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Oregon Health Authority heavily redacts documents about its fight with the health care provider released in response to a public records request

OREGON HEALTH AUTHORITY - Oregon Health Authority Director Lynne SaxtonThe Oregon Health Authority has a plan for its long-running fight with FamilyCare Health, a Portland-area nonprofit paid by the state to serve 140,000 low-income Oregonians in the region.

But the state agency doesn't want Oregonians to see that plan for public relations messaging as the two sides battle over money.

A recent decision by OHA to overwhelmingly blank out 26 pages of emails involving its FamilyCare communications plan — not just withholding the plan itself, but removing all mention of the plan, citing pending litigation —suggests that even in a year when public records is a hot topic in Salem, Gov. Kate Brown's directive to agencies to set a more transparent tone is not filtering down.

Bryan Hockaday, a Brown spokeman, says his office played no role in blacking out large swathes out of the records, and directed OHA to release the records sooner than it had planned.SCREENSHOT - Oregon Health Authority officials blacked out mentiion of its 'comms' plan in the subject of an email, as well as all discussion of it.

"The Governor's office did not review any redactions prior to directing Oregon Health Authority Director Lynne Saxton to contact the Department of Justice to release the records in response to your request on June 26," he said. "Throughout her administration, Governor Brown has prioritized public access to state government, and this legislative session she continues this critical work to improve accountability and transparency."

The department's remarkable withholding of information, which raised eyebrows among public records experts, lawmakers and others, also shows the high stakes the 2017 legislation session has held for the agency and FamilyCare as they battle over how much the organization should be reimbursed for the services it renders.

Jeff Heatherington, CEO of FamilyCare, says the witholding is just another example of dirty pool by OHA. "They're just making sure that nobody in the Legislature sees them," he said of the delayed and hidden documents.

The nonprofit has been a prominent and vocal critic of OHA leadership for years. Earlier this year, after once again receiving the lowest reimbursement rates in the state of any of the 16 organizations serving the Oregon Health Plan, it again sued the state.

FamilyCare claims OHA is trying to drive it out of business, while OHA says FamilyCare is just trying to pad its profits.

With the session in its final days, OHA's efforts to neutralize FamilyCare appears to have succeeded. A bill floated by FamilyCare to change how OHA sets its rates, Senate Bill 233, is almost certainly dead.

But while the OHA communications plan remains a secret, what's known of it is raising questions for some.

"That's totally out of line," said Sen. Laurie Monnes Anderson, D-Gresham, after she was told of an email discussing OHA's plan. She referred to how it discussed using a strategy with lawmakers to undermine FamilyCare.

In the email, obtained from an unofficial source, the official who oversees public relations and lobbying, BethAnne Darby, discusses the need for a separate communications strategy "inside the building," referring to the Capitol in Salem. The goal, Darby wrote, was to sow skepticism about Familycare, referred to as FC.

"I think we are talking about a session-long strategy (through May or so). The Legislature will be a key audience, and the goal will be to ensure that they have enough information that they want to stay out of the dispute ... Our goal will be to create enough information buzz that it causes the legislature to question what FC is trying to sell."

Monnes Anderson said an email like that makes her question whether the information she receives from the agency is slanted one way or another.

"I do believe that OHA should come up with a good communications strategy, but not necessarily to influence lawmakers," she said. "There needs to be, I think, improved commucations between OHA and lawmakers — but not against a specific organization."

Jim Moore, the director of the Tom McCall Center for Public innovation at Pacific University, said the email suggests OHA is acting more like a public relations firm than a state agency

"It's basically a classic public relations move. PR moves work best when you don't know they are PR moves," he said. "It's almost indirectly lobbying, but it is clearly trying to change the agenda and the context with which the Legislature understands these questions.'"

But while Rep. Mitch Greenlick, D-Portland, shares some of the concerns of FamilyCare, he said the email doesn't seem like it crosses the line. "I don't find that offensive at all."

The records issue sparks different questions. Portland Tribune submitted a request to OHA for emails concerning any FamilyCare communications plan on May 22. On June 9, the agency' reported they had been assembled and would be released within days. Then they were delayed for further review. On June 23 an agency officail said the agency intended to supply them by the end of the day. STATE OF OREGON - State Sen. Laurie Monnes Anderson, D-Gresham, said for a state agency to target lawmakers to sow skepticism and undermine a contractor's lobbying is 'totally out of line.'

Then the documents were delayed again, purportedly because Director Lynne Saxton wanted to review the documents personally, and wanted the Department of Justice to review them further, too.

On Monday night, after Brown ordered their release, the 26 pages were released subject to massive redactions.

Asked about the redactions, OHA cited public records exemptions including those concerning attorney-client privilege, pending litigation and one that protects internal communications. But it refused to say which of those were used to redact the email describing OHA's plan to create an "information buzz" to sow skepticism of FamilyCare.

Some experts questioned the state's heavy redactions of the emails, including the one about sowing skepticism.

Tung Yin, a professor at Lewis & Clark Law School, said much of the email obtained by the Portland Tribune does not appear to be subject to attorney-client privilege, as it was marked by OHA.

Lawyer Duane Bosworth, a public records expert at Davis Wright Tremaine, agreed, saying that the privilege applies only to the provision of legal services. As far as the email about "information buzz" that was labeled attorney client privilege, he said, "It's difficult, if not impossible, to see what in here is related to the provision of legal serices. On its face, I can't see anything in this email that would justify that."

Disclosure: The reporter of this article volunteers for the Society of Professional Journalists to advocate for open government.

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