Eugene weekly., May 26, 2016, Page 13, Image 13

Rosenblum, appointed by Kitzhaber (and married
to former Willamette Week publisher Richard
Meeker), explains the importance of access to
public records: “I think people have a right to
know what their public servants are up to,” she
tells EW. “You elect me to do a job, and I don’t
think you’re electing me to do that job in secret.”
The public’s right to access public records
serves a purpose: to keep government accountable
and transparent. And when a public agency throws
up a barricade to accessing public information,
red flags go up, especially for a newspaper.
Red flags have gone up for many around the
state — journalists, public records lawyers, citizens,
the Lane County District Attorney’s office and the
AG’s office — and they’ve been planted into three
areas that need overhauls: a glut of exemptions
(more than 500 and counting in Oregon — more
than double that of the next highest state, Florida),
fees and deadlines.
On Oct. 23, 2015, Rosenblum announced
the “Attorney General’s Public Records Law
Reform Task Force, a group designed to review
and recommend improvements to Oregon’s public
records laws.”
Rosenblum and Michael Kron, special counsel
to the attorney general’s office, are traveling around
Oregon to gather testimony at public hearings with
some of the task force, including an array of about
20 stakeholders like State Senator Jeff Kruse and
Oregonian investigative reporter Les Zaitz.
The task force has been to Salem and came to
Eugene May 9. Rosenblum will hold Portland’s
first public hearing May 26, and the task force will
host a public meeting in Salem May 27.
For the 2017 legislative session, the task
force will make recommendations to the Oregon
Legislature, which has largely opposed suggested
reforms to public records laws in the past. If the
Legislature votes to adopt the recommendations,
however, real reform could come to Oregon’s state
agencies. And as the states go, so will the counties,
municipalities and, perhaps, even Eugene.
THERE’S NO SUNSHINE
WHEN FROHNMAYER’S GONE
In 1973, in the wake of the Watergate scandal,
Oregon joined many other states in enacting sunshine
laws, or Public Records and Public Meetings Laws,
as a way to keep government transparent, accessible
and accountable to the public.
Yes, Tricky Dick paved the way for transparency
and the Oregon Public Records Act (OPRA). And
special interests have been chipping away at it
ever since.
“When I first started as a reporter in 1984, the
Oregon Public Records law was still universally,
for the most part, useful,” Brent Walth explains.
“What I’ve seen over time is an evolution of
government agencies shifting in their posture to:
‘We are going to thwart and frustrate and block as
many of these requests as we can.’”
Walth, a Pulitzer-winning editor formerly of the
The Oregonian and Willamette Week, is now an asso-
ciate professor at the University of Oregon’s School
of Journalism and Communication. He is currently
teaching his students about public records law.
“It’s getting worse all the time,” Brent Walth
says. “I’ve yet to see an Attorney General since
[Dave] Frohnmeyer who was serious about
enforcing the spirit of the public records law. That
sends a loud message across all state and local
government that if you want to hide something,
you can do it.”
Bill Harbaugh — University of Oregon
economics professor, author of UO watchdog
blog UO Matters and public records advocate —
recalls Frohnmayer’s tenure as AG fondly as well.
“He was very enthusiastic about enforcing
the law,” Harbaugh says. “He would tell state
agencies, ‘Jump to it.’”
Under Frohnmayer’s reign (1981-1991),
Walth recalls, the Attorney General’s office
decided in favor of disclosing public records
requests in dispute about 65 percent of the time.
“After Frohnmayer, that changed dramati-
cally,” Walth says, “particularly under Myers.”
Myers, as in Hardy Myers, AG from 1997 to
2009, was known for “rubber-stamping” denials
to public records requests. Harbaugh calls
Myers “notoriously bad” on enforcing public
records law.
Following Myers as AG came John
Kroger (2009 to 2012), of the 2010 Kroger
Report, which made sweeping suggestions
for reforming OPRA. While many in pro-
transparency circles supported the suggested
reforms, a storm of lobbyists for state and
local agencies came down against the
recommendations.
“When Attorney General Kroger was
in office, he was pushing very strongly to
try to reform the Oregon Public Records
Act,” lawyer David Bahr says. “He did not
succeed.”
Bahr is a local public records and
FOIA (Freedom of Information Act,
or federal public records law) attorney
who is currently serving on the FOIA
Committee under the National Archives
and Records Administration. For more than two
decades, Bahr has lectured nationally about state
and federal public records laws.
The Kroger conundrum leaves reform advocates
like Bahr, Harbaugh and Walth skeptical that any
overhaul is possible in Oregon, but current AG
Rosenblum, with ostensible support from Gov.
Brown, has picked up the torch regardless. She
says the AG’s office has a more narrowly focused
approach than Kroger, who presented more of a
far-reaching “omnibus” to the Legislature.
“I’m not Attorney General Kroger, and I
don’t necessarily plan to follow what he did,”
Rosenblum says. “This is really a whole new
effort here, and I want to be very clear because
[Kroger’s effort] didn’t work out.”
THE GREAT
EXEMPTION BLOAT
There’s a reason Rosenblum’s task force is
addressing exemption bloat first: It has the best
chance of reform because all sides seem to be for it.
The Kroger Report shows how exemptions —
or codified reasons allowing government officials
to withhold sharing public records — are not just a
concern for the public but also government officials,
who themselves have trouble keeping track of them.
“There are a number of exemptions that I’m
glad that they’re reviewing to see that things are
handled consistently,” says Lane County District
Attorney Patty Perlow, who decides on appeals
for local public record request denials.
In 1973, when OPRA was first instated, Oregon
had 55 exemptions. In 2010, the Kroger Report’s
count was 403. As of 2016, Oregon’s exemption
count has ballooned to 544. In contrast, FOIA
has a total of nine exemptions (granted, they are
broader categories).
“Everyone who addressed the subject seemed
to agree that re-organizing and compiling various
exemptions — which are scattered throughout the
statute books — would significantly improve the
law and reduce costs,” the Kroger Report states.
Rosenblum says the number of exemptions is
high because of special interests.
Bahr agrees: “The problem is — what happens
every legislative session — the lobbyists come
and insert more exemptions.”
Before 2016, researching exemptions was a
nearly impossible task. Now, for the first time,
Kron and his team compiled a spreadsheet with all
544 exemptions in one place, which can be found
on the attorney general’s website.
“Before that spreadsheet existed, you would
have basically had to figure out where in the tens
of thousands of pages of statutes,” Kron says. “It’s
the most complete catalogue ever.”
While it’s an improvement to have exemptions
searchable in one place, Walth maintains that
government officials continue to withhold public
records by citing an exemption, even though they are
not required to. Using exemptions is voluntary and
up to the discretion of the individual officer.
“The agency is not required to withhold records,”
Walth says. “They simply choose to 99 percent of
the time.”
But as Harbaugh points out: “The fundamental
problem isn’t the exemptions; it’s the fees.”
eugeneweekly.com • May 26, 2016
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