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: http://cdm17027.contentdm.oclc.org/cdm/landingpage/collection/p17027coll2. 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:

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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:

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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.

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12/14/2015:

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:

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Public Records Office will slash costs of transparency using Cognos

Great news from “Around the O”!

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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: 

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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.

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:

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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:

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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: https://olis.leg.state.or.us/liz/2015I1/Committees/JLAUD/2015-11-18-13-30/Agenda

Meanwhile Michael Kron’s DOJ public records task force is meeting from 1-3 in the Governor’s Conference Room: http://www.doj.state.or.us/public_records/Pages/task_force.aspx

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:

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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?

10/29/2015: 

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?

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Will UO charge student journalist for HLGR’s Bowl of Dicks docs?

Under Dave Hubin UO’s Public Records Office refused to give fee waivers to journalists – even UO student journalists. Oregon public records law requires an explanation for fee waiver denials. Hubin and PR Officer Lisa Thornton ignored that law.

Now Daily Emerald reporter Noah McGraw has written a very good report on the Bowl of Dicks case, here:

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McGraw is requesting public records showing how much UO paid its defense attorneys, and for what, presumably for a follow-up story.

President Schill has hired a new Vice President and General Counsel, and given him authority over the Public Records Office. What will VPGC Kevin Reed do?

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UO Public Records Office disaster grows a long tail

Taking out the mirror requests, it looks like a bit less than one PR request per day. Most are pretty simple requests for a contract or some such. The office has a $300K budget:

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How can they be this far behind? It’s almost as if they’re not really trying. Full log here:

Request Date Title Requester Status
10/12/2015 Office of the Registrar Kellermeyer, Nick Requesting/Reviewing Records
10/12/2015 Game Contract Harbaugh, Bill Requesting/Reviewing Records
10/08/2015 Directory Information International Student Achievement Pell, Michael Request Withdrawn
10/07/2015 Athletic contracts Dourning, Karen Awaiting Payment
10/06/2015 Sports medicine policy Gershberg, Max No Responsive Records
10/06/2015 UOPD case 15-1296 Jackson, Dustin Requesting/Reviewing Records
10/02/2015 UOPD record request Dale, Allison No Responsive Records
10/01/2015 Outstanding vendor checks Minotti, Anthony Requesting/Reviewing Records
10/01/2015 Directory information enrolled students Lee, Garret Requesting/Reviewing Records
10/01/2015 Outstanding vendor checks Kaye, Julia Requesting/Reviewing Records
09/30/2015 Athletic contracts Lefft, Evan Requesting/Reviewing Records
09/29/2015 Settlement Read, Richard Records Exempt From Disclosure
09/29/2015 Office of the Registrar Maurer, Julie Request Withdrawn
09/28/2015 Proposals Gauer, Jenn Requesting/Reviewing Records
09/23/2015 Contracts Greif, Andrew Records Provided
09/23/2015 RFP Responses – Mirror Rohlfing Strug, Susan Requesting/Reviewing Records
09/21/2015 Contracts, Grants and Agreements Suitts, Phillip Awaiting Payment
09/18/2015 Settlement Harbaugh, William Records Exempt From Disclosure
09/18/2015 Proposals Rossmiller, Sara Requesting/Reviewing Records
09/18/2015 Office of the Registrar Reed, Len Records Provided
09/17/2015 Proposals McBeth, Brian Requesting/Reviewing Records
09/17/2015 Proposals Winter, Landon Requesting/Reviewing Records
09/16/2015 NCAA Report Hobson, Will Requesting/Reviewing Records
09/13/2015 Football Expenses Caple, Christian Awaiting Payment
09/11/2015 Game Contracts Greif, Andrew Records Provided
09/04/2015 Gift Letters Harbaugh, William Requesting/Reviewing Records
09/02/2015 Correspondence Brettman, Allan Awaiting Payment
09/02/2015 Payroll Reports Bovero, Gregory Requesting/Reviewing Records
09/01/2015 Mirror Harbaugh Appleby, Keith Requesting/Reviewing Records
08/28/2015 Bids Pagador, Rhea Records Provided
08/28/2015 Correspondence Hoyer, Klifton Records Provided
08/26/2015 Proposals Koziol, Kelly Requesting/Reviewing Records
08/26/2015 Proposals Koziol, Kelly Requesting/Reviewing Records
08/25/2015 Office of the Registrar Alex No Responsive Records
08/24/2015 Investments Parker, Haley Records Provided
08/21/2015 Proposal Koziol, Kelly Records Provided
08/18/2015 Department Communications Alger, Michelle Awaiting Payment
08/18/2015 Senator Feingold Speech Adler, Jeremy Records Provided
08/16/2015 UOPD Sherman, Stephen Requesting/Reviewing Records
08/13/2015 Contracts Cohen, Kevin Requesting/Reviewing Records
08/12/2015 Communications Harbaugh, William Requesting/Reviewing Records
08/06/2015 Public Records Request Forgard, Ben Records Provided
08/05/2015 Football Contracts Smith, Steve Records Provided
08/04/2015 Settlement Friedman, Gordon No Responsive Records
08/04/2015 Settlement Friedman, Gordon Records Provided
08/04/2015 Settlement Friedman, Gordon Records Provided
08/04/2015 Settlement Friedman, Gordon Records Provided
08/04/2015 Settlement Friedman, Gordon Records Provided
08/04/2015 Settlement Friedman, Gordon Records Provided
08/04/2015 Settlement Friedman, Gordon Requesting/Reviewing Records
08/04/2015 Contract Quay, Grayson Records Provided
08/04/2015 Settlement Friedman, Gordon Records Provided
08/03/2015 Donations Harbaugh, Bill Requesting/Reviewing Records
08/03/2015 Solar Energy Projects Harbaugh, Bill Requesting/Reviewing Records
08/03/2015 Reviews Harbaugh, Bill Awaiting Payment
08/03/2015 Brand Contracts Harbaugh, Bill Records Provided
08/03/2015 University Expenditures Harbaugh, Bill Awaiting Payment
08/03/2015 NCAA Violations Harbaugh, Bill Requesting/Reviewing Records
08/03/2015 Sightlines Study Harbaugh, Bill Requesting/Reviewing Records
08/03/2015 2021 IAAF World Championship Harbaugh, Bill Requesting/Reviewing Records
08/03/2015 Global Scholars Hall Inspection Documents Harbaugh, Bill Requesting/Reviewing Records
08/03/2015 Global Scholars Hall Project Records Harbaugh, Bill Requesting/Reviewing Records
08/03/2015 Building Contracts Harbaugh, Bill Records Provided
08/03/2015 Ticket Software Contract Harbaugh, Bill Records Provided
08/03/2015 Bowl Expenses Harbaugh, Bill Records Provided
08/03/2015 Compliance Correspondence Harbaugh, Bill Awaiting Payment
08/02/2015 Directory Rasmusson, Nina No Responsive Records
07/28/2015 Transportation Agreement Pine, Levi Requesting/Reviewing Records
07/23/2015 Student Fees Kimbrell, Jacob Records Provided
07/22/2015 Contract Ahlen, John Records Provided
07/20/2015 Athletic Contracts Rhoden, Jaleesa Records Provided
07/16/2015 Software Anderson, Angelina Awaiting Payment
07/16/2015 UOPD Boone, Mario No Responsive Records
07/16/2015 Compliance Correspondence Mattioli, Kami Awaiting Payment
07/15/2015 Directory Howe, Kevin No Responsive Records
07/14/2015 Donations Jacoby, Kenny Records Provided
07/14/2015 Contract Harbaugh, William Records Provided
07/13/2015 Reviews Paulson, Lauren Awaiting Payment
07/13/2015 Solar Energy Projects Wilker, Steven Requesting/Reviewing Records
07/09/2015 Brand Contracts Axon, Rachel Records Provided

UO exempt from Governor Brown’s upcoming public records audits

Governor Kate Brown has just signed Senate Bill 9, calling for audits of state agency compliance with Oregon’s Public Records law. Good for her.

Except for a brief period under President Lariviere, UO’s public records office has been notorious for its use of fees, delays, and redactions to frustrate the intent of that law. An audit might turn up some interesting stuff, just as the Oregon DOJ’s 2010 investigation of the UO General Counsel’s office under Melinda Grier did about her and her assistant Doug Park’s delays in providing the Bellotti documents to reporters. (Lariviere fired Grier, and after a series of implausible events her assistant Doug Park, who’d handled the Bellotti requests, became UO’s Interim GC.):

But no. In some spectacularly bad news for trust and transparency at UO, UO’s public records office will be exempt from these audits. I’m no law professor, but here’s the story. The newly passed SB 9 reads:

Senate Bill 9 Sponsored by Senators COURTNEY, FERRIOLI, ROSENBAUM, Representatives KOTEK, HOYLE; Senators DEVLIN, JOHNSON, MONNES ANDERSON (at the request of Governor Kate Brown)

… Be It Enacted by the People of the State of Oregon: SECTION 1. (1) As used in this section: (a) “Performance audit” has the meaning given that term in ORS 297.070. (b) “State agency” has the meaning given that term in ORS 192.410. (2) The Secretary of State shall conduct a performance audit examining state agency retention and disclosure practices concerning public records and requests for public records. …

And while ORS 192.410 says

5) State agency means any state officer, department, board, commission or court created by the Constitution or statutes of this state but does not include the Legislative Assembly or its members, committees, officers or employees insofar as they are exempt under section 9, Article IV of the Oregon Constitution.

SB 270, which created the independent UO Board, makes it pretty clear that UO is no longer a state agency:

SECTION 2a. A university with a governing board is a governmental entity performing governmental functions and exercising governmental powers. A university with a governing board is not considered a unit of local or municipal government or a state agency, board, commission or institution for purposes of state statutes or constitutional provisions.

So what is UO and it’s new independent Board of Trustees?

(3) “Public body” includes every state officer, agency, department, division, bureau, board and commission; every county and city governing body, school district, special district, municipal corporation, and any board, department, commission, council, or agency thereof; and any other public agency of this state.

We’re now like a local school district, it seems. This is why public records petitions about UO’s delays, fees, and redactions no longer go to the Oregon DOJ – they go to the Lane County DA. And so no public records audit for UO. I can think of a few people in Johnson Hall who are going to be very happy with this.

RG Editors link Kitzhaber’s and UO’s public records failures

In their editorial on Governor Kate Brown’s inaugural address, here:

… Brown also promised to make Ore­gon’s public records more easily and quickly available to the news media and to the public. That’s an appropriate reaction to the Kitzhaber administration’s stonewalling on public records requests for documents pertaining to the governor’s influence-peddling scandal — stonewalling that ultimately served not to protect Kitzhaber, but to reinforce the impression he was concealing evidence of wrongdoing.

Brown provided no details on the changes she will seek to the state’s public records law, but they should be broad in scope. They should address not only Kitzhaber’s efforts to withhold public documents (in his final days in office he sought to destroy thousands of personal emails stored on state servers), but the ability of state and local governments throughout the state to withhold and delay information that the public has a right and need to know. A prime example is the University of Oregon, which increasingly in recent years has made the refusal of public records requests its default position in defiance of its status as a public university.

UO’s Presidential Advisor Dave Hubin has been in charge of UO’s Public Records office since 2011. He’s been a failure, and that failure has contributed to the sinking reputation of the UO administration, and UO.