oregonian and one of the state’s foremost champions of the public records law.

The public records law says the person requesting documents need not explain why the records should be released. Zaitz, however, challenged student Kira Hoffelmeyer in an email exchange, telling her to “cite the provision of the Oregon Public Records Law that you believe subjects me to a records request.”

Hoffelmeyer instead asked Zaitz if he believed he was subject to the records law. He never responded, but did send 23 emails and documents related to his work on the task force.

As it turns out, he didn’t release all the records he had. Records the students obtained from other task force members show that Zaitz missed about 20 emails that were subject to their request.

When informed of the discrepancy, he was contrite. “If I didn’t provide some records, shame on me,” Zaitz said. “But there was no intention to not hand them over.”

Voters of all stripes seek transparency
A recent poll of Independent Party of Oregon members has confirmed my suspicions that we are not as politically divided as we think — at least on one key issue.{img:121959}

The IPO is a new third party in Oregon, attracting supporters of both Hillary Clinton and Donald Trump. The IPO poll showed there was one thing the two camps could agree on with overwhelming support: government transparency.

In fact, there was more agreement there than on any other category in the poll.

Eighty percent of Independent Party voters want Oregon to establish reasonable deadlines for government to respond to public records requests.

Seventy-eight percent want the government to provide public records at no cost or actual cost of production — to consider it part of their job, mission and budget to provide that information.

Voters may be divided on where to draw school boundaries, how to house the homeless or who should be president. But there is a common cry and it’s this: We want to be owners of our government again.

If we are the owners of our government, we should have the right to look around. We should be welcomed into the back rooms, invited to check the books, encouraged to question the decisions.

As radical as it seems, we should know what our government is doing, and we shouldn’t have to wait or pay for it.

That is not the case in Oregon today.

Most agencies do try to provide records as quickly and cheaply as possible. But in our law, there are no deadlines to reply to public records requests and no restrictions on fees. Public agencies in Oregon can (and do) wait as long as they want and charge whatever they want for a single email, and there’s little recourse.

Unfortunately, attempts to fix this system have repeatedly gotten bogged down in the quagmire of special interests.

In the third attempt in 40 years since Oregon’s original public records law passed, Attorney General Ellen Rosenblum is trying to course-correct. The two previous attempts at public records reform failed for lack of support among legislators and government agencies.

Instead, more than 500 public records exemptions have been added to the law, scattered throughout the statutes like the blackberry brambles in Oregon’s landscape.

Rosenblum, through a task force, is trying to come up with politically palatable reforms. But the proposed language, released earlier this month, is not the kind of reform that Oregon deserves.

Yes, there would finally be a deadline for responses to requests. But numerous loopholes in the current draft would allow unscrupulous agencies to wiggle out of them. Schools, including public universities and other large institutions, would — unlike now — be able to delay responses practically any time students are on vacation — a huge chunk of the calendar. If this were the case now, we still wouldn’t know much about the lead crisis in Portland Public Schools.

And remember those 500 exemptions? The attorney general’s proposed reforms would shed light on them by requiring a catalog, but they stop short of doing something about them.

David Cuillier, a leading national researcher on public records laws, says a true step forward would be to not charge fees at all for collection and redaction of noncommercial records requests, as it prices low-income people, especially, out of governmental participation.

“This isn’t a park,” says Cuillier, a University of Arizona associate professor. “This is democracy we’re talking about. And we should not charge fees.”

On a macro level, government transparency is in everyone’s best interests. It’s better for government employees, it’s better for taxpayers, and it’s better for democracy.

It shouldn’t be surprising or upsetting that we want to see what’s going on between our employees inside all those buildings we’ve all spent so much of our tax money on.

There are certainly issues that we as Portlanders, Oregonians and Americans are divided on. But if there is common ground to be found, it’s that we want to know more.