Public record bills shine spotlight on transparency
In 2017, Oregon Gov. Kate Brown signed reforms into law to promote government openness and transparency.
Two years later, some state officials and advocacy groups say there is more work to be done to strengthen Oregon's public records law. A trio of bills dealing with public records is set for a committee hearing Wednesday, March 13, and more are on the way.
House Bill 2353 and House Bill 2431, both introduced by state Rep. Karin Power, a Milwaukie Democrat, get a public hearing before the House Judiciary Committee Wednesday afternoon. A third bill, House Bill 2345, also introduced by Power, awaits action in the House Rules Committee.
HB 2353 adds teeth to the public law's requirement that requests for government documents be addressed within 15 business days or "as soon as reasonably possible." Under HB 2353, if the state attorney general, a district attorney or a court determines that there was an "undue delay" or outright failure to address a request, they can require the public entity to pay a penalty to the requester.
Oregon law grants the public access, upon request, to most documents and records kept by cities, counties, school districts, special districts and state agencies. In some cases, records requests may be answered within hours. In other cases, despite the 15-day timetable in the law, it can take months for records to be made available, if they are released at all. The law allows a public body to respond to a request with an estimated date by which the records will be available, and it waives the timetable altogether when it would be "impracticable" to comply.
Power does not believe those delays and failures are all deliberate efforts to prevent people from knowing what their government is doing. In many cases, she said, short-staffed city halls and antiquated systems of recordkeeping are to blame.
"When you're not quick to respond to respond to somebody, they may think that there's a reason behind it. It might simply be that person who's in charge is busy," Power said. "But having clear parameters and expectations will help us who serve in the public to be more responsive, and our agencies and our local jurisdictions to be just more on top of everything, start to finish. I think that (will) take out any kind of second-guessing around why: 'was there a reason for this delay, is there something more there, are they trying to hide something there?' That'll help, I think, just to facilitate better communication."
Power served on the Milwaukie City Council for two years prior to her election to the Oregon House of Representatives. She said she learned a lot about not just the way Milwaukie conducts its business, but about how other cities across the state, large and small, handle their public records.
"The more I learned, the more I realized how many pieces of that building block need to get right in order to be really responsive," Power said.
Little data on requests
An ideological cousin to Power's bill, HB 2431, requires every state agency to submit an annual report on how many records requests were received and how many have yet to be fulfilled over a year. Those reports would be sent to the attorney general, the state public records advocate and the Legislature for review.
HB 2431 was introduced on behalf of the Public Records Advisory Council. The council was among the results of the 2017 reforms, as was the creation of the position of public records advocate to chair the council.
The public records advocate, Ginger McCall, said the bill is intended to give state agencies an incentive to move quickly on public records requests that they receive. They will also generate a new public record to show their work, something McCall said is lacking at present.
"There's no data whatsoever on how agencies are processing requests (or) what fees they're charging," McCall remarked.
Along with delays, fees are another barrier to public records access. Oregon allows government officials handling records requests to impose fees, requiring the requester to compensate them for staff time and copying costs. In some cases, those fees can rise into the hundreds or even thousands of dollars for a single request, if it is broad or complicated.
Another of Power's bills would reduce the cost to journalists who request public records. HB 2345 cuts records fees in half for any member of the news media, and waives them entirely for a request that "describes requested records with specificity and only includes records in which there is a public interest."
HB 2345 has not yet been scheduled for a committee hearing.
List of exemptions
While she declined to comment specifically on the bills that Power has introduced — both of them in collaboration with the Oregon chapter of the Society of Professional Journalists, which lobbies in Salem for press rights and public access — McCall said she believes the Legislature has more work to do on transparency.
"I think that there are a lot more reforms that do need to happen with the public records laws here," McCall said.
Some of that work is happening, for now, outside the Legislature. The Oregon Sunshine Committee began meeting approximately every other month in January 2018. Another of the public records law reforms that were adopted in 2017, the Sunshine Committee is tasked with identifying exemptions to the public records law that could be narrowed or removed altogether.
The Oregon Department of Justice keeps a list of exemptions — records that don't have to be disclosed even if specifically requested — on its website. It displays 585 exemptions. Even since 2017, that number has risen, and McCall has identified more than 30 bills that have been introduced this year that would exempt even more records from disclosure.
In many cases, exemptions are written to prevent the release of personal information that is held by the government — the identity of police informants, or the Social Security numbers of a couple going through a divorce, to name just two. But some exemptions are broader, and the sheer number of exemptions is troubling to some.
"Each individual exemption, when you take it as individually, may not be alarming," said Shasta Kearns Moore, president of Open Oregon, a nonprofit group that advocates for government transparency (and a former Pamplin Media Group reporter and editor). "But … it just kind of becomes this Christmas tree where everything is exempt, and then it kind of makes the public records law meaningless."
Belongs to citizens
Like the Sunshine Committee on exemptions, the Public Records Advisory Council is intended to be a source of ideas about reform. However, under the law passed in 2017, the council is temporary. It will have to dissolve after 2020. McCall plans to testify on a third bill Wednesday, House Bill 2430, that would make it permanent.
"We think that it's pretty important to keep the council alive," McCall said.
The advisory council, McCall noted, includes state and local government officials, members of the news media, and a private citizen. She has found the diversity of perspectives to be valuable. "It really allows that council to thoroughly vet policy proposals in a way that they wouldn't otherwise be vetted," McCall said.
Power is a non-voting member of both the Public Records Advisory Council and the Sunshine Committee, representing the House. Her Senate counterpart on the advisory council is Keizer Republican Kim Thatcher. Both are co-sponsoring HB 2430 and HB 2431.
Thatcher's spokesman Jonathan Lockwood said the senator was "concerned over protecting privacy while allowing better access to public records." She supports the work that the Public Records Advisory Council is doing, he added.
Both Lockwood and Kearns Moore stressed that the public has the right to know what is going on in state government. "When you have a government that is by and for the people, the information they create doesn't belong to bureaucrats," Kearns Moore said. "It belongs to every citizen in Oregon."
Editor's note: An earlier version of this story misstated the public records law's time period for a public body to respond to a records request. Under the law, a public body has up to five days to acknowledge receipt of the request and up to 10 days after that to fulfill it, deny it or estimate a completion date — a total of up to 15 days. The law also includes a provision waiving the timetable for a public body that cannot answer the request within that time due to staffing issues, the size of the request or the request's impact on other "necessary services."