DAs sometimes make 'in the public interest' expensive
When a group of journalism students requested public records from each of Oregon's 36 district attorneys earlier this year, many local county prosecutors pushed back with a curious argument: Releasing the documents didn't meet the test of being in the "public interest."
As it turns out, the records the students wanted to see were the DAs own orders, telling other government offices how to follow the Oregon public records law.
How could releasing these documents not be in the public interest? The students soon found out why — and learned a tough lesson about problems with transparency in Oregon government.
The students were carrying out an assignment in their investigative reporting class at the University of Oregon. The state's DAs, who are elected by their county's voters, have the power to order local government agencies to release public records.
The students asked the DAs to release the last five years' worth of appeals (called petitions) filed by citizens who have been denied public records. The students also asked to see any orders the DAs issued upholding the denials or telling the government agencies to release the documents.
The students then asked for a waiver of the fees government agencies are able to charge for producing records. The law allows a waiver if the person seeking the records can show it's in the public interest for the documents to be released.
"The records we seek," the students' requests read in part, "will help inform the public as to how the office of District Attorney is carrying out its duties under the Oregon public records law." The students also said their results wouldn't just go into a class project — it was intended for publication by a news outlet in Oregon, so everyone could see what they found.
That would appear to meet the public-interest test. One DA, John Hummel of Deschutes County, agreed.
"Of course what we do on public records is in the public interest," Hummel told me when I asked him about his decision. "I mean, if an agency won't give out records, it's in the public interest to find out why. My order as to whether they should release the records, that's in the public interest. It's got layers and layers of public interest."
But Hummel was the exception. The students discovered a stunning contradiction in Oregon law: the government officials holding the documents — the very people who may not want the records released — get to decide what's in the "public interest."
PAYING FOR RECORDS:Support for the reporting of this project, including the gathering of public records, came from a grant from the University if Oregon School of Journalism and Communication.
Time after time, DAs rejected the claim that releasing their public-records orders met the public-interest test. The law doesn't require them to explain their reasoning—and they didn't. Many sent identically worded denials that cited only worry about costs to their budgets. "I am unwilling," one such response went, "to have my local taxpayers pay the bill related to your project's request."
"I'm guessing a lot of DAs are worried about the costs they have to absorb when someone asks for records," says Matt Shirtcliff, the DA in Baker County and president of the Oregon District Attorneys Association. Shirtcliff was among the DAs who promptly complied with the students' public records request.
The estimates for fees the DAs sent to the students exceeded $1,000 — all that for documents that, arguably, already belong to the public and should be available for inspection. In the end, many DA lowered their fees or waived them altogether when it was clear there weren't that many pages of documents involved.
Others held firm. Patty Perlow of Lane County said her office's $160 fee would not cover the actual costs in producing the records. When it did turn over the documents, Perlow's office failed to include at least nine of her office's orders, and we had to go back again and ask for those records to be released.
Perlow says the size of the request made it difficult to fulfill, as did the way in which her office stored some of the records. She said the oversight was caused by a scanning error, which she said was "nothing nefarious. Humans and machines make mistakes."
Solutions are available
According to a recent report by Oregon's new public records advocate, the new deadlines in its public-records law need teeth. Agencies face few consequences if they don't respond in a timely way.
Lawmakers convening in January could do so with one easy fix: If government officials can't meet the new deadlines, then the cost of those fulfilling the requests should fall back on the agency. That's what the federal Freedom of Information Act requires. (Agencies seek approval for an exemption if the request is overly broad and impossible to fulfill on a deadline.)
But that still would leave the troubling conflict of interest the law creates by letting the bureaucrats decide what it's really in the public interest (while often protecting their own interests).
One possible solution for lawmakers is to turn the burden around and make government prove why the public wouldn't be served by releasing public records. Having to justify why they're charging fees for records that can benefit the public interest — when those records already belong to the public — might give government officials pause.
Meanwhile, the DAs could get up to speed on the law, and they could join others with authority —Gov. Kate Brown and Attorney General Ellen Rosenblum — who have made clear to government agencies that the Oregon public records law is not a nuisance but instead a duty to fulfill.
In the future, it might be easier to keep an eye on the public-records orders issued by district attorneys: State law now requires DAs to send copies of all their orders going forward to the Oregon Department of Justice.
That still doesn't make them visible to the public, as these young journalists sought to do. But there's a solution for that, too: Multnomah County has for years put its orders on its website.
"The public needs to see how we're thinking about these issues and why we decide to order records be released or not," Adam Gibbs, Multnomah County senior district attorney who handles the decisions, told me. "One of the major issues is that none of the DAs across the state know how the others are handling the same issues."
Multnomah County is no longer alone in this full disclosure. Deschutes County recently followed suit after the DA, John Hummel, says he was inspired by the UO journalism students' request to increase his office's transparency.
"It made sense," he told me later. "I figured, why shouldn't these be made easier for everyone to see?"
Read Part 1:DAs often stumble on records rule delays
DO APPEALS WORK?
Early in 2018, a group of journalism students at the University of Oregon set out to learn how often district attorneys either overrule or uphold efforts by local government agencies to deny public records requests. To do that, the students requested all public records appeals filed with Oregon's 36 district attorneys.
The students didn't get enough documents from small and medium-sized counties to make any general statements about how the DAs are enforcing the public records law statewide.
But they did get some telling results from larger counties.
Multnomah County issued about 130 public records orders from 2013 through 2017, according to the data collected by students — likely more than all other counties combined. In that period, Clackamas and Washington counties saw far fewer cases. Based on the records, the Clackamas County DA issued orders for partial or full release of public records about 40 percent of the time. In Washington County, it was around 60 percent.
An outlier is Lane County, which has ordered local agencies (including the University of Oregon, where I work) to release all or part of withheld documents only 25 percent of the time, according to the records.
Patty Perlow, Lane County's DA, says her office's review of records cases got more complicated when it started reviewing records requests denied by the UO. (The Oregon Department of Justice used to review cases involving UO until 2014, when the university gained independent status.) But she says her office's rate doesn't reflect the many cases in which her office works to release records without issuing an order — something other DAs note as well.
"Sometimes a phone call will solve things," Perlow said, "if we're dealing with a situation where the issue is clear or someone is concerned about a delay. That's a pretty easy answer and doesn't require a formal order."
Perlow also echoes concerns of many DAs, who don't think they should be in the business of reviewing public-records appeals at all. Decades ago, lawmakers gave DAs the role so they could bring a local perspective to enforcing the law, a quality some DAs think the state should keep in place.
"What's in the public interest for release in Malheur County is going to be very different than here, for example," said Adam Gibbs, a senior deputy district attorney in Multnomah County who handles public-records cases. "That's a perspective a local elected official can bring that we might lose of someone else was making the call."
Max Egener, a graduate student at the University of Oregon School of Journalism and Communication, contributed to this reporting.