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The high price of transparency

Legislators outdo state agencies in high fees, long waits for public records

Pamplin Media Group IllustrationSALEM — Lawmakers just wrapped up a packed session in which they passed important laws on minimum wage, housing and renewable energy that were negotiated behind closed doors.

Pamplin Media Group
EO Media GroupTheir response to a public records request shows how time consuming and expensive it can be for reporters — and the public — to find out who attended and helped shape legislation during those closed-door meetings.

The Pamplin Media Group/EO Media Group Capital Bureau on Dec. 18 requested the calendars of 11 legislators for the period of January through Dec. 18, 2015. Lawmaker calendars are considered a public record under state law. The bureau planned to examine the schedules to find out how legislative leaders and committee chairpersons spent their time and whom they met with leading up to votes on key policy proposals.

While many state agencies provide public records for free, the two most powerful people in the Legislature, House Speaker Tina Kotek, D-Portland, and Senate President Peter Courtney, D-Salem, were among lawmakers who slapped the highest price tags on their calendars.

Initially, five of the 11 lawmakers volunteered to waive fees associated with releasing their calendars. The other six legislators, including Kotek and Courtney, provided the bureau with estimates that totaled $1,200 to release less than 12 months of their calendars. To reduce the cost, the bureau narrowed its request to the calendars of Kotek and Courtney.

As of March 16, the bureau had yet to receive any of the records. Suzanne Trujillo, deputy legislative counsel, said she did not yet have a timeline for when the request would be complete.

Waiving the fees

JACK ORCHARDExcessive fees and long delays for public records are “a barrier to access,” said Jack Orchard, attorney for the Oregon Newspaper Publishers Association, and a longtime advocate for inexpensive access to public records. “It is a barrier imposed by the legislator. It is not a barrier engineered by the public.”

Inconsistencies in the way state agencies answer public records requests — including delays and high charges — contribute to the perception that agencies sometimes block release of public information, according to a November audit by the secretary of state's office.

The Capital Bureau’s request illustrated that those disparities can be even greater when the recipients of the requests are legislators. Lawmakers shape public records rules and have exempted themselves from many of the requirements. Disparities in charges and response times, along with fewer options for recourse when a lawmaker denies a records request, raise questions about whether the public can access information about how their representatives spend their time and make their decisions. Oregon law allows lawmakers and their staff to refuse to release records during legislative sessions.

Hourly charges and the time estimated to release calendars varied dramatically. For example, Courtney’s staff members indicated they would charge nearly $80 an hour to review, make redactions and release his calendar. Meanwhile, Sen. Michael Dembrow’s office gave an estimate of less than $23 an hour.

State agencies charge anywhere from $15 to $40 per hour for staff time spent on fulfilling public records requests, according the secretary of state’s audit. Time estimates to produce the calendars ranged from two hours for Courtney’s to 10 hours for Sen. Arnie Roblan’s.

Lawmakers who volunteered to waive fees associated with releasing their calendars were Rep. Margaret Doherty, D-Tigard; Rep. Ann Lininger, D-Lake Oswego; Senate Majority Leader Ginny Burdick, D-Portland; Senate Minority Leader Ted Ferrioli, R-John Day; and Sen. Floyd Prozanski, D-Eugene.

At the bureau’s request, Sen. Dembrow, D-Portland, House Minority Leader Mike McLane, R-Powell Butte, and Sen. Roblan, D-Coos Bay, later agreed to also waive the fees. Senate President Courtney, House Speaker Kotek and House Majority Leader Jennifer Williamson, D-Portland, held firm on their charges.

House Speaker Tina Kotek.

Setting a cost barrier

In their leadership positions, Courtney and Kotek shape the policy agenda, can block bills from the chamber floor and often negotiate backroom deals on legislation. Their power in the state rivals only that of Gov. Kate. Brown.

Kotek and Courtney's estimates for their calendars equaled nearly $300. As a comparison, Brown agreed to release nearly a year of her calendar, with detail fields, for $45.

Courtney’s office indicated it would charge for his most expensive employee, Chief of Staff Betsy Imholt, to process the request, at a cost of $80 per hour. Imholt earns $110,838 a year.

Courtney’s office later agreed to reduce the charge to $60 an hour, when the bureau pointed out the hourly charge appeared inconsistent with Imholt’s annual salary. The original $80 charge contained a prorated cost for benefits, said Robin Maxey, Courtney’s spokesman.

Legislators are allowed to charge fees for the time it takes to release their calendar, including redacting items that are not legislative business. That can include personal information, personal appointments, such as doctor visits, and campaign-related events, Trujillo said.

The charge “recoups the cost to the public body incurred in responding to the request — in this case, the staff time that was diverted from taxpayer-funded duties to fulfill your request,” said Lindsey O’Brien, Kotek’s spokeswoman.

The Speaker's Office didn't offer any evidence that providing the records caused an additional cost to the state.

Not every public record request incurs overtime, so if an employee doesn’t work overtime to fulfill the request and an extra employee isn’t hired to do so, it is unclear what benefit the fee serves, except to discourage such public records requests, said Orchard of the ONPA.

Orchard also questioned whether lawmakers have a right to charge for removing their personal appointments from a public calendar. With today’s technology, any lawmaker can keep separate personal and legislative calendars and sync them, Orchard said.

“The decision to merge public and private appointments on a calendar is your decision to make,” he said. “To turn around and charge the public for a decision you made to merge the two seems to me to set up a cost barrier for people getting access to that public record.”

Lawmakers “need to know what time is really free and not free,” said legislative counsel Dexter Johnson. “That inherently means kind of a blended calendar of both public and private events.”

Lawmakers also can decide what is and isn’t in the public interest. State officials can waive public records fees if releasing the information benefits the public, and the Capital Bureau had argued it would be beneficial for the public to know what lawmakers were doing. The only recourse for a denial is to take the lawmaker to court.

Expensive legal challenges

Senate President Peter CourtneyThe Legislature has largely exempted itself from public records law, said Judson Randall, president of Open Oregon, a charitable organization dedicated to helping Oregonians access public information.

Under state law, a requester who is denied a record or charged an exorbitant fee can appeal to the attorney general’s office. That recourse is not available to people requesting records from lawmakers .

“If Courtney says no dice, you have no recourse but to go to court, which is very expensive,” Randall said.

The public records audit released by the secretary of state in November examined responses to public information requests by nine agencies. The audit found agencies generally furnished records in two weeks or less for routine requests, defined as commonly requested information that is easy to find. More complicated requests could take more than 265 days and result in high and inconsistent fees.

Legislators’ responses to public records were not scrutinized.

By Paris Achen
Portland Tribune Capital Bureau Reporter
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