A3
THE ASTORIAN • TUESDAY, OCTOBER 8, 2019
Brown delays releasing public records,
defi es early promises of transparency
By HILLARY BORRUD
The Oregonian
Nearly fi ve years have
passed since then-Gov. John
Kitzhaber left offi ce amid
an infl uence peddling scan-
dal and a backlog of public
records requests from jour-
nalists seeking information
about the governor and fi rst
lady’s dealings.
In response to the records
pileup, lawmakers in 2017
passed Oregon’s fi rst pub-
lic records deadline, giv-
ing govern-
ments
15
days to hand
over doc-
uments or
cite a legal
reason
to
withhold
Kate Brown
them.
But the
governor’s
well-staffed
offi ce is now relying on
exceptions intended for
small rural school districts
or tiny cities with scant
staffi ng to justify withhold-
ing public records for nine
weeks or longer.
The new law, spear-
headed by Attorney Gen-
eral Ellen Rosenblum, con-
tains broad exceptions to
the 15-day deadline that
lawmakers granted at the
request of school districts,
small cities and other local
governments. Those small
public bodies worried about
being held to strict dead-
lines they lacked the staff-
ing to meet.
Two years in, however,
Oregon’s highest elected
offi cial — Gov. Kate Brown
— is also relying on those
exemptions to justify taking
months to turn over public
records. And there are signs
a high-profi le agency under
her direction, the Depart-
ment of Human Services,
might also employ them.
The Oregonian learned
of the situation as two
requests fi led in mid-Au-
gust languished for more
than six weeks. In recent
days, Brown’s Govern-
ment Accountability Attor-
ney Emily Matasar said it
could take her at least nine
weeks total to fulfi ll those
‘IF YOU’RE CONSISTENTLY HAVING A BACKLOG OF
REQUESTS, THE ANSWER TO THAT IS NOT TO DELAY
RESPONSES FOR MONTHS. THE ANSWER IS TO HIRE
MORE STAFF … IT’S REALLY A POLITICAL CHOICE
NOT TO STAFF YOUR OFFICE TO MEET YOUR
OBLIGATIONS TO THE PUBLIC AND TO GET
PUBLIC RECORDS OUT TO THE PEOPLE
WHO ARE PAYING FOR THEM.’
Rachel Alexander | vice president of the Society of Professional Journalists Oregon Territory board
requests. Other journalists
are still waiting to receive
responses to public records
requests they fi led with
the governor’s offi ce in
mid-July.
When asked about her
offi ce’s public records
backlog in a Sept. 17 inter-
view, Brown asked her
senior adviser and commu-
nications director Chris Pair
to respond instead.
“We’re under an unusu-
ally high volume because
of three signifi cant events,
right?” Pair said. He pointed
to requests related to the
Oregon Senate Republi-
cans’ walkout over a cli-
mate change bill in June and
the Brown administration’s
role responding to protests
in Portland this summer.
“We had several requests
and many of those were
large,” Pair said.
Lastly, he cited public
records requests related to
the September resignation
of Oregon’s public records
advocate, who attributed her
decision to pressure from
Brown’s staff to secretly
work to advance the gover-
nor’s public records policy
goals.
Under the 2017 public
records deadline law, Ore-
gon governments can take
longer than the 15-day
deadline if the timeline
would be “impracticable”
because “of the volume
of public records requests
being simultaneously pro-
cessed by the public body.”
They can also take longer
if the employee who would
handle the public records
request is out of the offi ce.
But according to the
most current attorney gen-
eral’s public records man-
ual, issued by Rosenblum
this year, to invoke the “this
agency is overwhelmed and
running behind” or “every-
one is on leave” exceptions,
“the public body carries the
burden to demonstrate that
one of these exemptions
applies and the exemp-
tions are intended to apply
– either to very small bod-
ies or in unusual circum-
stances. Public bodies with
the resources to adequately
staff its public records
requests are expected to do
so.”
Brown has chosen to have
just one person, Matasar,
handle virtually all of her
public records responses.
The governor’s nearly
70-person staff includes a
communications team of
six, but those employees
almost never handle pub-
lic records requests, deputy
communications director
Kate Kondayen wrote in an
email Friday. Instead, they
write press releases, answer
journalists’ questions, draft
talking points and media
strategies, arrange some
of the governor’s pub-
lic appearances and create
material for the governor’s
social media accounts such
as upbeat Tweets and videos
of Brown and First Gentle-
man Dan Little’s recent
meeting with endurance
athlete Colin O’Brady.
Rachel Alexander, vice
president of the Society
of Professional Journal-
ists Oregon Territory board,
said government offi cials
often tell reporters they are
swamped by massive public
records requests.
“If
you’re
consis-
tently having a backlog of
requests, the answer to that
is not to delay responses for
months,” Alexander said
in an interview on Friday.
“The answer is to hire more
staff … It’s really a politi-
cal choice not to staff your
offi ce to meet your obliga-
tions to the public and to
get public records out to the
people who are paying for
them.”
Journalists knew of the
weaknesses in the 2017
records deadline law and
as a result, they lobbied the
Legislature to pass a law
this year to allow district
attorneys and the attorney
general to impose penalties
on governments that fail to
comply, Alexander said.
However, the public can-
not appeal to district attor-
neys or the attorney general
when elected offi cials such
as the governor or a state
lawmaker assert a right to
records delays or denials.
“As you’re fi nding with
the governor, there’s kind
of a loophole for elected
offi cials,” Alexander said.
“It’s really easy for elected
offi cials to fl out the law
because there’s no mecha-
nism to hold them account-
able other than to hire a law-
yer and sue them, and that’s
not an affordable option for
a lot of people.”
There is no requirement
that lawyers handle public
records requests and Ore-
gon governments routinely
rely on non-attorney staff
to get the work done. But
Kondayen said the legal
input is critical for the gov-
ernor’s offi ce.
“Our public records
requests have to be reviewed
by an attorney to ensure that
we are meeting the require-
ments under Oregon law
to release all records to the
public,” Kondayen wrote
on Friday. “We need to get
it right the fi rst time and be
completely forthcoming in
release of public records,
and Emily is the person that
makes that happen.”
Public records previously
obtained by The Oregonian
revealed the governor’s
communications team does
have some involvement in
public records requests: In
2018, Kondayen strategized
with Department of Human
Services offi cials regard-
ing the potential to strate-
gically delay a response to
The Bulletin newspaper in
Bend.
Before McCall’s resigna-
tion on Sept. 9, journalists
and other members of the
public had submitted 146
public records requests to
Brown’s offi ce. That’s the
same number of requests
Brown’s offi ce received
in 2018. The number of
requests has since reached
the total number of requests
Brown received in 2017,
166.
Of the 18 requests this
year predating McCall’s
resignation that had yet to
be fulfi lled as of Friday,
fi ve were fi led in early to
mid-July. All were fi led by
journalists and with one
exception, they seek corre-
spondence and other docu-
mentation of Brown’s work
on the controversial climate
change bill at the center of
a state Senate Republican
walkout this year, as well as
any earlier work her admin-
istration did to develop a
carbon emissions pricing
policy.
The fi fth and earlier
request — fi led July 9 —
is from a small newspaper
in Eastern Oregon regard-
ing a high-profi le local rail-
road project. That county
rail project received state
funding over the summer,
after state transportation
offi cials abruptly changed
course from their previous
reticence toward the proj-
ect, the Malheur Enterprise
reported.
As for the Depart-
ment of Human Services,
where Brown has pledged
to improve public records
responses, it recently began
including a caveat in form
emails
acknowledging
requests.
This week, the agency
told a reporter for The Ore-
gonian it would stick to the
15-day deadline. That is,
unless “DHS asks you for
more information,” “the
staff needed to fi nish the
request are unavailable”
or “the number of other
requests being worked by
DHS makes the deadline
unrealistic.”
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