May 26, 2016

The transparency trifecta: part two

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Before I get on to part two of the transparency trifecta, just a brief reminder that the Public Records Law Reform Task Force, convened by Attorney General Ellen Rosenblum, will hear testimony tonight at the White Stag Building in Portland from 5 p.m. to 6:30 p.m.

Last column I highlighted the task force’s efforts as part of a three-pronged strategy to reform Oregon Public Records Law since the sunset of the Kitzhaber days. The other two prongs are these: Governor Kate Brown’s efforts to revamp state agencies’ records policies, and to create a new advocacy office intended to safeguard public access. What follows is an update on both of these…

Readers will recall that Brown called for a Secretary of State’s Office audit of state-level records retention and disclosure practices back in February 2015, through Senate Bill 9. When she received it in November, she promised, in testimony to the Joint Committee on Legislative Audits, to issue an executive order before session’s end “clarifying expectations regarding state agency records policies, response time and cost” — all issues flagged by the audit.

Brown’s efforts in the executive branch even got this skeptic jazzed. Unlike previous reform proposals, this one relies on the politically possible  — the governor cleaning her own house. And it’s clever, too, because it avoids a lot of the legislative bottleneck that has confounded reform in the past. So I was psyched for her January announcement. When it came, however, it announced a bit more waiting. Painful but hopefully for good results. Brown’s executive order directed the Department of Administrative Services (DAS) to craft new model public records policies by June 30. State agencies have until 90 days after that to either adopt the model policy or modify it to meet agency-specific needs. Per the order, agencies are also on the hook to streamline processes in response to public records requests, develop a standard protocol for tracking them, and come up with statewide guidelines on records retention and management and fees for releasing them.

That last bit may sound a little familiar. And it is. So try not to get confused… Essentially what we have here is an effort within the executive branch that overlaps, at least in part, with the attorney general’s task force effort to legally standardize fees and timelines for public records requests. While it may sound like a bit of government redundancy — and it is — I’m opting to think of it like synchronized swimming. Absent momentum on public records reforms for the last several years, it may be that a bit of redundancy is exactly what this state needs.

The executive branch effort is led by a steering committee helmed by Barry Pack, a former deputy under Brown in the Secretary of State’s Office who is notably sharp on public records, and now boss of the administrative bosses at DAS. His co-chair on the reforms is Gina Zejdlik, the governor’s policy lead on transparency, whose knowledge and diligence get high marks from those who work with her on the attorney general’s task force. Both Pack and Zejdlik are either on hiatus or headed for one, however. So their replacements are DAS communications strategist Matt Shelby and the governor’s attorney, Benjamin Souede, a Portland criminal defense lawyer and former adviser to Hillary Clinton. When the game of musical chairs ends, it will leave Souede and Michael Kron, the attorney general’s lead on public records reform, firmly holding the continuity rudder as the participants in both efforts.

For now, Shelby describes the committee’s work as well under way. “The first real deliverable is to make sure that all state agencies have a policy on file and approved by the state archivist regarding management of public records,” he told Redacted. That’s already in statute, he added. But only about 10 in about 170 state agencies actually have the box checked, though some may have internal policies.

The steering committee will also set targets for reasonable response times and fees. Its membership includes on-the-ground staff from a variety of state agencies to reflect a range of transparency and need — everything from administrative agencies like DAS and those with dedicated public relations staff like ODOT, all the way down to much smaller offices such as the Board of Nursing, where the person responding to a request might be the executive director.

The aim is to get to some kind of continuity. And not just to respond to the governor’s audit, Shelby said, but also to rectify another problem: “I think there is a realization that people don’t care what agency in state government maintains what records. They just see Oregon state government and there is an expectation that there is some commonality in that process,” he said.

Such common ground may come in the form of an electronic package. Next steps also include a look at software management of records. Right now the Secretary of State’s Office uses a proprietary software to catalog its records, a tool available by subscription that Brown has advocated for use by other Oregon government agencies. Such software could become the means of organizing and cataloging electronic records that prove particularly devilish to search later. The Secretary of State’s audit found more complex requests for records, requests that often include email, are most frequently confounding prompt release. The steering committee’s work involves a digital assessment and collaboration with the state’s archivist, Mary Beth Herkert, the state’s unsung hero of document retention. Herkert is a whiz at the Secretary of State’s electronic storage system, which may now come into play.

Deploying it, or another system with the same tricks, shows promise in its potential to contain the email problem. It’s a key reason why DAS, while often not a particularly nimble organization (for years political insiders refer to it, tongue-in-cheek, as the Department of Bureaucracy)[1] might prove a solid venue for solving some of the state’s most intractable records problems. DAS handles much of what email flows through state departments. And a software fix at DAS, plus a staffing commitment to the IT department that’s already been made, might cure a lot of problems.

Anybody interested in following this effort can watch the management page for the project online, where some updates may land.

Meanwhile the governor’s office is probing the possibility of establishing an office of the public records advocate. Ideas for structure are being shopped with the Public Records Law Reform Task Force, including ideas like Indiana’s public access counselor, who operates outside the executive branch but is appointed by the governor, and the nine-member Freedom of Information Commission in Connecticut, with appointees by both the governor and legislature. This doesn’t mean the proposal is back on the plate of the attorney general’s task force, I’m told. Just that they get to weigh in.

“For the policy wonks and the geeks out there, it’s really kind of an interesting process because when you’re talking about public records requests and public records response, you’re touching three different elected officials,” said Shelby, including the governor, who oversees state agencies; the Secretary of State, who manages retention schedules and how and what state agencies keep; and the attorney general, who has legal oversight.

Consider this your cheat sheet. And don’t forget to submit your testimony.

[1] I can’t argue with this characterization. Pack’s official job title, for example, is Chief Administrative Officer in the Office of the Chief Operating Officer at the Department of Administrative Services… I rest my case.

 

 

2 thoughts on “The transparency trifecta: part two

  1. Today, politically speaking, transparency becomes as black as night, black painted windows are still window panes, just redacted!

    Salem will never come clean, and she really isn’t much of a campaigner is she?

  2. I found this article after attending the meeting tonight. Thank you for following the Public Records Law Reform Task Force and creating Oregon’s Public Records Exemption App (Redacted). Looking forward to reading part III of your series.