Putting Oregon's records law to the test
Two weeks ago, the states top lawyer revealed how she wants to fix what she calls a car wreck Oregons troubled public records law.
Thats 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. Its so bad that last year the Washington, D.C.'s Center for Public Integrity gave Oregon an F for government transparency.
As journalism students, wed 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 theyre 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.
Thats 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 whats reasonable and practical is left up to public officials.
Without a deadline for responding, its hard for those making the records request to figure out whether the recipient is slow to respond or ignoring them.
Three task force members didnt 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 hes 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 forces 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 bodys 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 doesnt 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 Beyers email files.
She told us Helms records would cost us $95.58 and Huffmans $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 theyve 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 states public records task force dont work for government. Theyre 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 hes not a government employee he didnt have to give us any records.
Jeb Bladine, representing the Oregon Newspaper Publishers Association, initially shared Shipmans 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 states 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 didnt 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 didnt provide some records, shame on me, Zaitz said. But there was no intention to not hand them over.
Kira Hoffelmeyer and Russell Wilson produced this story as part of the investigative reporting program at the University of Oregon School of Journalism and Communication. They graduated in June.
See related opinion piece: Voters of all stripes seek transparency