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The momentum for change built during 2014-2016 culminated in the biggest legislative changes on Oregon’s Public Records law since enacted 44 years earlier.  Governor Brown signed four key bills:  SB 106, SB 481, HB 2101 and HB 3361.

Public Records Advocate

Governor Brown requested SB 106 (2017) to establish a Public Records Advocate and Pubic Records Advisory Council.

The Public Records Advocate has several duties.  First, when asked, the PRA will provide facilitated dispute resolution (“mediation”) for public records disclosure disputes arising from requests to state agencies and may mediate disputes between requesters and cities.

Some people confuse mediation with arbitration.  Arbitrators decide who wins a legal dispute.  A mediator does not decide matters.  Instead, a mediator facilitates communication between the parties to help them settle their disputes.  Good mediators help both parties identify their true concerns and analyze how to address them.  For example, if a requester seeks “any and all” records on a topic, a mediator can work with the person to narrow the scope of the request and, perhaps, tailor it to the way an agency keeps records.

Second, the Public Records Advocate will train state and local public bodies on the best practices for processing and responding to public records requests.

Third, the Public Records Advocate may provide guidance to state and local public bodies on public records processing and law.

Fourth, the Public Records Advocate chairs the Public Records Advisory Council.

Public Records Advisory Council

In short, the PRAC’s job keep up the momentum for positive change in public records law.  It is to monitor public records practices in Oregon and elsewhere, identify areas for improvement, and recommend changes.  Also, the PRAC serves as a supervisor of the Public Records Advocate: it may suggest changes to the facilitation role and may recommend firing the Public Records Advocate.

My Opinion.

As I analyzed the Secretary of State’s audit and after I reviewed the proceedings and report of Attorney General’s Task Force, it seemed obvious that the Public Records Advocate is a critical component to breaking logjams in the system.  I explain why below.

A citizen seeking public records faces three possibilities: (1) The records are online already, (2) The request is “routine” and there is no problem or (3) the request is “complex,” which is when conflicts arise.  Often the conflicts can be addressed through mediation and education.  I prepared the following “issue tree” for visual learners before the 2017 legislative session.

Public Records Issue Tree before 2017 law changes.

Testimony on SB 106 confirmed the experience that requesters and public bodies often can resolve many issues by talking and never need to invoke legal process.  (For example, Les Zaitz and Jeff Merrick).  Many requesters fear that a narrow request will miss the documents they want.  However, a broad request can be an expensive burden on the public agency.  Open communications through a facilitator should help both sides identify opportunities to speed production.

Exemption questions can slow production and increase costs.  When public employees worry about disclosing exempt material, the yellow caution light flashes.  If agencies then employ their attorneys to review material, costs skyrocket.  As the Public Records Advocate trains public bodies all over Oregon, agencies should gain confidence in their own judgment.  Also, they may request free advice from the Public Records Advocate under SB 106.

Certainly, high-profile disputes will continue to arise under the Public Records Law.  Nevertheless, I believe employing the Public Records Advocate will be a net savings to taxpayers when one considers the saving of staff time, attorney time and even the mental distraction from other work that arises when public employees are uncertain how to comply with ALL of their obligations and, worse, then are accused of intentionally delaying or denying requests without good cause.

The methodical approach beginning in 2015 of asking what are the problems, why, and identifying potential solutions resulted in the above improvements plus other actions that promise a better future for addressing public records requests.

Jeff Merrick, Attorney and Mediator

(c) 2018 by Jeff Merrick and Merrick Law, LLC.

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