Oregon governor

A Closer Look at Oregon's Public Records Law

Gov. Kate Brown is seizing on an opportunity to explore public records law improvements. 

Gov. Kate Brown is seizing on an opportunity to explore public records law improvements. 

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.  

The Approachable, Pragmatic Governor Brown

Governor Kate Brown is a self-described people person and a stark contrast to her predecessor, John Kitzhaber.

Governor Kate Brown is a self-described people person and a stark contrast to her predecessor, John Kitzhaber.

In a New York Times feature story published earlier this month, Governor Kate Brown comes across as the life of the party, in stark contrast to the reclusive reputation of her predecessor, John Kitzhaber.

Brown says of herself, "I'm a people person." Kitzhaber, a former emergency room doctor, was often characterized by friends and foes alike as someone happy to sew up a patient without having to strike up a conversation.

Brown's ascension as Oregon's governor when Kitzhaber resigned amid a building ethics scandal was serendipitous because of the marked difference in their personalities. She bounds down Capitol hallways where Kitzhaber was rarely spotted. She banters with lobbyists, whereas Kitzhaber tried to avoid them. She chose to live in Mahonia Hall, the governor's official residence, which Kitzhaber treated more like a Salem bed and breakfast.

By all accounts, Brown's more outgoing, approachable style has been viewed as a welcome respite from Kitzhaber, who one lobbyist called a political ghost. She is seen as politically popular, which doesn't hurt as she faces an election in 2016 to fill the remaining two years of what was Kitzhaber's unprecedented fourth term.

The Times cites a poll taken in May showing Brown has earned a 55 percent job approval rating. She gets good marks in the poll from 40 percent of people who identify themselves as Republicans. Numbers like that tend to scare off would-be challengers, even those who whisper that Brown is a liberal Portland Democrat. That's not always a good thing for voters living outside Portland, even just outside Portland.

While Brown's voting record supports the label of "liberal," her political style is more inclusive. As Senate majority leader, Brown listened to almost anyone willing to schedule an appointment, without turning a conversation into a polemic. The term "pragmatic" would have been fairly applied to her as she understood her role was to find common ground, not stake out high-minded positions.

Brown has stepped into the higher pay-grade as governor with political grace. She encircled herself with new staff, but retained the policy staff left behind by Kitzhaber, which provided a smooth transition working with a legislature already underway.

Brown generally supported the main thrust of Kitzhaber's agenda and didn't try to imprint them with her own stamp to gain glory. Instead, she focused on ethics legislation, much of which she had introduced in her role as secretary of state.

Late in the 2015 session, Brown attempted to engineer a compromise to pass a transportation funding bill that business and labor groups had pushed. The compromise required backing off somewhat or entirely from a clean fuels carbon reduction measure passed earlier in the session, despite strong Republican protests, in part because the bill had been tainted in their minds by its association with Cylvia Hayes, the first lady under the Kitzhaber administration.

Some in the environmental community were upset at Brown's willingness to roll back the clean fuels measure, but others took it as a positive sign that she wasn't a captive to our ideology.

Kitzhaber was renowned for his ability to get people with disparate interests in a room and pound out a path to progress that often avoided politically divisive ballot measures. That is role Brown has yet to fill, but may have a chance as the November 2016 general election ballot could be loaded with initiatives from a variety of political directions.

For now, the Times noted, Brown is demonstrating she isn't anything like Kitzhaber. When a group of Chinese tourists wandered into the Governor's office, Brown came over to talk, encouraged them to take the formal tour and posed for a picture. There aren't many pictures of Kitzhaber doing that.

Brown Signals Her Course of Action

Kate Brown held her first press conference today as Oregon's governor and sent clear signals about her legislative priorities, views on key issues and plan to move into Mahonia Hall.

Kate Brown held her first press conference today as Oregon's governor and sent clear signals about her legislative priorities, views on key issues and plan to move into Mahonia Hall.

Governor Kate Brown gave the first indications of her immediate priorities at a press conference today. She called dealing with stalled negotiations that have caused shipping delays at West Coast ports, including Portland, a top priority.

Just two days after replacing John Kitzhaber, who resigned amid an influence-peddling scandal, Brown said her predecessor didn't ask for a pardon and it would be too soon and too speculative for her to comment on whether she would consider granting one. The new governor indicated  she would work to release public records related to Kitzhaber and Cylvia Hayes as soon as possible.

Brown said she will maintain Kitzhaber's focus on early childhood learning, as well push for reductions in K-12 classroom size and closing the achievement gap in public schools. She said she supported requiring vaccinations for all children attending public schools, with exemptions only for medical reasons.

Following up on her own agenda as secretary of state, Brown said she will urge the legislature to approve her voter registration bill that would sign up anyone automatically if they have a driver's license. House Bill 2177 passed out of the Oregon House shortly after Brown press conference.

On other important issues, Brown said:

  • She supports increasing Oregon's minimum wage;
  • She expressed support for lower carbon fuel standards;
  • She will keep in the place the moratorium on state executions and agrees with Kitzhaber on the need for a broader conversation over the death penalty;
  •  She will work with legislative leaders on a possible transportation funding package;
  • She will engage legislators in negotiations over the 2015-2017 budget; and
  • She has dedicated a staff member to deal with ethics and public records reform issues.

On more personal issues, Brown said she plans to move into Mahonia Hall and decided to keep several senior staff members who worked for Kitzhaber to maintain policy continuity. She has named her own staff director, legal counsel and communications chief.

Not Just Another Day at the Capitol

Kate Brown assumed the governorship in Oregon, but her swearing in was hardly more than a coffee break in a legislative session off to a very fast start.

Kate Brown assumed the governorship in Oregon, but her swearing in was hardly more than a coffee break in a legislative session off to a very fast start.

The Oregon legislature took time out Wednesday morning to witness the swearing in of new Governor Kate Brown before returning to its fast-paced start that has startled many observers and caused lobbyists and staffers to hustle like they do at the end of sessions.

In a brief six-minute speech, Brown paid respect to the contributions made by former Governor John Kitzhaber, who resigned amid an influence-peddling scandal, then made clear she wouldn't allow any family members close to state policymaking or payrolls.

While no one downplayed the significance of Brown's ascension to the governorship (she is the 38th governor, but only the second female governor in the state's history), neither she nor legislative leaders made a big deal of the transition. Legislative work continued as if nothing really big had happened. That may be because Brown is no stranger to the building or the process. She is a known quantity in Salem.

On her first day in office, Brown joined the governors of California and Washington in calling for an end to a labor dispute that has crippled West Coast ports and stranded cargos, including perishable farm products from rural parts of Oregon. Trouble on the docks was doubly on Brown's first-day agenda after Hanjin announced last week it was abandoning use of Terminal 6 at the Port of Portland because of what it called low productivity.

Day two of the Brown tenure was greeted by the release of the latest quarterly economic forecast, which predicted the state's quirky personal income tax kicker would be triggered. The good news is that the state's economy is performing better than projected. The bad news is that state tax revenue will exceed the 2 percent threshold that triggers the kicker and rebates to taxpayers.

The projected kicker rebate, which would take the form of credits on 2015 tax year returns, is $349 million. For legislators — and the governor — that represents a sizable hole in the state budget.

State economists took the occasion to remind Oregonians we have one of the most volatile tax systems because of a heavy reliance on personal and corporate income taxes, which ebb and flow along with economic downturns and upturns. The economists also noted that states such as Washington that rely heavily on sales taxes face the challenge of an eroding tax base as populations age and they buy fewer big-ticket items.

These are just a few of the challenges raining down on Brown. She also must try to satisfy demands for more K-12 public education spending, continue health care transformation efforts that include an extension of a hospital provider tax and address a push from higher education for more financial support.

When Brown served in the legislature, including as Senate majority leader, she focused much of her personal energy on civil rights, mental health and juvenile justice issues. As secretary of state, Brown pushed for Oregon's initiative and referendum system reforms, performance audits and more accessible voter registration.

Because Brown has been thrown into an already boiling pot, she is unlikely to recommend a hugely different menu of priorities than her predecessor. What will be most noticeable is a difference in style. As majority leader, Brown was available to meet and listen to advocates. She looked for compromise. She dispensed realistic political advice. That's unlikely to change, even though she has changed offices.