July 21, 2015

Redacted roundup: winners and losers in Oregon

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Gov. Kate Brown

Gov. Kate Brown/FLICKR

Governor Brown signs Senate Bill 9, directing the State Auditor in the Secretary of State’s Office to conduct a performance audit of state agency practices in disclosing and retaining public records.

The Oregon Legislative session now in the bag, this month’s offering takes a look at the latest in transparency issues. Setting politics aside, with transparency our only metric, here are the highlights from another season of legislation.


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Winners

The big coup, if you can call it that, is Senate Bill 9. Kate Brown’s public records audit bill sailed through the Legislature and earned her John Hancock June 15. The bill directs the Secretary of State to conduct a performance audit of public records retention and disclosure practices statewide. Those following the audit can expect to see an analysis and recommendations from the Audits Division in November.

As previously noted in this column, these types of reviews been done before, and those of us who support such efforts are a bit fatigued by the way in which they keep repeating without result. However, if Brown plans a run in the November 2016 election, political winds may blow the sails of this one. And for that reason, combined with the lack of any other transparency gains this session, this one was our legislative win for 2015.

Norman Turrill, president of the League of Women Voters in Oregon, rightly points out that the audit may finally provoke order in Oregon’s transparency laws, if it succeeds in putting all of the exemptions to public disclosure laws in one place, a long-time goal in the pro-transparency set.

“There are exemptions scattered all the way through the ORS, and it really needs to be gathered in one place and systematized in such a way that can be made sense of it and brought into a modern age,” said Turrill, noting many exemptions were conceived before computers.

He has hopes the audit can go even further in beating back the more than 475 exemptions to Oregon Public Records Law: “There’s always somebody that wants to have their little interest protected from public disclosure. And whatever you think of those particular bills, it’s sort of creeping protectionism. Hopefully the audit will sort out some of these things.”

Stay tuned for more on the audit and a related Attorney General task force to assess state transparency.

Meanwhile, House Bill 2470 also fell to the win column when it died in committee. Introduced by former governor John Kitzhaber, the intent of the bill was to cut off public access to ongoing investigations by the Department of Consumer and Business Services by making all investigative materials exempt under Oregon Public Records Law.

According to testimony from the Oregon Trial Lawyers Feb. 3, the law not only would have withheld documents from public disclosure, but would have made it impossible for anyone pursuing a civil claim to access those materials, even with a subpoena, effectively cutting victims off from critical evidence in civil suits with banks and builders, insurance companies and the like. Barring amendments to fix that problem, I’m hailing the death of this bill as good news.

Losers

A few transparency failures did pass, however, ensuring a not-so-fine-but-undeniable tradition is still intact in Oregon:

House Bill 2571 exempted footage from the body cameras worn by police from disclosure, unless the public interest warrants it, and the law requires that what footage is released in the public interest must be edited.

This new legislation doesn’t require police body cameras to be worn — there is no such law in Oregon yet — but it does require those agencies with body cameras, like the Portland Police Bureau, to retain the footage for 180 days. Much of the new law lays the ground rules for the use of body cameras, and the availability of footage to criminal defendants. But the footage can only be disclosed to the public in cases where the public interest warrants it — in other words, when it serves the interest of police departments to release it, or when the public or press have won access to the footage through an appeal to a district attorney, attorney general or in court.

In those cases, when footage is released, the law requires it be edited “in a manner as to render the faces of all persons within the recording unidentifiable.” Apparently the TV show COPS has now has better access to footage of Portland police activity than the public will through the use of public cameras.

House Bill 3505 was withdrawn from the House Committee on Rules after its first public hearing, a fashion show of sorts in that the turnout was mostly suits. The bill aimed to reform Oregon Public Records Law altogether, setting timelines for response to requests for records, the release of materials, fee standards for copies, and removing an exemption for the Oregon Legislature to respond to public records requests during session. It was highlighted in a previous column.

The public hearing on House Bill 3505 was a rehash of the arguments that have continued to block public records reform for years: small cities can’t comply with firm timelines on records delivery, and fee schedules eliminate the hammer many civil servants need to keep over-broad records requests from running off the rails. The voices of a few citizens and members of the press, including yours truly, drowned in this crowd of mostly lobbyists. During a good deal of the supporting testimony, several legislators chatted amongst themselves and with staff, illustrating just how seriously they take the need for records reform.

Senate Bill 386 repealed the sunset provision on public records exemptions for the names and addresses of people “engaged in, or providing goods and services for, medical research using animals other than rodents at OHSU.” People can now experiment on primates at OHSU without worry that those who object to it might take up their cause on their front lawns, or worse. Phil Donovan and Rebecca Ball, in testimony submitted on behalf of OHSU, said that researchers’ personal information had been used by animal rights advocates in Oregon “to fuel support for intimidating and violent acts against individuals and their families” prior to the law’s first passage in 2003.

But the law goes further than just protecting individuals. It also prohibits the disclosure of the name and address of companies that provide supports services to primate research, like feeding primates. Legislative staff raised discussion issues in opposition, including the need for scrutiny and transparency of tax-funded research, oversight of that research, and media access to information about it. No objectors turned out to a public hearing in March, however. The bill was signed by the governor and made law March 18.

My pick for the biggest loser is House Bill 3037, a particularly overreaching bill that exempted disclosure of personal information about public employees and public volunteers from public records law. This sounds immensely sensible at first, withholding the residential addresses, phone and cell phone numbers, drivers license information, emergency contacts, and ID cards for public employees, offers some individual protections to folks that work in government. But House Bill 3037 also exempted personal email addresses from disclosure, something I see as a big problem.

Exempting personal email addresses from disclosure makes it so any civil servant who wants to take public business onto a private email, following in the footsteps of our former governor, or Clackamas County Commission Chairman John Ludlow, can do it. And without any disclosure to the public about what alternate email addresses civil servants might be using, it will be especially tough for a citizen or media representative to request those emails be brought into public view. I find the approval of this bill a particularly obtuse move for legislators during a session characterized with buzzwords like “reform” and “transparency.” It’s also a disappointing move from the usually pro-transparency, if somewhat tepid on reforms, Gov. Brown, who signed the bill April 9.

In conclusion, our legislative session promised us a method to study our problems some more, but made it somewhat harder for the press and public to find them in the meantime. We’ll be looking to keep our Redacted app up to date with the latest legislation, adding these newer exemptions to the list of 476 we have already compiled.

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