Legislature: Make clarity, openness priorities
Come January, the 2019 Oregon Legislature will have a multitude of issues before it, ranging from how to raise $2 billion in new revenue, as suggested by Gov. Kate Brown, to what more Oregon should do to fight climate change.
But as lawmakers prepare to run headlong into such weighty matters, they also should consider a most fundamental function of government — the right of the people to know exactly how their tax dollars are spent. In Oregon, at all levels of government, too many decisions are made and actions taken beyond the view of the public.
It's time for the Legislature to throw greater light onto the workings of government, and a timely report produced by the state Public Records Advisory Council and by Ginger McCall, the state public records advocate, points the way forward.
We should pause here to note that Brown's appointment of McCall turned out to be a worthy one. McCall and the advisory council have done a thorough job of identifying the many loopholes, delay tactics and obstacles that some government officials exploit to keep their activities under wraps. (See story, Page A8.)
It is often journalists who seek government records, so they can report to the general public what is truly occurring at local and state agencies. But increasingly, ordinary citizens also are using the state's public records law, first passed by the Legislature in 1973, to keep track of government actions.
In both cases, they can be thwarted at times by a lack of cooperation from people in government who control the records. The main issues identified in the recent report — and obvious to all of us who regularly seek public records — include:
n Exorbitant fees charged by some jurisdictions to make records available. Pamplin Media Group reporters have been asked to pay fees of up to $1,100 — and in one extraordinary case, more than $14,000 — to review records we believed should have been made readily available. Obviously, no media group or individual can afford to make those sorts of payments on a regular basis, so the end result is a lack of government transparency.
n Reimbursement of attorney fees. It is costly to take a public agency to court to force it to release records. Current law requires the government to reimburse these legal costs if a media outlet or other public-records seeker prevails in court. (Pamplin Media Group's outside attorney recently won such a judgment in a case against Portland Public Schools). However, if an agency decides to release the records before losing in court — but after substantial legal fees have been incurred — it may not have to pay anything. This area of the law must be clarified.
n Delays in responding to public records requests. A 2017 change in the law set benchmarks for when public agencies should respond to requests for records. However, those benchmarks aren't binding, and more needs to be done to ensure that records are released in a matter of days or weeks — not months, years or never.
n Too many exemptions in the law. Since 1973, the Legislature, at the urging of special interests, has carved out at least 550 exemptions to the original law. These exceptions block scrutiny of many documents that are of public interest. Again, a 2017 amendment to the public records law was helpful, in that it created a process for reviewing these exemptions. But better mechanisms still are needed to roll back unnecessary exemptions and stop the creation of new ones.
Cleaning up the public records law will be a laborious process. It has taken 45 years for the law to become so completely riddled with exemptions. In addition to addressing the problems of fees, timeliness and delays, the Legislature should allow the Public Records Advisory Council and advocate to continue their important work. The council was appointed until 2021, but the Legislature should extend that by at least two years. Lawmakers also should accept the council's additional recommendation that it pass a law requiring every jurisdiction to report how many public records requests it receives each year, how long it takes to respond and what fees it charges.
Having such basic information, and having an oversight group to assist, will eventually help the Legislature return the Public Records Law to its original purpose of ensuring that the public's business is actually done in public.