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Former Oregon Health Authority Director Lynne Saxton deleted texts, according to motion filed by Portland health care company now suing state.

STATE OF OREGON - Portland nonprofit FamilyCare has asked a judge to sanction the state because former Oregon Health Authority Director Lynne Saxton deleted state text messages after being directed to preserve all records.A top Oregon official routinely and unlawfully destroyed public records, according to a new federal court filing that asks for the state to face heavy sanctions for the "intentional destruction of relevant evidence."

Lynne Saxton, who was the head of the Oregon Health Authority from early 2015 to August 2017, admitted in a recent deposition that she destroyed text messages on her state-issued cell phone on a routine basis, according to a motion filed by FamilyCare Inc. The Portland-area nonprofit is suing the state over what it says were unfair Oregon Health Plan reimbursement rates. And it has asked federal judge Michael Mosman to sanction the state over what it says are at least 78 missing texts, saying they could shed light on the rates as well as a state plan to secretly plant negative stories about FamilyCare.

The new filing highlights the trend in which public business that officials had in times past conducted using internal memorandum has now migrated to email, text messages and social media — some of which are destroyed automatically by private companies over time.

Saxton, a Republican who was selected for the post by former Gov. John Kitzhaber, declined to comment when contacted by the Tribune, citing the pending litigation.

The state's formal response has not been submitted in court. Officials largely declined to comment other than point the Tribune to an OHA records policy that requires employees to document and retain text messages that pertain to state business.

"OHA expects its employees to follow all agency policies," said a statement issued by agency Strategic Communications Manager Allyson Hagen.

The reported actions by Saxton "are problematic to me," said Oregon State Archivist Mary Beth Herkert, but she added that unlawful destruction of public records in Oregon "happens every day" despite the public records training that occurs.

"Until the state gets serious about enforcing and making people take seriously (records) retention," she added, "it's going to continue."

State law makes it a crime to knowingly conceal or destroy public records. However, it is difficult to prosecute, and several high-profile apparent violations have gone unpunished over the years.

Click here to read the FamilyCare motion requesting sanctions and describing Saxton's testimony.

Also, not everything created by government constitutes a public record, and insignificant records don't necessarily need to be retained.

Texts were 'business logistics'

According to the motion, Saxton testified the texts were government business and "mostly business logistics." She said her "understanding was that all texts were recoverable like emails," the motion said, "But Saxton also testified that she never had a conversation with anyone to confirm the accuracy of her understanding."

OHA records policy, however, makes clear that texts are to be treated more carefully than emails, Herkert said. That's because cell phone providers do not automatically archive deleted messages the way the state does with employee emails.

FamilyCare, which coordinated care for Portland-area low-income members of the Oregon Health Plan until January, sued the state over what it says were unfair reimbursement rates in February 2017.

Saxton admitted that she deleted text messages despite realizing in October 2016 that FamilyCare litigation was likely, and even following a December 2016 "litigation hold" explicitly prohibiting destruction of records, according to the FamilyCare motion.

In August 2017, the Tribune revealed that Saxton's OHA had prepared a public relations plan that sought to "hurt" FamilyCare's credibility with lawmakers, using negative stories in the media planted through intermediaries to disguise the state's role.

Though Saxton claimed the plan was never implemented, she resigned four days later — a move widely seen as an ouster by Gov. Kate Brown.

Her replacement, Pat Allen, has made public records compliance a focus and has beefed up records staff. However, the agency still does not train employees, including top officials and line staff, in the requirements of the law —such as that destruction of public records is a crime.

Ironically, though it did not involve public records, FamilyCare had a similar problem in which it was unable to locate nine text messages from CEO Jeff Heatherington to turn over to the state as part of discovery, court records show. But in a letter, the firm's lawyer said the matter was different, in part because they were not subject to a litigation hold intended to preserve evidence.

The FamilyCare motion regarding Saxton asks for reimbursement of the costs and attorney fees that FamilyCare incurred trying to get the text messages, and also that the jury in the case be instructed that it can assume the text destruction was part of a coverup.

Nick Budnick is a reporter for The Portland Tribune. He also is a board member of the Oregon Territory chapter of the Society of Professional Journalists, which advocates on behalf of government transparency.

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