Public records council wants independent advocate
The week in Oregon politics began and ended with Ginger McCall.
McCall, the state's first public records advocate, announced her sudden resignation Monday, Sept. 9, citing undue influence from Gov. Kate Brown's office.
And, by the time the buzzer sounded on the workweek, a council vetting reforms to the state's byzantine public records laws moved in favor of a concept to ensure in state law that the public records advocate and the public records advisory council have the maximum independence the state constitution allows, and that the advocate should be a direct hire of the council.
The advisory council also agreed to investigate finding an independent funding source for the office its next priority after a new advocate is hired. But a suggestion to have a third party investigate the incident sputtered amid concerns that such a probe could re-litigate past events at the expense of future reforms.
Public records, public interest
The moves are a first step in making more clear what many agreed were the abundant gray areas in the 2017 law that originally created the office of the public records advocate.
During Friday's meeting, McCall said she'd received emails and read hundreds of comments on news stories supporting the independence of the advocate. "I will tell you that the clear consensus from the public, the marching orders that we have, are to shore up the independence of this office," said McCall, who is also the chair of the council. "And if we fail to do that, then I am glad that I will no longer serve, because I don't think this can be an effective office or effective council if we don't act on it."
The office, in addition to providing education and training on public records, serves as a mediator in resolving disputes between requestors and public bodies.
Members of the public who were present at the meeting said they supported the notion of an independent advocate.
"Perception matters," Rory Bialostosky, a plaintiff in a public records case against a West Linn City Councilor who said he consulted the Public Records Advocate in the early stages of his dispute, told the records advisory council.
Scott Winkels, a lobbyist for the League of Oregon Cities who sits on the council, advocated for a third party review of McCall's departure and the circumstances of her departure from an agency like the Department of Justice or the Oregon Law Commission.
McCall described backchannel attempts at influencing her work and urging from the governor to be a member of the "(Department of Administrative Services) team."
In a series of records released this week, McCall detailed her interactions with governor's staffers over the question of to whom she reported, how she sought an opinion from the Department of Justice on the matter, and her efforts trying to get more money from the legislature for the office of the advocate.
"The question is, how much of this is conduct, and how much of it was structure?" Winkels said.
Oregonians value access to public records, according to figures that John Horvick, director of client relations and political research at DHM Research in Portland, shared on Twitter this week. In January 2017, 55% of Oregon voters said they strongly agreed that every citizen should have "complete access to information about their state government." Thirty percent somewhat agreed with the statement.
"The public has a right to know what is being done in their name," said Ramya Krishnan, a staff attorney with the Knight First Amendment Institute at Columbia University. "And public records laws are important because they recognize that right. Without public records laws, it would be that much harder for the public to find out about things like government misconduct and corruption, because governments generally don't want to turn that information over. It makes them look bad."
Oregonians needs to be able to trust that the public records advocate will be objective in responding to their requests for help, advice or answers to questions, and in resolving disputes between requesters and public agencies over records, McCall said.
It also matters because the advocate is on the public records council, which is supposed to propose policies for improving access to public records. "The advocate needs to be able to zealously advocate for proposals that will improve transparency," McCall said. "Regardless of whether or not those proposals forward the interests of an elected official."
And, generally speaking, the public should know where elected officials stand, McCall said. "In order for the public to be able to decide whether or not they want to support a particular elected official, they need to know what that elected official is for and against," she said. "If the elected official is instead asking other people to carry water for them so that they don't have to be accountable for what they're opposing or proposing, that's a problem."
"The purpose of public records laws is to promote transparency and meaningful participation in self-government," Krishnan said. "And any attempt to politicize the administration or oversight of those laws compromises that project."
"It's good to see states that do this," Daniel Bevarly, the executive director of the National Freedom of Information Coalition, said of creating public records advocates in state government. "But it's troubling, when you have a state that actually created an office of open government to be more transparent, to actually see people violating the spirit, if not the intent of the law, to make these things independent and let them operate independently."
The week's events have been a stress test for one of Brown's ostensible tenets: transparency.
Brown ascended to Mahonia Hall in 2015 after Gov. John Kitzhaber resigned amid an influence-peddling scandal. In her inaugural speech, Brown said, "we must restore the public's trust."
Yet public trust is shaky after McCall told a different story. And, despite Brown's pledge back in 2015 to rebuild Oregonians' confidence in state government, Brown has been largely quiet on the matter since Monday evening, Sept. 9.
She has not named specific reforms to the position to make it "truly independent," as she called for Sept. 9.
Spokespeople for Brown did not respond by deadline to a list of written questions from the Oregon Capital Bureau Friday, instead providing a previous statement clarifying spokesman Chris Pair's claim that McCall's allegations were false. He said that claim was made before McCall's memos were released.
"It was in response to the general allegation made in the resignation letter to Governor Brown that the governor's office did not share the view that the Public Records Advocate should operate with a high degree of independence," Pair wrote in an email. "The governor's office does share that view."
Brown and McCall met on Wednesday, Sept. 11.
"It was a brief, but friendly meeting," McCall said. "She asked me for my thoughts on the independence issue and what could be done, and I proposed a couple of just initial reforms that I thought would be helpful, but that the council's going to be meeting and I hope that the council will come up with more robust ideas."
McCall said she thought it would be "great" if Brown committed to making changes to address the problem.
The scandal comes as Brown is facing trust issues with voters. Simultaneous recall efforts are nearing the finish line in their mission to gather roughly 300,000 signatures to give voters another shot at approving Brown.
The groups' organizers have said Brown has disregarded the will of Oregonians in pushing policies like new carbon emissions regulation, giving drivers licenses to undocumented immigrants and a new business tax used to fund public education.
Brown's dealings with McCall fit right into that, said Oregon Republican Chairman Bill Currier, who is leading one of the recall efforts. Currier said he was at one of the recall booths Thursday night, Sept. 12, in Mt. Angel. "There were a number of people there who mentioned the public records debacle," he said.
Currier said he has heard of an uptick in interest for signing the petition this week, following the news stories about the public records issues. How much of that is a response to the story is unclear, he said, as the effort has started to break more into urban areas.
Brown came into office after Gov. John Kitzhaber resigned due to a transparency scandal. She promised to be a transparent leader, but Currier said she's been anything but. "She promised to make transparency a priority," he said. "Essentially what she's done is made blocking it and objecting to it every step of the way a priority."
Currier declined to say how many signatures the GOP effort has, but repeatedly said "we're where we need to be," and that he thinks the effort can be successful.
The incident has also raised questions about Brown's recent appointment of her general counsel, Misha Isaak, to the Oregon Court of Appeals. Two complaints about Isaak have been lodged with the Oregon State Bar. And the Oregon Territory chapter of the Society of Professional Journalists called on Brown to rescind Isaak's appeals court appointment.
The governor's office has looked into whether judicial appointments can be rescinded. But no announcement has been made.
"When the governor's chief counsel, who's responsible for lining up judicial appointments, then becomes a nominee for a judicial appointment they are really underqualified for, it's inappropriate," Currier said.
September 9, 2019
Dear Governor Brown,
The purpose of this letter is to announce my resignation from my position as Public Records Advocate, effective October 11, 2019.
This was not an easy decision. This has been a wonderful opportunity and, on a personal note, I greatly appreciate the support you gave me during a very difficult time in my life.
I cannot, however, continue to serve in this role as I had hoped, because I do not think that the staff of the Governor's Office and I can reconcile our visions regarding the role of the Public Records Advocate. When I accepted this job, it was with the understanding that the Office of the Public Records Advocate was to operate with a high degree of independence and had a mandate to serve the public interest. That is an understanding that I believe the public, the Legislature, and the Public Records Advisory Council share.
Meetings with the Governor's General Counsel and staff have made it clear, however, that the Governor's staff do not share that view. I have received meaningful pressure from the Governor's General Counsel to represent the Governor's Office's interests on the Public Records Advisory Council, even when those interests conflict with the will of the Council and the mandate of the Office of the Public Records Advocate. I have not only been pressured in this direction but I have been told that I should represent these interests while not telling anyone that I am doing so. I believe these actions constituted an abuse of authority on the part of the General Counsel, and are counter to the transparency and accountability mission that I was hired to advance.
While I have always endeavored to work collaboratively with all offices of government, I believe strongly that independence is both essential to the effectiveness of the Office of the Public Records Advocate and enshrined in the law. However, if I am incorrect regarding the legal basis of the Advocate's independence, then the Advocate's responsibility to represent the interests of the Governor's office should be acknowledged before the public and the Council. If the Advocate were to represent the interests of an elected official while allowing the Council and the public to believe that she is acting independently, that would be both unethical and particularly inappropriate for an office that was founded to promote transparency.
I have made multiple attempts to find a workable solution, but at this point I no longer believe these conflicting visions of my role can be reconciled. As such I must, with regret, tender my resignation.
I hold you in great esteem and greatly admire the spirit demonstrated in the creation of the Public Records Advocate. The existence of such an office is an important step in ensuring transparency and accountability in the operation of government. It is my hope that these are just growing pains along that path and that a way is still found to fulfill that original spirit. I wish you much success in that effort.
And personally, I remain thankful for being given the opportunity to start this office and participate in this work. It has been a unique and meaningful experience, and at times a real pleasure, and for all these things I am deeply grateful. I am honored to have been allowed to serve the people of Oregon.
Ginger P. McCall
Oregon Public Records Advocate
800 Summer St. NE
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