Public records rule change slipping 'through the cracks'
SALEM — A legislative proposal to enforce Oregon's public records law passed unanimously in the House in late April. But this month, the bill's sponsor and supporters had to scramble to keep it alive before the Senate takes it up.
House Bill 2353 would give district attorneys the power to order public entities to pay a $200 fine or waive fees for public records if they are found to be in violation of Oregon's records law. The bill is sponsored by state Rep. Karin Power, D-Milwaukie, and it's being pushed by the Society of Professional Journalists.
So how does a bill that passed the House 56-0 end up in danger of not even getting a hearing in the Senate? It's the sponsor's fault, Power admitted.
"We're at the point of session that if you're not watching your stuff and making sure it's going through, it can fall through the cracks," Power said.
Power, who has been busy co-chairing a committee crafting an enormous bill to reduce greenhouse gas emissions, said she didn't have time to meet with state Sen. Chuck Riley, D-Hillsboro, who has concerns about HB 2353, until last week. Riley chairs the Senate Business and General Government Committee, to which Power's measure has been assigned.
"When we send bills over from the House to the Senate, because we send so many all at once, it's really good if we give them a heads-up about what it's about," Power said.
At the same time, the League of Oregon Cities — which opposes the bill — was lobbying Riley and other senators and asking its members to make their opposition known as well.
"I would describe our opposition to the bill as 'textbook,'" Scott Winkels, League of Oregon Cities lobbyist, said of the group's efforts. "Standard operating procedure."
HB 2353 was originally scheduled for consideration in Riley's committee last Tuesday, May 7, but it was pulled from the agenda. Riley acknowledged hearing from opponents of the bill, including the League, after it passed the House and was assigned to his Senate committee. "What happens a lot is in the first chamber, people are not tuned in yet," Riley said. "The opponents are not tuned in, and so they suddenly say, 'Oh, that passed. We better do something.'"
As it's written, the public records law requires all but the smallest and most overstressed cities, counties, districts and agencies to address a records request within 15 days — even if only to notify the requestor that it's going to take more time.
If HB 2353 becomes law, district attorneys could decide public entities that don't respond to requests have broken the law and penalize them accordingly.
Winkels said the League has several objections to HB 2353. Among them, the group doesn't like the idea of its members being fined according to "a subjective standard," it would prefer a hearings body and not the district attorney be responsible for determining whether a public entity violated the law, and it doesn't see any safeguards to prevent what he called "problematic requestors" from filing frivolous and unreasonable requests in hopes of milking a city for cash awards. "I think you have to put in some safeguard language in terms of 'is it flagrant, is it egregious behavior,'" Winkels said.
Power has maintained that her goal is simply to ensure that public entities comply with the existing law. She understands the League's opposition, she said, although she disagrees with its arguments.
"My guess is that for your smaller cities, they probably don't have great records retention processes, and so it's just harder for them to comply overall," Power said. "And I think as a matter of principle, anything that's going to ding them further, they'd be opposed to."
After meeting with Power and SPJ representatives, Riley rescheduled the bill for committee action Tuesday, May 14, with a day to spare before a key legislative deadline. It passed unanimously and now heads to the full Senate for consideration.
Riley voted to endorse HB 2353, but he said he thinks it is "a bad idea for the state to be levying fines against local government." District attorneys are state officials, even though they are elected countywide. "It's not the best way to do it, maybe — but we do need to hold people to the law," Riley said. "There were no consequences in the past. So, (it's) something."
HB 2353 isn't the only public records bill moving forward this year. Power was among the sponsors of House Bill 2430, which makes the Public Records Advisory Council permanent. PRAC, as it's often called, was first created on a temporary basis in 2017 to advise the Legislature on how to improve Oregon's public records law. It is set to dissolve at the end of the year.
After passing the House on a 59-1 vote, HB 2430 was approved unanimously by the Senate. Gov. Kate Brown signed it into law Monday, May 13.
House Bill 2431, which requires state agencies to annually disclose how many records requests they have received and how many were not fulfilled within 60 days, passed out of its original committee in late March. Because that bill would require at least one state agency to hire someone to draft its report, it will need to be approved by legislative budget-writers before it gets a vote in either the House or the Senate.