It's strange to imagine anyone feeling a sense of gratitude in pondering John Kitzhaber's tarnished legacy.
But somewhere down the line – after many years of healing and fading memories – Oregonians may actually thank the former governor for making one particular lasting difference for the better. At least that's the hope after Gov. Kate Brown recently commissioned a task force of lawmakers, lobbyists and an accomplished investigative reporter from The Oregonian to take a closer look at Oregon's public records law.
It was, after all, Kitzhaber's questionable dealings with his ever-puzzling fiancée Cylvia Hayes that served as the impetus for revisiting the law. Without the famous scandal that ultimately pushed him out of office amid a criminal investigation – and Kitzhaber’s attempts to block and delay the release of many telling emails – we honestly wouldn’t be at this point.
The crux of the issue is the question of where the balance lies between the public’s right to know what’s going on inside the government and our elected officials’ right to privacy.
Of course, the whole situation is actually driven by the media. If Willamette Week reporter Nigel Jaquiss hadn’t dug into what was going on behind the scenes, the Kitzhaber stories may have never seen the light of day.
The task force is also getting started in a critical era for the media. As news organizations continue to struggle with dwindling staffs and shrinking ad revenue, the future of watchdog journalism looks less and less certain. With an ailing press, the propensity for undetected government corruption only grows, leaving the public out of touch with what their elected officials are doing.
Kitzhaber’s story aside, maybe it was just time to take another look at the rules anyway. The Oregon Association of Broadcasters and the Oregon Newspaper Publishers Association argue we need to bring order to all of Oregon’s public and private record statutes.
A report released this week from the Center for Public Integrity ranks the quality of Oregon’s ethics and public records laws 44th in the nation. Overall, that report handed Oregon an “F” in government accountability, directly referencing the Oregon Government Ethics Commission’s slow response to the Kitzhaber scandal.
It sounds bad, but the picture actually isn’t that simple.
Oregon has a basic public records law with an assumption that everything is public. In the strongest possible terms, all attorneys general in recent memory have advised state officials that they should assume all records are public and that they can be protected only if they qualify under one of the exemptions.
The law was created in 1973, and today it has more than a few dozen exemptions. Many of those are justified, of course, so don’t expect all of them to be stricken from the books. Trade secrets, records pertaining to pending litigation, evidence compiled in an open criminal investigation. All of that is exempt from disclosure under the law, and for good reason.
But then one also has to wonder whether the law as it stands is to blame for why Kitzhaber and Hayes were able to keep their scandal under the radar so long.
If government officials want to keep records private, even in contravention of Oregon law, they can do so in a couple ways. They can stall on making records available, contending that it’s too time consuming to produce them. Or, they can charge too much for the task of retrieving the documents.
Charging a minor fee is legal under the law, but the size of the fee can become an obstacle. Metro, for instance, demanded KOIN pay about $17,000 for records in an investigation of the Oregon Zoo’s elephant facility. In some newsrooms, such a cost can be a deterrent to pursuing a story.
The increased use of email systems in recent years has made public records issues far more complex since the law’s genesis 42 years ago. In fact, that hits at the central question of the investigation into Kitzhaber and Hayes: Did they use private email systems to conduct public business and then shield the emails from public scrutiny?
As it turns out, news organizations have also played a role in complicating the public records issue. Occasionally, reporters make blanket requests for access to email records over a long period of time, which only adds to the government’s difficulty in complying.
Those are some of the biggest questions the task force will have to tackle in the coming year.
But of course, no matter where you stand on the question of the effectiveness of the law, there’s no denying that without a solid system of public access to government records, democracy suffers.
CFM Partner Emeritus Dave Fiskum contributed to this post.