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2014:  Kitzhaber Reporting Raises Issues.

In 2014, Governor Kitzhaber sought reelection.  During the campaign, the press reported concerns about the role of the Governor’s fiancée Cylvia Hayes, sometimes referred to as “Oregon’s First Lady.”  It was alleged she improperly earned money because of her close relationship with the Governor.

The press reported frustration over the handling of its public records requests.  They alleged public bodies failed to comply with the law and, worse, may have done so to prevent release of information that could have damaged Governor Kitzhaber’s reelection chances.

The Center for Public Integrity judged Oregon a failure for integrity in 2015.  Holes in Oregon’s public records law accounted for part of our “F” grade.  It stated:

“The state has no open data laws or independent agency charged with overseeing citizen access to government. Oregon’s Public Records Law is also full of exemptions – at least 480 – and lacks firm deadlines for delivery of public records. The Kitzhaber debacle underscored the consequences when public information doesn’t flow freely or in a timely way; substantive deadlines might have allowed voters a closer look at Kitzhaber’s issues before he was reelected, only to resign a month after his swearing-in.’

2015 Efforts and Actions.

Leaders vowed action.

Upon replacing Kitzhaber,  Governor Kate Brown urged, “We must seize this moment to work across party lines to restore the public’s trust [and] strengthen laws to ensure timely release of public documents.”  Governor Brown obtained passage of SB 9 (2015), which ordered the Secretary of State to audit agencies’ practices relating to public records and to recommend improvements.

Secretary of State Atkins published her audit report in November 2015.  She found most requests are routine and not problematic.  However,  so-called “complex” requests produce challenges, and some requesters believed agencies deliberately delay or block the release of public information.  Also, inconsistent responses and fees among agencies frustrated requesters.

The audit recommended improvements.  Among them were: (1) Department of Administrative Services (DAS) should provide agencies guidance and training; (2) State agencies should adopt goals for time deadlines; (3) Consistent fees would improve trust, (4) Agencies should use technology better; and (5) Mediation to facilitate communication between requesters and public bodies would help.

2016:  Executive Order, Legislation and More Suggestions for Reform.

Governor Kate Brown acted upon the Secretary of State’s recommendations in Executive Order 16-06 (1/26/2016).

The Governor ordered the Department of Administrative Services to develop model policies for adoption by agencies.  She ordered DAS to implement all of the Secretary of State’s audit recommendations, especially to streamline and track pubic records requests and develop uniform fee schedules.

Additionally, Governor Brown asked for and signed HB 4135 (2016), which orders the State Chief Information Officer to:

“Develop standards, protocols and procedures for executive department agencies to use in searching for and identifying requested public records that are retained in electronic form and to use in fulfilling public records requests that seek records in electronic form.’

HB 4135 also instructs DAS to provide technical assistance to executive department agencies and coordinate with executive department agencies to help in the retention and production of public records and to ensure consistency between agencies in the production of records.

Improving access to public records remains a bi-partisan goal.  Republican candidate for Secretary of State Dennis Richardson noted, “The people and the press deserve access to our public record without being stonewalled or having to pay outrageous fees.”  He promised to act in an impartial and non-partisan manner if elected.

Oregon’s Democratic Attorney General, Ellen Rosenblum, led a Public Records Reform Task Force.  Stakeholder members met diligently throughout the year to discuss the issues from all perspectives: the press, the public, large public bodies, and small special districts.  In December 2016, the task force summarized its key conclusions and recommendations as follows:

  • Foster a culture of transparency within government.
  • Establish timelines for responding to public records requests.
  • Simply and clarify [the 550+] exemptions from public disclosure.
  • Look for electronic solutions to improve public access in the digital age.
  • Create a Public Records Advocate to assist public records requesters and public bodies.
  • Find a way to ensure that costs to not prevent meaningful access.

All of the above set the stage for legislation and other action in 2017.

Jeff Merrick, Attorney and Mediator

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

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