Transparency Papers

Last year, Stephanie Stewart, land-use co-chair of the Mount Tabor Neighborhood Association, requested records related to the Water Bureau's reservoirs.

Stewart says the Water Bureau billed her $57.82 for having an official watch her read eight pages—then would not give her copies. 

"If a person can't read a public record without being charged for the time it takes her to read the public record, citizen oversight is dead," Stewart told WW via email.

That's just one example of how government can thwart the intent of Oregon's landmark 1973 public records law. 

As the Legislature moves toward adjournment next month, however, Attorney General John Kroger's high-profile effort to modernize that law is hitting resistance.

Oregon's Public Records Law embodies the idea that "the public is entitled to know how the public's business is conducted," according to the Attorney General's Public Records and Meetings Manual.

Unfortunately, more than 400 exemptions and the indifference of some records' custodians have undermined the law's effectiveness.

Last year, Kroger and his staff held public meetings around the state to assess the law's effectiveness. They got lots of complaints. Sometimes records custodians use high cost estimates to deflect requests; other times they hide behind exemptions. Yet other times they use long delays to avoid disclosure.

"There is a significant problem, and that's a total lack of certainty which creates suspicion and animosity for some people," says Tony Green, a spokesman for the Oregon Department of Justice.

In response, Kroger's team produced a giant of a bill—77 pages long in its current version—designed to eliminate loopholes and make response time and cost more standard and more reasonable.

That gesture won Kroger cheers from the media—helpful to a politician of Kroger's ambition—but got him crosswise with the state agencies and local governments that the bill would hold to a higher standard.

While state agencies grumbled privately about the costs of compliance, the Oregon League of Cities attacked the bill directly. Oregon League of Cities lobbyist Scott Winkels offers a number of objections to the bill, starting with its premise.

"I don't know that anybody's actually made the case that there's a problem with transparency in this state," Winkels says. He also says many cities lack the staff to respond to records requests as quickly or fully as Kroger's bill requires.

And records requests can be frivolous in some cases and overwhelming in others.

"Somebody asked the City of Tigard for every document related to land use going back to 1983," Winkels says. "That's a lot of records."

While Kroger makes a strong case for reducing delays and streamlining the "actual cost" public bodies charge for records, some of his adversaries question how committed he truly is to transparency.

In one pending disagreement, Marc Abrams, president of Local 1085 of the American Federation of State, County and Municipal Employees, which represents lawyers in the state Department of Justice, argues that Kroger's own team is sitting on a public record. And in the ongoing legal skirmish over records related to a DOJ investigation into contracting practices at the Oregon Department of Energy, Kroger's attorneys are now arguing that certain records it deemed public in January should now be withheld.

"Although the state initially stated that the materials would all be subject to disclosure under the public records law, it no longer believes that to be true," DOJ attorneys stated in a Marion County court filing in the case last week.

Green says neither example conflicts with Kroger's desire for transparency. In the first instance, he says, DOJ anticipates being sued by an employee, and the document Abrams wants is relevant to DOJ's legal strategy and therefore exempt from disclosure. In the ODOE investigation, Green adds, the agency mistakenly made public four employees' records that it should not have and is now seeking to rectify that error. "It was our mistake, and we are seeking to remedy that," Green says.

The fate of Kroger's Senate Bill 41 now lies with the Senate Rules Committee, which includes one of Kroger's biggest critics, Senate Minority Leader Ted Ferrioli (R-John Day). Ferrioli thought Kroger stonewalled his 2010 requests for records relating to a former DOJ attorney's controversial work on liquefied natural gas.

"Based on my experience with him, I'm not sure he's interested in transparency at all," Ferrioli says. "This bill is misdirection by a masterful political magician.” 

After two work sessions and three hearings, even one of SB 41's strongest proponents, the Oregon Newspapers Publishers' Association, is losing faith.

"There's now a lot of stuff in the bill that's pretty bad," says ONPA board member Tim Gleason. "The 'timely response' section is so convoluted, you won't get records any faster."

IMAGE: ww photo illustration

WWeek 2015