Request public records in Oregon and you put yourself at risk of being sued. That needs to change. With some amendments, House Bill 3399 would be a useful change in the law.
Public agencies and corporations have sued Oregonians in recent years in at least a few examples.
Parents and a journalist were concerned that Portland Public Schools was putting staff on paid administrative leave for alleged wrongdoing and paying the employees for years without completing the investigations. When a parent requested a list of employees on paid administrative leave, the district sued her. Journalist Beth Slovic requested similar information and was also sued. The parent and Slovic won.
A similar thing happened to the Malheur Enterprise. It requested records from the state’s psychiatric review board to determine how often people re-offend after they are no longer under supervision. The newspaper was sued by the state board. Gov. Kate Brown intervened in the case and ordered the records released.
When The Bulletin’s editor, Erik Lukens, requested information about how the public’s money is spent in Oregon’s clean fuels program, he, too, was sued. Chevron sued Lukens and the state to block the release of the records in question. The case has not yet been decided.
Why should a member of the public have to raise the money to hire a lawyer because they make a public records request? They shouldn’t. Les Zaitz, owner and publisher of the Malheur Enterprise, summed it up well in testimony on the bill. “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 said.
House Bill 3399 solves the problem — in a way. If a state agency wants to block disclosure of records, it would have to sue the attorney general. If it is other than a state agency, the appropriate district attorney would have to be sued. The change would remove the immediate financial burden from the requester, though they also would be free to intervene in the case.
The solution is not without critics and complications. Rod Underhill, the Multnomah County District Attorney, worries it changes the role of the district attorney from a neutral arbiter in a public records dispute to an advocate for the release of records.
It’s probably easiest to understand that concern with a hypothetical example. Let’s say The Bulletin requests records from the Bend-La Pine Schools. The district denies the request. The Bulletin can appeal the denial to the local district attorney. The district attorney works sort of like a judge in that instance and makes a decision — let’s say in favor of The Bulletin.
Under current law, the district could sue The Bulletin to fight the DA’s decision. Under HB 3399, the district would sue the DA. The DA, Underhill argues, would then go from being a neutral arbiter to having to advocate for release of records. That doesn’t seem like a huge burden for district attorneys. Advocacy is what they do. And they would be arguing for a decision they made.
But there are other issues. Nick Budnick, board member of the Oregon Territory Society of Professional Journalists, pointed out a few. For instance, the bill provides an incentive for the attorney general or a local district attorney to advocate for secrecy. If they advocate that records should be secret in a dispute, they can avoid the cost and other burdens of being sued. Some of that should be fixed with an amendment requiring the state pays any associated expenses. It is the public’s public records law, after all.
House Bill 3399 is better than what Oregon has now. Gov. Brown backs this change in the law and so should the Oregon Legislature — with some tweaks.