John Kroger Should Fix Oregon's Public Records Law

By Bill Harbaugh, a professor of economics at the University of Oregon. His most recent research uses fMRI brain scans to study why people give to charity. In his spare time he tries to change things.

Oregon has horrible public records laws. They can be fixed overnight.

In his inaugural speech President Barack Obama said that he would make sure our federal government would "do our business in the light of day." He meant it -- his first official act was an executive order strengthening the federal FOIA act. Oregon needs to do the same thing. Our public records law gives too much discretion to state agencies and too little power to citizens who want to know what those agencies are doing. We need change. We can get it quickly. Here's how.

In theory, Oregon's public records law makes it simple for people to get documents that are in the possession of a state or local agency. An email to the agency head saying "this is a public records request for" followed by a description of the document is all it should take. The agency is required to make a pro-forma response "as soon as practicable" and make "proper and reasonable" efforts to get you the documents promptly.

In practice things don’t work this way. Oregon law doesn't tell agencies how long they have to respond and some use this loophole with glee. The only recourse -- short of court -- is to petition Oregon’s Attorney General and ask him to order the agency to comply with the law. But with no firm deadline, the interpretation of "proper and reasonable" is all up to the AG. Former AG Hardy Meyers and his deputy Pete Shepherd routinely let state agencies take at least a month -- sometimes even two -- to produce even a single page document.

John Kroger, Oregon's new Attorney General, can change this overnight by using a more proper and reasonable definition of "reasonable and proper." The obvious choice would be the same 5-day standard that most other states use. In a pinch agencies could take longer, but only if they could justify it to the AG. Oregon would move, well, not to the front, but at least to the middle of the pack with respect to public records access.

I've posted more about this, including some practical information on how to get Oregon public records, at http://openuporegon.com.

Comments

  • Zarathustra (unverified)
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    One odd bit is that most people that I've met on the job, in Salem, are extremely conscious of Oregon's public records laws and think it allows the public scrutiny into the smallest details of their operations. Of course, it does no such thing. I really have never been able to tell if the sell job the politicos have done on the public has been swallowed by workers in Salem, or if that's an attitude they kop so that no one thinks of strengthening them.

    My simple summary of the whole situation vis a vis the ORS and the OAR is that the ORS makes things look nice and tidy, and the OAR permits functionaries to sidestep law they want to, whenever they feel like doing it. If the OAR are really so essential to day on day functioning, doesn't that say the laws are poorly written in the first place? Is that the scam? Pass a bill that seems to completely address some public demand, but write it so poorly that there have to be lots of administrative rules about how to actually implement it, which implementation allows functionaries to totally undercut the will of the legislature?

    That's not conspiracy theory. I have met with director level management of state agencies while the legislature was in the act of passing laws that explicitly banned what was being considered. In every case, when I brought it up as a concern, I was told summarily that it wasn't a problem, that's what the OAR are for. If you push the issue and ask, but what if, you simply hear that it never has stopped them yet. In sum, I think this is an excellent point, and the tip of an iceberg.

    The flip side is that what most would call agency arrogance is the base of their esprit de corps, which ain't all bad. Entities like DHS believe that they understand the situation they face far better than the public or legislature. They consider their responsibility to be a sacred trust, that the welfare of people is more important than politics and legal red tape. Coupled with education and experience, you have a belief that they are above regs, on a mission that only they fully understand. Day to day they do what they think is best in the situation. It is done in good conscience, but with much a priori cynicism.

    Sorry to digress, but this is at the heart of getting better public records laws, I really believe. The point would be that agencies like DHS don't think it would be a good idea. Besides the belief that there is enough transparency, they believe that they function better if the man on the street is fully aware of how they function. They would simply disagree and compromise their mission of delivering the services to that man on the street that he doesn't understand that he needs.

    This will also be resisted by IT. It simply wouldn't do to be able to compare one department's open source solution to another's $200/hour contract written solution, producing identical results. Seriously. WIC has that kind of contractor written solution, and FS uses a Word document. The only time I ever got called on the carpet was one time I mentioned, casually at lunch, that it would take one person about two weeks to port the WIC app to FS.

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    As someone who has used the public records law in Oregon on a number of occasions, I heartily agree with this post. There should also be reasonable cost restrictions. I've found that some public entities are appearing to jack up the cost of the records request in an attempt to make it much more difficult to acquire information.

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    This was printed two days ago at Loaded Orygun. I don't have an exclusivity clause with guest columns (since people who write are members and not guests), but I know BlueO does.

    It might be a nice thing to do to mention where it originally (as far as I know) appeared.

  • Zachary Vishanoff (unverified)
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    By default this professor has been the real leader at UO for quite a long time. Too bad BlueOregon usually chooses to not scrutinize University of Oregon mismanagement. The mainstream media does not either. It seems like there is a democrat-sports-media industrial complex in Oregon. I guess the topics Harbaugh raises must be too advanced for the usual BlueOregon writers.

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    TJ, sorry about that. I got it from Bill directly, and I haven't been to LO since you published it. I will be better about checking that out in the future.

  • Bill Harbaugh (unverified)
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    Hi TorridJoe and Jeff

    I apologize for the cross-posting. I'm new at this and it didn't occur to me that this might be objectionable. This has also been in the Oregonian's blog, and I've been trying to get it into some Republican one's as well. I guess I got a little excited.

    Bill H

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    No worries, Bill. It's your job to speak to the widest group you can. It's my blunder.

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    Bill, not your fault at all, and as I said you didn't do a thing wrong by me. But if you've posted in one place already, in subsequent postings a line about "also crossposted at..." is probably the proper course for the future.

    Jeff, not mad at you either, but I know you like to have the fresh goods so I thought I'd mention it.

    And we all seem to agree it's well worth reading!

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    I agree completely. As a reporter in Texas, I routinely used FOIA to gather information. I probably made at least a handful of requests a month, which is a lot for a non-daily paper covering a population smaller than the city of Gresham.

    Most of the time items were received within the window allotted by law, or we would receive an explanation of why it would take longer (such as when we needed something from well over a decade ago and it had to be located). Occasionally, though, we ran into roadblocks. On those occasions we had that rule to fall back onto and were able to contact the state AG for assistance. This allowed us to cover stories in a timely manner and uncover some things that the public needed to know, but was being kept under the table.

    The fact that Oregon does not have any standards for response time and cost is just ridiculous. While the records are supposed to be "open," some entities are able to subvert that process by either taking forever to produce the records or charging so much that they are not affordable.

    I know Kroger has talked about accountability. I think some fixes to the FOIA are a great way to start that.

  • Clatsopian (unverified)
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    Many Government critters use their Private email to do public business. It is rampant in this neck of the woods. There also needs to be some agency higher than the Dept of Justice to make sure requests are fulfilled. What happens when you FOIA the Dept of Justice? Yeah THEY are supposed to police.....uh...themselves!

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    Too bad BlueOregon usually chooses to not scrutinize University of Oregon mismanagement. The mainstream media does not either.

    Well, it's worth noting that BlueOregon is an all-volunteer operation - with no one having volunteered from Eugene.

    Generally speaking, though not 100% of the time, blogging is a derivative art - we comment upon what the media reports.

    If you've got some scrutiny you'd like to apply, by all means, I encourage you to send us a guest column. The link still works. If it's meaningful and well-written, we'll post it.

  • Zachary Vishanoff (unverified)
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    I have a follow up idea for you. A student(journalism) at UO has filed a appeal against the UO arena project which is sending the case to the Oregon Court of Appeals in Salem. I do not know what date the hearing will be.....yet. The Oregonian and Register Guard have been informed and refuse to report on it. There is lots of money and mega donor pride at stake here. UO had announced there would be a January arena(probably with Kulongoski there)groundbreaking ceremony back in December(it has not occured). Since your writers are so involved in politics and would like deserving state programs not to be cut how about one of them following up on this? We are talking about approximately 247 million in state dollars to be spent in this case. The UO arena is the largest project in the history of this area.

    I am no Democrat. Supposedly Democrats care about deserving human services programs in our state. The spin about UO athletics being self supporting is false as you may know. The Nike UO mega project will affect deserving state programs. If this is the forum where Democrats debate and scrutinize government activity would it makes sense for some of you to consider investigating this upcoming court case? I hope Democrat media will pull their weight and become interested in details. I can't do it all. If you interview this bright student who filed the appeal you will be quite impressed with him. It would be easy for you to contact the Oregon Court of Appeals and get his contact info. Details of my years of work on the UO arena mess are posted here in the videos at the top half of this youtube channel: www.youtube.com/luddite333
    

    Is there a chance any of you would study this case(Bowers vs. Eugene)? There is much at stake and I can only do so much. You could even simply call the Governor and ask when is the groundbreaking and ask is he going.

  • Steve (unverified)
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    Gee, now how will Portland City Council get anything done. Projects like the Tram and Convention Center Hotel would never happen it the truth is told.

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    An email to the agency head saying "this is a public records request for" followed by a description of the document is all it should take.

    Fine. But what is "THE document?" In my experience, these requests came in so broad --i.e. all documents relating to, say, the aforementioned "Mega U of O Nike Project" (which, BTW, I have no involvement with whatsoever)-- leaves the government employee who may support "open" government wondering what the requestor wants. Or, alternatively, producing reams and reams of paper so someone else can spend their weeks on end on a "fishing expedition." Or, the worse thing, being paralyzed with fear to ever say anything in the first place.

    That's not a definition of open government. And, I suspect, is more likely to keep bureaucrats from speaking honestly and frankly about their jobs and missions...if they know there are people out there looking to parse their every other word spoken in the course of their job duties.

    Just saying that if communicating at work becomes just more potential ammunition against us, why speak up? Why not just hunker down, lay low, keep your head down, and keep that pen in your pocket. Zip it! Loose lips sink ships.

    Just sayin'...

    Or not.

  • Bill Harbaugh (unverified)
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    Hi Frank

    Thanks for pointing out that there are two sides to this. I am sure that there are plenty - more than plenty - of people in state and local government who do a good job balancing their regular job responsibilities with their responsibility to make records public. And I'm sure there are plenty of citizens who abuse the PR system, trying to annoy officials just because they've done something they disagree with.

    I got involved with this because UO would not give me copies of their old affirmative action plans - which are supposed to be freely available on demand, on the internet, and in the UO archives. They stonewalled me for 6 months, and AG Hardy Meyer's and his deputy Pete Shepherd backed them every step of it.

    Eventually it turned out that they were hiding the documents because UO hadn't been following federal rules to update them annually, and that UO President Frohnmayer had been backdating them to attempt to cover this up.

    So, problems do arise. We need a system that doesn't burden agencies to much, but that ensures that people can find out what those agencies are up to - even when people high up in the state pecking order want to keep it hidden.

    This is why I think we need to limit the DOJ's discretionary powers on this - it makes the system simpler, clearer to all the parties involved, and less open to abuse or accusations of abuse.

    Yours, Bill Harbaugh

  • Zachary Vishanoff (unverified)
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    Or you can post my first video(there are six total) at your blog. Or if you will accept book reviews I will write a review of the excellent book titled "Whos Afraid of Niketown?" and relate the prophetic book to what is happening with Nike-urbanism development in Eugene now. I have written so many basic commentaries and letters to the editor on the UO/NIKE problem that that would be a bore for me and your readers.

  • Zarathustra (unverified)
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    Posted by: Clatsopian | Jan 30, 2009 8:49:39 PM

    Many Government critters use their Private email to do public business. It is rampant in this neck of the woods. There also needs to be some agency higher than the Dept of Justice to make sure requests are fulfilled. What happens when you FOIA the Dept of Justice? Yeah THEY are supposed to police.....uh...themselves!

    Good point. Last time I checked, it was pseudo-required to get things done. Correct me if I'm wrong, but most of the mail servers for domains ending in state.or.us have restrictions about sending/receiving email from domains it doesn't know. I believe this is in echoing corporate trends to shut down methods for legal service. I used to have fax numbers for key individuals at credit agencies, email list for State gov employees, email addresses for board members of various problematic corps that one must deal with, etc. Almost to a one, these methods have been restricted to a single portal, which is occasionally made deliberately odious.

    IMHO, the public should make it a bedrock requirement that any stadia using public funds must provide coverage of matches at those stadia to the public that subsidized it, for free.

    <h2>I would love to see Zachary's stuff.</h2>
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