Public records overhaul encouraged, but doubtful it will make a difference
One positive outcome from the ethics and influence-peddling scandal involving former Gov. John Kitzhaber and his fiancé, Cylvia Hayes, is the renewed, intense public and legislative scrutiny of Oregon's public records law. The bottom line, however, is that it's not likely to make much of a difference for agencies hell-bent on secrecy.
Under the current proposal from Gov. Kate Brown's office, which was introduced in November, the state would create a public records advocate and advisory council. As defined, the advocate would be housed in the state's Department of Administrative Services — the executive branch, under Brown's control — though there is some suggestion it could be moved to the more appropriate Secretary of State's Office.
As spelled out in the law, the advocate would provide mediation services to resolve public record disputes. Further, the advocate would be in a position to provide training to state agencies and local governments regarding disclosure requirements, best practices for managing records, and best practices for processing and responding to requests.
It would also have the records advocate provide guidance and advice on discrete records requests, and to review denials, including denial for release of records and fee waivers, if the public body is located in a county with fewer than 75,000 population — a category that includes Columbia County.
The advisory council would review the law and how it is executed, and at least once per biennium make written recommendations to the governor and Legislature on the law's effectiveness, implementation and fairness.
There are also incentives in the law to bring both parties — the requestors and the public agents — to the table to mediate disputes.
Revising the current law, which in practice is horribly flawed, is a tall order. And the real question is whether public agencies willfully desire compliance. At present there is little recourse the public or media has to compel compliance. In instances we believe records have been wrongfully withheld, our only current option is to appeal to the Columbia County District Attorney's Office, which then offers an opinion — often months afterward — on the request and the public agency's response. Certainly, in this regard, having a public records advocate or associated deputy to expeditiously take on that task, as opposed to a lengthy appeal to the district attorney, would be beneficial.
Further complicating matters is that, when the public agency disagrees and opposes the district attorney's finding, it can file a lawsuit in circuit court challenging it. In our experience, the district attorney's office is unlikely to press forward in lengthy litigation, and instead will leave it up to the petitioning body — the media or public — to answer the lawsuit. Absent that very expense option, the agency can safely withhold the documents in question without recourse.
There are other ways government officials and agencies that desire secrecy — a minority, to be clear — can sidestep the law. One is the common practice of having expensive attorneys review every whipstitch of information prior to release of any non-commonplace document, and then passing the attorney fee on to the requestor. Agencies can be asked to waive such fees, per the law, especially if release of records would serve the public benefit. But we have not found government fee waivers to be common practice. Have you?
Other, more nefarious tactics include the use of private email accounts and the widespread use of private smart phones in government. The explosion of high-tech personal devices has provided unscrupulous officials with an all-too-tempting network by which to avoid public accountability and archival of public documents. Using private email accounts, holding conference calls over private cell phones, or even just bypassing public meetings laws by using extensive email chains, has given bad officials a free hand to illegally meet and conspire.
Even in those situations in which the press becomes aware of conspiratorial actions, acquiring proof or — dare we say — actually gaining possession of those clandestine correspondences is exceptionally difficult. The offenders are in an easy position to delete illegal communications, and because they didn't occur through an official network, such as a publicly assigned email account or over a public phone service, there is no public record. And even if there was shady correspondence over a public email server, the fees to gain access to public email, and the corresponding attorney reviews, are astronomical.
It also defies logic that agency officials in possession of damning documents would willfully release, or even admit ownership of, those documents upon request.
The only means we, the press, have to get those documents is the rare occurrence of someone leaking them, or if we can pony up the money for access to private or public email accounts.
Not easy, or cheap.
The governor's proposal on public records is a start, but absent sharper teeth it's hard to say whether it will have any positive outcome for champions of transparency. Arguably the most effective revision to Oregon's government records law would be to ensure election of only those public officials who value government transparency, who genuinely seek partnership with an informed citizenry.
Absent this occurring anytime soon, however, we'll take whatever pro-transparency revisions, and momentum, we can get.