Eugene Weekly reports on GC Kevin Reed’s refusal to refund student $114 for Fed subpoena PRO wouldn’t provide, & Reed’s refusal to participate in Transparency Committee or send his assistant Bryan Dearinger

Max Thornberry has the story here:

Transparency Committee Takes on UO Records Policy
Student reporter denied paid-for public records

A student reporter at the University of Oregon was charged more than $100 to obtain UO public records before being told the university would not release them to him.

The reporter didn’t get a refund, and now the university’s Senate Transparency Committee (STC) is asking whether the UO is violating its own policy and abusing public records fees in order to discourage the public and news media from trying to shine light on the university’s operation.

Michael Tobin, a senior news reporter for the Daily Emerald, paid the UO Office of Public Records $113.64 for records before he was told they were exempt from release. He has not received a refund. Tobin submitted a complaint to the STC to find out why he can’t get his money back.

“I’m concerned about a fee for records I was not given,” Tobin told the STC during a Thursday, April 5, meeting. “And if they claim to know Oregon public records law, they should know that if there’s a pending federal investigation that this record would be exempt from disclosure from the start. So I don’t know why they would take my money and then go through the process of pulling the document, attempting to redact it and then say, ‘We can’t give this to you because we talked to the [Department of Justice] about it.’”

… Tobin filed his records request on Feb. 1 for any “federal subpoenas the University of Oregon has received over the past year.” Tobin told the committee he was requesting records he thought might be connected to the 2021 IAAF Track and Field World Championships; IAAF’s selection of Eugene to hold the event has spurred criminal investigations in the US and in Europe into possible corruption around the decision.

… Government agencies are allowed by state law to charge for records. According to the Attorney General’s Public Records and Meetings Manual, fees can still be assessed if no responsive records are found or “even if the records located are subsequently determined to be exempt for disclosure.”

UO’s policy, though, says nothing about exempt records and fees, only that “The Office of Public Records charges for the actual cost of making available public records.”

“They have to follow their policies. They have to follow both Oregon law and their policies,” Chris Sinclair, chair of the STC, says. “So if their policies are more restrictive than Oregon law then their policy is the one they have to follow. That’s my understanding.”

General counsel for the university Kevin Reed, a member of the transparency committee, refused to attend Thursday’s meeting and resigned from the committee before the meeting, telling Harbaugh that his office’s participation in the committee would “present a conflict of interest.”

[In an obvious self-contradiction, Reed then appointed Bryan Derringer, an AGC from Reed’s office as his designee.]

… In addition to stepping down from the committee, Reed expressed concern that Harbaugh’s participation presented a conflict of interest as well. Transcripts of emails between Reed and Harbaugh were posted to the University Senate blog.

“You have been assessed over $45,000 in fees on your public records requests over the course of the last five or so years,” Reed wrote to Harbaugh in an email. “You have paid a few hundred dollars for documents, but mostly you have protested the fees and argued for a change in fee policy that would reduce or eliminate fees. A private citizen is, of course, free to engage in such advocacy, but when a public official does so in his official capacity, he does so at his own risk. I have told you this before, and you have ignored my advice thus far. And, as I said the risk is on you, not the university, so I can’t tell you what to do.”

Following Reed’s prompting to consult with the Oregon Government Ethics Commission, Harbaugh says, an investigator from OGEC — via a phone conversation — determined Harbaugh’s interest in public records makes him part of a class or group of people with shared interests, saying, “Your participation would not even be a potential conflict of interest.”

[UOM: ORS 244.020(1), (13) actually says:

(13)“Potential conflict of interest” means any action or any decision or recommendation by a person acting in a capacity as a public official, the effect of which could be to the private pecuniary benefit or detriment of the person or the person’s relative, or a business with which the person or the person’s relative is associated, unless the pecuniary benefit or detriment arises out of the following:

(a)An interest or membership in a particular business, industry, occupation or other class required by law as a prerequisite to the holding by the person of the office or position.

(b)Any action in the person’s official capacity which would affect to the same degree a class consisting of all inhabitants of the state, or a smaller class consisting of an industry, occupation or other group including one of which or in which the person, or the person’s relative or business with which the person or the person’s relative is associated, is a member or is engaged.

(c)Membership in or membership on the board of directors of a nonprofit corporation that is tax-exempt under section 501(c) of the Internal Revenue Code.

Why did the General Counsel’s office omit this important qualification?]

… “This is symptomatic of the university’s contempt for public records law and the principle that people should have access to the records of their government,” Harbaugh says. “This seems to me a case where the university is using its powers under that law not to promote transparency but to try to hide things.”

[And it will certainly have that effect. UO’s high fees and general refusal to waive them for reporters already discourage access to UO public records. The possibility that you will pay the fees and then get nothing increases the expected cost significantly.]