AG Ellen Rosenblum’s DOJ reverses Hardy Myers on public record fees

But just a little. The Bend Bulletin has the story here:

The Oregon Department of Justice on Monday lifted an order requiring some state agencies to charge the public for government records, overturning its own 14-year-old advice.

Deputy Attorney General Frederick Boss ruled that the Public Employees Retirement System declined to reduce or waive a fee it charged a journalist seeking records based on a 2002 DOJ order the agency no longer believes is valid.

Boss said in his opinion that PERS may be “legally required” to waive or reduce fees for public records, a reversal of the agency’s 2002 order, issued under former Attorney General Hardy Myers, that said it was required to charge full price for records requests.

“Although a public body enjoys discretion with respect to whether to grant or deny fee waivers and reductions, that discretion is not unlimited,” Boss wrote. “In some circumstances, waiver or reduction can be legally required.

There are many ways that that Rosenblum’s office can increase state transparency using opinions like this – if she really wants to. The DOJ order from last year requiring the OPBE to waive a $2.50 fee they tried to impose is here. As you can see it was very narrowly written, to avoid creating a precedent in favor of public access,  and apparently it is still the only opinion her DOJ has ever written *requiring* a fee waiver.

Screen Shot 2015-12-18 at 5.02.05 PM

Screen Shot 2015-12-18 at 5.02.40 PM


Lane County wants $23K for a simple list of employee salaries

The Op-Ed protesting this is in the RG here, and the requesters have petitioned Oregon AG Ellen Rosenblum:

… So we are filing a request for review with the Oregon attorney general. Why? Because 39 local units of Oregon government want to charge us more than $40,100 in special fees just to produce simple records of public employee salaries.

If these units succeed in imposing what is essentially a transparency tax, our organization could face future fees up to $4 million across 1,509 units of government to simply compile a complete record of all government expenditures: salaries, pensions and vendor transactions. Levying extreme fees — a tactic used to keep government spending hidden — is a violation of Oregon’s open records law.

What on earth could Lane County, which wants to charge us $23,000 in fees, be hiding? …

To my knowledge Ellen Rosenblum’s office has only made one order requiring an agency to waive fees for a public records request since she took over from John Kroger in 2012. It was for $2.75, and it was very carefully worded to avoid creating a useful precedent for those trying to get records from the state.

In fact one interpretation of her office’s order is that agencies should *increase* their fees, since the DOJ has ruled that the burden on the agency of waiving small fees is trivial. So it’s good to hear that her office will have another chance to show that they are serious about public records reform.

The DOJ’s full $2.75 Public Records Order is here:

Screen Shot 2015-12-18 at 5.02.05 PM

Screen Shot 2015-12-18 at 5.02.40 PM

Multnomah County DA must pay $16K for hiding public records

The Oregonian has the story here:

A judge has ordered the Multnomah County district attorney’s office to pay nearly $16,000 to cover legal fees stemming from a public records dispute last year.

Attorney Scott Upham sought records related to the district attorney’s investigation into charges of sexual assault against Portland tech entrepreneur Scott Kveton. Upham, a former Washington County district attorney, is now a pugnacious civil lawyer who has aggressively sought public records for documents related to his cases – sometimes raising the ire of prosecutors and other other government attorneys.

A Multnomah County grand jury declined in 2014 to indict Kveton, but Upham – acting on behalf of the woman who brought the accusations – sought the records as she pursued a civil case against Kveton. (The woman and Kveton ultimately resolved the case with an out-of-court agreement. The Oregonian/OregonLive is not naming the woman because she claims to be a victim of sexual assault.)

… Under a “catalyst theory” of the law, Upham said, the court concluded his client is entitled to attorney fees because of the role her lawsuit played in prompting the records’ release. He said that could prompt government offices to be more open initially in responding to public records requests, because they could be stuck with a legal bill – even if they voluntarily release the documents later.

“Hopefully this will persuade more agencies to not play these games anymore,” Upham said.

Deputy district attorney Jeff Howes said his office will not appeal the order but declined further comment.

UO Public Records Office needs help complying with state & fed law

You don’t think? The job ad is here:

  • Ensures compliance with state & fed law in regards to existing policies
  • Coordinate and consult with University offices, departments, units and programs regarding their records management compliance issues (litigation, public records requests, audits, records retention scheduling, essential records scheduling and similar services);
  • Candidates should exhibit a strong user focus and public service orientation, excellent analytical, interpersonal skills, and an ability to embrace and spearhead change

The webpage of UO’s broken PRO is here.

Systematic statewide abuse of Oregon public records laws thwarts the people’s right to know

That’s the headline from the excellent, long report by Alex Cippolle in the Eugene Weekly here. The synopsis?

This story begins with a simple request for information. Before long, it veers into murky waters about freedom of information and the public trust, and potential violations of both in Eugene and statewide.

The story ends in a snarl of unfortunate answers with, perhaps, a shard of hope.

Little did we know that one narrow request would end with a tumble down the rabbit hole into the absurd world of public records law in Oregon, leaving us with the question: Do you, as a citizen in a democracy, have the right to know?

One snippet:

“It’s getting worse all the time,” [UO Journalism professor Brent Walth] says. “I’ve yet to see an Attorney General since [Dave] Frohnmayer who was serious about enforcing the spirit of the public records law. That sends a loud message across all state and local government that if you want to hide something, you can do it.”

Bill Harbaugh — University of Oregon economics professor, author of UO watchdog blog UO Matters and public records advocate — recalls Frohnmayer’s tenure as AG fondly as well.

“He was very enthusiastic about enforcing the law,” Harbaugh says. “He would tell state agencies, ‘Jump to it.’”

Of course his attitude changed when people were asking for his records! Another:

[Public Records attorney Dave Bahr] and Walth say that Oregon public officials systematically shut down fee waiver requests as a way to prevent potentially embarrassing or unscrupulous information from getting out.

In the spirit of OPRA, however, it is the recommended practice to waive fees if the request is deemed in the public interest. And, Bahr adds, the law as it was intended favors giving access to the media and research groups, as they help communities disseminate information.

Kron of the attorney general’s office says that, in most cases, public records requests submitted by the media are considered in the public interest.

“I think most people would agree that if a reporter is making a request for records related to a story that they’re working on to publish in the paper,” he tells EW, “that that would certainly meet the public interest.”

UO Public Records Office doesn’t think the public has an interest in Bias Response docs?

The Foundation for Individual Rights in Education has the story here:

University of Oregon on ‘Bias Response Team’: Nothing to See Here

By May 27, 2016

This month, a number of commentators have criticized the University of Oregon’s (UO’s) bias incident reporting system—an online tool to report perceived incidents of “bias” to campus administrators—and some of the university’s “Bias Response Team’s” (BRT’s) responses to those reports. In March, FIRE filed a public records request with UO, seeking documents about students’ complaints and whether the BRT’s handling of those complaints has the potential to chill or infringe on First Amendment rights.

UO, however, is resisting public scrutiny.

In its response on April 1, 2016, the university told FIRE that it would not benefit the public to produce records relating to how they respond to what students perceive to be offensive speech. FIRE has asked UO to reverse its position and produce the records in a letter sent to the university this week. …

In a nutshell, while the UO administration is happy spending our student’s tuition money on the administrators who run the Bias Response Team, they want to charge FIRE $1,483.30 for documents that might help the public learn what it is those administrators are doing.

Under Oregon’s public records law UO must justify its decision to refuse FIRE’s request for a public interest fee-waver. UO General Counsel Kevin Reed thinks this boiler-plate satisfies the law:

You requested a waiver based on an assertion that release of these documents is in the public interest. The office has performed the three­ part analysis of your request, has determined that your request does not meet the public interest test, and has exercised its discretion to deny your request for a fee waiver.

FIRE disagrees. So do I. Here’s hoping FIRE takes it to court and the judge disagrees too.

Federal Court rules students should get fee-waivers for public records

UO’s public records office routinely uses fees and delays to frustrate the intent of Oregon’s public records law, aided by the desultory enforcement efforts of the local DA and the Oregon DOJ. UO even charges its own student journalists fees, and refuses to let them use ASUO i-fee money to pay those fees.

The federal government is much more reasonable about fees – I get anautomatic waiver up to $250, as a blogger, and so do student reporters. And now the D.C. Circuit courts has significantly expanded fee-waiver for students.  Frank Lo Monte has the news here:

… When a requester asks a federal agency to produce documents, the government normally is allowed to charge hourly fees for the time spent finding and reviewing the documents. But the federal FOIA statute limits what agencies can charge “educational institutions” to just the actual cost of making copies.

University of Virginia graduate student Kathryn Sack, aggrieved by a $900 bill from the Pentagon to locate records needed for her doctoral research, insisted that the “educational institution” discount should apply to her. A U.S. district judge disagreed, but on Friday, a three-judge panel of the D.C. Circuit ruled in Sack’s favor.

“If teachers can qualify for reduced fees, so can students,” Judge Brett M. Kavanaugh wrote in the court’s 3-0 opinion. “ Students who make FOIA requests to further their coursework or other school-sponsored activities are eligible for reduced fees under FOIA because students, like teachers, are part of an educational institution.”

Students affiliated with journalistic publications were already eligible for the fee reduction, which extends to “a representative of the news media.” But a student doing a research paper for a journalism course unaffiliated with a recognized media outlet – or perhaps with nothing more than the aspiration of selling the work as a freelancer – fell into a zone of uncertainty that the appeals court has now helpfully clarified. …

Live-Blog: AG Ellen Rosenblum and Transparency Czar Michael Kron bring Public Records Law Reform Task Force to UO

Monday May 9th, 4:30-6:00PM, Room 141 in the UO Journalism School.

Live-blog: Usual disclaimer – my opinion of the gist of what people said. Nothing is quote unless in quotes.

David Force – newspaperman back in 1973 when this law was passed. The Oregon DOJ was once the ally of transparency. Now the DOJ is on the side of state agencies trying to hide records. It would be more accurate to call this the “Oregon Public Official Secrets Act”. Calls for an independent advocate outside the DOJ, and taking control away from the DOJ and the County DAs. Gives the RG’s long fight to get the Seneca contract from EWEB as an example. It’s not just the exemptions, it’s the conflict of interest between the DOJ and the agencies trying to hide records.

Dave Bahr – local attorney working for clients trying to get records from Feds and various state records. On National Archives transparency committee.

Many people nationally are advocating for eliminating all fees. These are effectively used to block the public’s right of access, but are a trivial part of the budgets of the agencies. The DOJ makes it too easy for state agencies to do this.

Similarly with delays. Washington state allows 5 days – and fines if agencies don’t respond.

Also brings up the point that, under Oregon law, requestors who get the AG or the DA to issue a PR Order can then be sued by the agency. No other state allows this.

Bill Harbaugh – Argues that AG Ellen Rosenblum can and should use the DOJ’s Public Records Orders process to promote transparency, by putting agencies on notice that the AG will not tolerate use of fees and delays. Asks why she is not doing this.

Here are a few resources:

Oregon DOJ:

The Oregon DOJ’s Public Records and Meetings law website.

You can get all the AG’s PR Orders (updated quarterly) from the Oregon Law Library, by following this link: It’s a pretty clunky interface, and it’s not indexed by google, or even linked to from the DOJ website, but you can search by full text, etc. (Petitions to require local agencies to comply with the law go to the county DAs. Multnomah county has posted all their DA’s PR Orders online. I don’t think any other counties do.)

2008 AG’s Public Records and Meeting Manual. Former AG John Kroger didn’t want it on the web. I posted it illegally in 2009, to much amusement, and Kroger then backed down.

2011 AG’s Public Records and Meetings Manual. (AG Kroger, January 2011)

2014 AG’s Public Records and Meetings Manual (AG Rosenblum, November 2014)

Some UO links: 

The buck gets passed to Lisa Thornton:

Task Force in Eugene, hearing announcement:

Continue reading

EWEB loses public records case, must pay RG lawyer Jack Orchard $70K

Christian Wihtol has the long story in the RG here. EWEB’s current management and board didn’t have much choice about fighting the RG lawsuit, given the double-secret contract their predecessors had signed with Seneca. EWEB paid their own lawyers $100k for losing this case, and is still paying millions more to Seneca and other failed green energy projects, as Wihtol documents. What fun, spending other people’s money.

If only EWEB’s lawyers had accidentally emailed the RG the unredacted contracts, as some anonymous HLGR employee did during the RG’s public records lawsuit against Eugene’s 4-J School District, this case would have ended sooner and our utility bills would be a bit lower.

RG attorney Jack Orchard is from Portland’s Ball Janik law firm. I’ve always liked a winner:

Screen Shot 2016-05-04 at 11.07.27 PM

Will AG Rosenblum’s Public Records Reform Task Force help or hurt?

12/16/2015: While Governor Kate Brown has proposed significant reforms to the law for the upcoming 2016 legislative session, such as a public advocate (see below), AG Ellen Rosenblum’s task force is planning a revision of the public records law for the 2017 session. The link to the task force is here.

I’ve been sitting through their 3rd meeting for 2 hours now, and I’d say the jury is still out as to whether the AG’s rewrite of the law will improve Oregon public records transparency, or make it worse.

The editorial pages of Oregon’s newspapers, having been burned by a similar effort from John Kroger, are very skeptical.

Screen Shot 2015-12-16 at 2.46.40 PM


Governor Kate Brown wants an Oregon public records advocate:

I nominate Steve Duin for the job. The full text of her speech to the Oregon Leadership Summit, in the Oregonian here:

Continue reading

Public Records Office will slash costs of transparency using Cognos

Great news from “Around the O”!

Screen Shot 2015-12-09 at 12.54.30 AM

This promises a drastic improvement in public records response time, and big reductions in the delays and fees the university uses to discourage the public from getting information. While Public Records Director Lisa Thornton can be extremely efficient when it’s helpful to Johnson Hall, e.g. taking only hours to produce the documents on Provost Jim Bean’s sabbatical plans, which killed his chances of becoming interim UO president, at other times her office has trouble with the simplest tasks, generally when the requests involve information UO wants to hide.

For example, on Nov 12 I made a request to Director Thornton for “BANNER statements showing payments from the following ACCT codes from 1/1/2013 to the present: 24502, 24504, 24507, 24520, 24545, 24599, 24612, 24998.”

These are simple reports which any office manager or accounting person can whip out in about 5 minutes, total. Here’s one of them: 

Screen Shot 2015-12-09 at 1.27.44 AM

If you don’t believe me, go ask your office manager how long it would take them.

But Ms Thorton’s office was buffaloed by this simple process. It was a full three weeks before I got the records. So it’s good to hear that UO’s new technology will allow her office to fill public records requests in minutes, not weeks. You can check it out here.

Kevin Reed’s office wants USA Today to pay for coaches’ NCAA reports

6/24/2019: At least they’ve stoped claiming they are faculty:

Berkowitz, Steve
USA Today
Initial Request Date:
Awaiting Payment from Requester
Request Completion Date:
Pursuant to the applicable open-records law(s), I am requesting copies of the following:

The current contract for head football coach, including all amendments.
2. The most recent athletically related outside-income reports for the head football coach, the 10 assistant football coaches and the football team’s head strength/conditioning coach. This is a document that, pursuant to an NCAA rules change in August 2018, athletic personnel must file annually to report income of more than $600 from sources other than the university. If the university has not yet resumed collecting these documents, please state that in the response to this request. 3. An itemized list of incentive bonus amounts actually paid to the current head football coach from May 15, 2018 through May 14, 2019. The goal of this request is to obtain data about bonus payments made for sport-related goals achieved during the 2018-19 football season and/or for academic or other achievements during a full, 12-month period, even though that period may not conform with the school’s fiscal year or academic year or with the coach’s contract year. 4. The university’s contracts for non-conference football games scheduled to be played during the 2019 regular season, including any amendments.

Request ID:
Status Date:

12/8/2015: UO claims Vin Lananna is faculty, won’t release NCAA income report

When I asked the UCLA Public Records office for the NCAA required “Outside Income Report” for their Athletic Director and Track Coach, they sent the documents less than 24 hours later, at no charge. No redactions except the phone number. Full pdf here:

Screen Shot 2015-12-08 at 10.26.21 AM

When you make a similar request to the University of Oregon Public Records Office, you will likely have to wait months (more than 3 months for the original request, my mirror took less) and then you will get a letter saying that they will not release these NCAA reports because they are “faculty records”, and therefore fall under an exemption meant to protect academic freedom.

That’s right, UO thinks its coaches and athletic directors are faculty:

Screen Shot 2015-12-08 at 10.37.28 AM

I wonder what they are hiding this time.

Sec of State releases public records audit: Agencies should delete more records

Update: Gordon Friedman reports in the SJ that Gov. Kate Brown will talk about the audit and her plans for transparency at 1:30 tomorrow in HR 3:

Meanwhile Michael Kron’s DOJ public records task force is meeting from 1-3 in the Governor’s Conference Room:

And Nick Budnick reports in the Oregonian that Oracle is suing Gov. Brown for withholding Kitzhaber’s emails.

And UO’s Public Record’s Office has announced that it is now going to charge people who request public records not just for the staff time of the offices who find the records (e.g. extracting billing records from UO’s accounting system or email) but also for the time of the PR Office staff who do the multi-colored redactions. The public now pays for UO to redact its own press releases? This is a big step backwards for UO transparency.

Update: More from Denis Theriault in the Oregonian, here:

SALEM — An audit on public records, ordered in the wake of Gov. John Kitzhaber’s resignation, finds Oregon agencies largely fail to track requests and “struggle to respond” when requests are complex — fostering “suspicion and distrust” that could threaten “the credibility and transparency” of state government. …

What “credibility and transparency” is left to threaten?

11/17/2015: They think the problem is that requestors *believe* agencies deliberately discourage, delay, or block the release of public information. Obviously UO was not one of the agencies audited, because here at UO the problem is that UO’s Public Records Office *does* deliberately discourage, delay, and block the release of public information. Case in point – UO’s PRO redacts UO’s own press releases:

I really wish I could say that UO’s compliance with Oregon’s public records law has improved since Schill took over.

Full report from the SOS here:

Screen Shot 2015-11-17 at 1.25.07 PM

Screen Shot 2015-11-17 at 1.25.28 PM

Email is an emerging technology?

Meanwhile Michael Kron’s DOJ task force has its second meeting tomorrow. So far the state’s newspaper editorial boards are not impressed. Should be an interesting meeting.

Can Brown, Rosenblum, and Kron reform Oregon Public Records law?


This morning I drove up to Salem for the first meeting of this task force. I’m still a little bitter that Michael Kron didn’t add a slot for “Obsessed public records blogger” and appoint me, but with Les Zaitz and Jeb Bladine, and what seems to be a lot of support from AG Ellen Rosenblum and Governor Kate Brown, it seems pretty clear that this group will come up with a substantial bit of legislation for fixing some of the weaknesses in Oregon’s Public Records Law.

I did hear a few of the usual complaints from some members of the task force and the audience about the “burden of public records compliance”. It’s funny how agencies that spend far more on PR flacks tasked with making the boss look good than they do on real transparency can say that with a straight face.

There’s still plenty of risk that the lobbyists and legislators will figure out how to use this as an opportunity to weaken our already weak law, and I still think the first thing to do would be for the AG to write some hard-hitting PR opinions, and set a good example for the county DAs. But this is obviously a good faith effort to get it right, with lots of political support.

Speaking of District Attorneys, one simple interim step would be for the DOJ to start collecting and posting the DA’s decisions on public records petitions. From what I’ve seen, DA compliance with the PR law is spotty.

10/21/2015: AG to try again on public records reform – or more stalling?

Continue reading