Media

During my legal career, I have had the misfortunate of submitting a public records request in every one of Oregon’s 36 counties, as well as dozens other state and local government entities. I have also advised dozens of Oregon charter schools, which are public entities subject to Oregon’s public records and meetings laws, when these schools have received public records requests and on how to properly conduct public meetings so as to ensure compliance with not only the letter of the law, but also the spirit of the law. My partners Kelly Clark and Kristian Roggendorf, have litigated abuses of the public records and meetings laws by governmental entities.

It is with this considerable expertise and background on all sides of the public records and meetings law that I was encouraged to learn of Attorney General John Kroger’s “Government Transparency Report” issued on October 7, 2010. I wholeheartedly agree with the Attorney General the Oregon’s public records and meetings law needs a lot of work. While the Attorney General’s Government Transparency Report is rather limited in terms of suggested revisions and commentary, it is a good first step in the months leading up to the 2011 legislative session.

For my part, the following are just a few of what I perceive to be areas both the public records law and the public meetings law that must be addressed:

Uniformity:
Nearly every governmental agency or entity, large or small, responds to public records requests differently in terms of the form of the request, the time for response, and the fees charged. While I recognize that public records requests vary widely based on the type and the volume of documents requested, standardizing the process will add greater accountability and will facilitate the resolution of disputes between government agencies and persons making public records requests. It will also ease the burden on government employees who can be more easily trained in the process and will minimize subjectivity in favor of objectivity.

The Exemptions: I agree with the Attorney General that the number of exemptions makes the process more confusion and, ultimately, makes governments less transparent. While most of the exemptions are likely to be retained in one form or another, maintaining a comprehensive listing of the exemptions in ORS Ch. 192, rather than scattered throughout the Oregon Revised Statutes, will also help the public in determining and understanding which exemptions may or may not apply to a given request.

Executive Session:
There is an inherent conflict between the public meetings law which allows media to attend an executive session where legal counsel is called upon to provide legal advice to members of a public governing body, and the preservation of the attorney-client privilege. Therefore, I recommend that all media be excluded from executive sessions involving discussions between the governing body and legal counsel pertaining to attorney-client privileged information. Abuses of executive sessions in which media has been excluded would not only result in a violation of the public meetings law, but can, and should, result in ethical violations and sanctions for legal counsel of public entities who misuse or abuse the this “attorney-client privilege” exclusion of media in the public meetings law.

Time for Response:
Establishing strict time limits to apply to nearly every request under the public records law is a must. I look forward to the Attorney General’s leadership on this issue in the 2011 legislative session.

I am also committed to taking an active role on this issue in the legislature.