Legislators are weighing a proposal that would put Oregon's attorney general and district attorneys in the position of defending public records requests in court.
Oregon law allows anyone to request records from any public entity, from school districts to state agencies. In some cases, the person requesting the records and the officials keeping them may disagree on whether the records are subject to the state's public disclosure requirements.
Right now, under the law, a person who asks for records and is denied can appeal to the local district attorney — or, in the case of state records, to the attorney general — to step in and order their release. But if the district attorney or attorney general does so and the public officials still don't believe they should have to comply with the request, they can file a lawsuit — not against the state prosecutor who issued the order, but against the person who asked for the records to be disclosed.
House Bill 3399 would change the way the system works. Instead of suing the requestor, a public entity would be required to sue the district attorney or attorney general directly.
HB 3399 is sponsored by state Rep. Karin Power, D-Milwaukie, who has become a leading voice in the Legislature for strengthening Oregon's public records laws. The idea came from Gov. Kate Brown's office, which is backing the bill.
“Under current law, public bodies can seek guidance from a court on questions of public records disclosure only by suing records requestors, who are often journalists,” said Kate Kondayen, Brown's press secretary. “Plain and simple, that’s not a good system. Journalists and members of the public should be able to request government records without putting themselves at risk of being sued.”
Kondayen pointed to a 2017 case in which the Malheur Enterprise was sued because of a public records request it filed with the state's psychiatric review board. In that case, Brown stepped in and personally ordered the records to be released to the Enterprise.
“Even if we had given up and let the state keep its secret, we faced the prospect of paying the state’s legal costs because it sought an award for those as part of its lawsuit against the Enterprise,” Les Zaitz, owner and publisher of the weekly newspaper, wrote in a letter to lawmakers this month. (Zaitz is also editor of the Salem Reporter, an online news site that partners with Pamplin Media and EO Media Group on the Oregon Capital Bureau.)
At about the same time as the Enterprise incident, a similar lawsuit was playing out in Portland. Journalist Beth Slovic requested in late 2016 a list of employees on paid administrative leave from Portland Public Schools, the state's largest school district. The district went to court to keep the records confidential, suing Slovic and PPS parent Kim Sordyl, who also sought the information, after Multnomah County District Attorney Rod Underhill stepped in and ordered the district to release them.
Portland Public Schools lost the case, and in early October 2018, a Multnomah County judge ordered the district to pay more than $200,000 in legal fees.
At the time, Slovic was employed part-time by the Portland Tribune, which stepped in as a respondent in the lawsuit. The Tribune was represented by Portland attorney Jack Orchard, one of Oregon’s most experienced media lawyers.
The current law has flaws, Orchard acknowledged. But he's leery of the solution Power and Brown have proposed. “I'm not sure that it really advances the process and, in fact, may make the process even more expensive,” Orchard said.
Orchard isn't the only protagonist from the Tribune's legal battle who isn't sold on HB 3399. Underhill's office expressed “serious concerns” about the bill in a letter to House Judiciary Committee members. HB 3399 “seeks to flip the role of the district attorney from an impartial decision-maker to that of an advocate,” according to the DA’s letter.
Jeff Nitschke, Clackamas County deputy district attorney, agreed. “When I am an advocate, my view on things is very different than when I am an impartial arbitrator,” Nitschke told the committee Thursday, April 4.
‘Rightful and legal access’
Orchard's worry is that prosecutors don't have the same vested interest in obtaining records that reporters and others who have requested them do. Having to defend someone else's records request in state court would put them in “a practical and ethical bind,” he said, and the result may be that they prefer to settle the case instead of waging an expensive and drawn-out court battle.
“I'm not sure that you get … the same level of commitment and same push forward as you do when the requesting party is in control of how the litigation's managed,” Orchard said.
It's “very unlikely” that a district attorney or the attorney general would choose not to defend their own order, Kondayen argued, and if it does happen, HB 3399 still allows the person who made the initial records request to step in and argue their case in court.
“This is the very first time I have ever heard the argument that DAs might be afraid to go to court,” Misha Isaak, Brown's deputy general counsel, said, testifying in favor of HB 3399 on Thursday, April 4. “DAs take bold legal positions, and defend those legal positions in courtrooms, every day.”
Isaak urged committee members to not “let the perfect be the enemy of the good.”
He added, “Our current system, in which public bodies sue requestors, is a bad system, and this bill is an improvement on that bad system.”
Zaitz also testified, pointing to the lawsuit against the Malheur Enterprise as an example of what needs to change.
“Citizens or reporters seeking their rightful and legal access to important records ought not face financial punishment at the hands of government officials who prefer secrecy over sunshine,” Zaitz told lawmakers. “Right now, democracy needs more, not less, information about government.”
The House Judiciary Committee is expected to take up House Bill 2353, another public records-related bill that Power is sponsoring, on Monday, April 8. It would allow a district attorney, a judge or the attorney general to fine a public entity $200, order it to waive or reduce fees associated with the request, or both, if it fails to respond to a public records request in a timely manner.
“Ultimately, we need to make sure that these entities are complying,” Power said.
Lobbyists for Oregon's cities, counties and special districts argued against Power's proposal at a committee hearing last month, saying that some of their members still need more training after the Legislature made significant changes to Oregon's public records laws two years ago.
Journalists and other advocates, including Portland Tribune employees, said that without the threat of penalties, some public entities may simply choose to flout the law instead of providing records on request.
The Judiciary Committee also held a hearing April 4 on House Bill 3224, a bill sponsored by Reps. Jennifer Williamson, D-Portland, and Carla Piluso, D-Gresham, requiring district attorneys to publish written policies on how they handle cases. Those policies would have to explain how the district attorney decides whether or not to file charges, among other prosecutorial decisions.
Piluso called HB 3224 “a common-sense measure to increase transparency in district attorneys' offices.”
The bill is set for further consideration Monday, April 8.
Other public records-related bills are moving forward as well. In 2017, the Oregon Legislature created a temporary task force called the Public Records Advisory Council. The role of council is to recommend changes to Oregon's public records laws and advocate for a transparent and open government.
PRAC was only authorized through 2020. The committee has asked the Legislature to make it a permanent body, a request the House appears set to approve as soon as April 8. House Bill 2430 received unanimous support to move out of committee last month.
Another PRAC-requested bill, House Bill 2431, is in the hands of the Legislature's budget-writing committee. HB 2431 requires state agencies to report annually on how many public records requests they received, how many remain outstanding and how many fee waiver requests they have granted and denied. It also cleared its original committee with no opposition.