by: Rob Bovett | AOC Legal Counsel

September 2, 2016 (updated Friday, September 9, 2016)

The basic structure of Oregon’s public records law has not changed since the early 1970s.  However, the nature of public records, and how they are generated and stored, has changed dramatically since then.  Decades of efforts to significantly reform or modernize the public records law have all met with failure, largely due to lack of consensus among the key stakeholders.

A couple years ago, Oregon Attorney General Ellen Rosenblum decided to give it another try, and formed the Attorney General’s Public Records Law Reform Task Force.  I serve on that Task Force as the representative from the Association of Oregon Counties (AOC).  The Attorney General made it clear that she wanted to tackle the three big issues, namely timelines, fees, and exemptions.  However, she also made it clear that she wanted to find consensus among the stakeholders, so that legislation wouldn’t just die again.

The Task Force has extensively discussed and debated the issues at its meetings, and also conducted a series of meetings around the state to solicit public input.  Recently, the Attorney General has prepared draft legislation to address timing issues that she hopes will become a consensus bill from the Task Force in 2017.

Governor Kate Brown is also taking an active part in a separate piece of the public records law reform puzzle, namely the possibility of having a public records ombudsman, similar to what is being done successfully in a number of other states.  Task Force members are generally in support of that concept.  But, as with the three big issues being tackled by the Task Force, the devil will be in the details.

The media, as a key stakeholder, has representatives on the Task Force.  But media coverage of the work of the Task Force has been a bit interesting, to say the least.  For example, on August 5, The Oregonian covered the Attorney General’s proposed legislation, but failed to explain that the proposal was just a draft of one of three parts.  Instead, on August 13, the Editorial Board of The Oregonian blasted the proposal as inadequate.

Yet another interesting development occurred when two journalism students from the University of Oregon decided to test Oregon’s public records law by submitting a public records request to each Task Force member for all public records relating to the Task Force.  The results were reported in an article published by the Portland Tribune on August 18.  It’s definitely worth the read!

On August 31, the Task Force held another public meeting. The Oregon chapter of the Society of Professional Journalists (SPJ) live tweeted the entire meeting.  Some of the proposals submitted by the media were discussed extensively.  Serious concerns were raised by government representatives, including myself, about some of those proposals.  Michael Kron, Special Counsel to the Attorney General and Chair of the Task Force, has continually reminded everyone of the need for consensus.

To help further support Michael’s notion, I chimed in that not only is consensus a political necessity to get public records reform legislation passed, but that consensus would be needed to avoid creating a situation in which legislation could become an unconstitutional unfunded mandate on local governments that would be taken to court.  Consensus, on the other hand, could drive a supermajority vote in both the House and Senate that would avoid any possible unfunded mandate complication.

However, the headlines and lead lines for the story that ran on September 1 generally focused on the threat of lawsuits over public records reform legislation.  That, of course, wasn’t my point.  But, then again, more recognition by the Legislature of the need to avoid unfunded mandates is maybe not such a bad thing.  In the meantime, that story has gone viral.  Then, in the following days, some folks in the media made incorrect assumptions based on that story and ran editorials chastising me for saying things I actually didn’t say, although one commentary got it right.  I guess this is just another chapter in the very strange ongoing saga of public records law reform efforts in Oregon.

Published articles and editorials cited and linked:

Oregon attorney general proposes fixes to state open records law
(Oregonian article, August 5, 2016)
Oregon’s cagey relationship with public requires stronger records reform
(Oregonian editorial, August 13, 2016)
Putting Oregon’s records law to the test
(Portland Tribune article, August 18, 2016)
Public records reform could spark lawsuits without supermajority
(Portland Tribune article, September 1, 2016)
Tips and kicks
(East Oregonian editorial, September 1, 2016)
Public records in hiding
(Baker City Herald editorial, September 7, 2016)
A dress rehearsal for a bill
(Investigate West commentary, September 8, 2016)