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Portland Public Schools board writes up 700 words outling a new approach to transparency, but some say the district has already hobbled itself.

TRIBUNE PHOTO: JONATHAN HOUSE - Portland Public Schools board Chair Julia Brim-Edwards at a recent board meeting. After years of complaints of stalling and secrecy in the district, the Portland Public Schools board seems poised to add strong new language in its public records policy.

But with criticism swirling around a recent bargaining agreement, some are questioning whether it will have the intended effect.

"Policies in Portland Public Schools never have teeth," said PPS parent and Oregon Board of Education appointee Kim Sordyl. "They're just a show, mostly, because no one ever enforces them."

Sordyl, who has made many public records requests from PPS over the years, says the teacher contract is likely to trump policy in district decisions to release records.

However, PPS board Chair Julia Brim-Edwards feels the public records policy will lead to more transparency.

"We've really tried to insert in the new policy our beliefs in our work as a public institution and that the public has the right to see how business is conducted," Brim-Edwards said during the Feb. 27 first reading of the policy.

A second reading is expected to follow a three-week public comment period. At that point, it would become policy.

The district originally did a first reading of different new policy language in September 2017. Records show soon afterwards, representatives of the Portland Association of Teachers sent emails demanding that the new policy be part of their contract negotiations (see sidebar, below).

Retaliation would be subject to discipline

PPS' new 700-word policy would replace its current language, which is fairly simple and gives staff broad latitude in responding to requests. Critics have complained for years that the district's inaction or decisions have violated state law, and the Multnomah County District Attorney, in reviews of PPS records decisions, has often agreed.

The new policy repeatedly emphasizes the role of state and federal law in fulfilling requests. It also states that the district's goal is to provide records at no or minimal cost in cases of easy-to-deliver requests.

"Again," said Brim-Edwards, "keeping the threshold low for the community to see how our business is conducted."

Large requests, or those where documents are difficult to find, may still be charged a fee at the district's discretion.

Requesters will also gain the formal ability to ask for the school board to review staff decisions.

But that could take up to 30 days and depends a lot upon the philosophies of board members. Requesters will still have the right to appeal to the county district attorney, which by law must take place within seven days.

District employees found unlawfully retaliating against people for making requests or asking for reviews of decisions will be subject to discipline, up to and including firing, according to the new policy.

Board member Scott Bailey asked why the policy specified "unlawful" retaliation and suggested that word be stricken so that it was clear any retaliation would be grounds for discipline.

"I think we're clear on the spirit and we'll talk about wording," replied Interim General Counsel Elizabeth Large.

There are more than 550 exemptions to Oregon Public Records Law, though most are "conditional" meaning that the agency can release the information if it determines there is a public interest in it. The PPS policy says it would "construe the public interest liberally in favor of disclosure." This aligns with court and state Department of Justice opinions that the records law was intended to open the doors of government, rather than a law outlining what must be kept secret.

"I think we have — after a lot of deliberation — come up with a comprehensive approach that hopefully will make our business more transparent," Brim-Edwards said.

Union demands presumption of secrecy on employee records

Documents released Friday by Portland Public Schools shows the Portland Association of Teachers union demanding that the district sit on employee records unless the union agrees to their release or unless "absolutely required by law."

PAT attorney Noah Barish wrote Oct. 12, referencing the case of special education teacher Andrew Oshea. The Portland Tribune published several stories in recent months detailing how Oshea was still a paid employee of the district for two years while off work and in and out of jail.

"In order to prevent additional irreparable harm to other PAT bargaining unit members in similar circumstances," Barish wrote, the union demanded to bargain over any future decision to release such records when "not absolutely required by law."

Barish said the union would not want the district to release records when a disciplinary investigation is pending, or there was no discipline issued or the discipline was rescinded. The union also doesn't want the release of "personal information" or the contents of a personnel record to be released.

The teachers' contract — ratified by the board Feb. 8 without changes called for by open government groups — forbids "school and program administrators" from saying that people are on paid administrative leave. Several have warned this would make it harder for the public to learn of shoddy investigations, waste of taxpayer money or inappropriate discipline.

"In all cases, when asked directly about the professional educator's whereabouts, the Administrator may respond that the professional educator is not at the school," reads the teacher contract on page 96.

Records experts say state law is likely to trump the contract, but they are waiting for someone to test it.

The 2017 Oregon legislature affirmed it wants the state to conduct business as openly as possible, giving requesters new rights and avenues to obtain information. For example, Oregon law now calls for documents to be produced "as soon as practicable and without unreasonable delay."

Oregon lawmakers also said that an agency is now free from liability if it accidentally discloses information it shouldn't have disclosed.


Shasta Kearns Moore
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