Tag Archives: Public Records

HB 2353 has now passed the Oregon House and Senate unanimously, and Governor Brown is expected to sign it soon:

I like how the fine goes to the requester of the records. This emergency legislation is indeed necessary for the sake of the public peace. In the past year the Lane County District Attorney has had to order Kevin Reed’s office twice to comply with Oregon law, and provide records that UO was trying to hide from the public:

And, in November 2018:

Brad Schmidt has petitioned the District Attorney to review a denial of a public records request made to the University of Oregon (University).

Mr. Schmidt asks that the University be ordered to disclose,

All Nike Elite allotment orders, including product descriptions, sizes, costs and delivery/shipping information, from the 2017-18 allotment made by the following individuals: Mike Mennenga, Josh Jamieson, Kevin McKenna, Tony Stubblefield.

In a letter explaining it’s opposition to the petition, the University characterizes the issue as follows.  The University has contracted with Nike, which requires, among other things, that Nike provide product to the University in a certain dollar amount.  In return, the University agrees that certain University personnel, and athletes, wear Nike apparel at what is described in the contract as “program activities.”  The University asserts that the contract requires it to provide Nike products to the affected employees and athletes to wear at such “program activities,” and that it does so through products provided to the University, and passed on to employees.  The University has also chosen to take a certain amount of the allotted Nike product amount, and dedicate it to a system referred as the “Nike Elite” website.  Currently this amount is set at $185,000.

The selected employee is given an allowance in a determined amount.   The University then notifies Nike of the employee who is authorized to receive product from the University’s allotment, and the amount of the employee’s allowance.  The employee then receives access to the Nike Elite website, where the employee can order Nike product.  The University places no restrictions on what is purchased, or for whom.[1]

The District Attorney’s review of the petition must be conducted under the umbrella of ORS 192.314(1), that,

Every person has a right to inspect any public record of a public body in this state, except as otherwise expressly provided…

That statute, and the exemptions thereto, reflect a broad public policy that disclosure of public records is the rule, and that any exemptions must be explicitly stated by statute and not simply implied therefrom.  Guard Publishing Co. v. Lane County School District, 310 OR 32(1990).

The University has proffered 3 reasons why the petition should be denied.

First, the University argues that the requested documents are not “public records,” as defined in ORS 192.311(5)(a).  The University asserts that the records are private records of the expenditure of compensation by an employee, and that the University does not possess the records, rather the involved employees possess the records.

The possession of the records is irrelevant. It is instructive to note that ORS 192.311(5)(b) provides that records of the public’s business are considered “public records,” even though they may be located on a personal computer.  Therefore, the threshold question is do the records “contain(s) information relating to the conduct of the public’s business.”  ORS 192.311(5)(a).  Further, the University refers to the conduct as “purchases” and “spending” or “expenditure” of compensation.  However, no money changes hands.  Simply put, the University grants the employee access to an account to obtain Nike product, that otherwise belongs to the University.  Although the University does not control the website, the University controls whether the employee is authorized to use the website to obtains portions of Nike product allocated to the University.  This is not private conduct, it is public business.

The University claims a number of “exemptions” protecting the records from disclosure.

First, the University asserts, pursuant to ORS 352.22(12), the records are “personnel records,” and are exempt from disclosure.  ORS 352.226(13) sets forth the definition of “personnel records.” The University does not specifically assert that the individuals named in the original public records request are “academic staff member(s).”  However, even if one or more of these individuals are covered by the statute, the records requested to not meet the definition of “personal records” as defined in the Faculty Records Policy.

Second, the University asserts that the petition should be denied pursuant to ORS 192.355(2)(a).  That section exempts from disclosure,

…information of a personal nature…if public disclosure would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in the particular instance.  The party seeking disclosure ears the burden of showing that the public disclosure would not constitute an unreasonable invasion of privacy.

The District Attorney, in general, agrees with the assertion of the University that how a public employee spends their compensation, is a matter of personal privacy.  For instance, once an employee’s monthly pay is deposited in his/her bank account, it is not “public business” how that employee spend the money. However, as stated above, in this instance, the public employee is using a system to which they only have access by virtue of their public employment.  If that system is used to conduct public business, as opposed to private business, such use no longer qualifies as “information of a personal nature.”

In the blanket denial of the request, the University has failed to meet the burden of setting forth an individualized showing that specific instances of disclosure would be an unreasonable invasion of privacy.  (See Mail Tribune Inc. v. Michael S. Winter, 236 Or App 91 (2010), requiring a sheriff to make an individualized showing that disclosure of a particular concealed weapons permit would be an unreasonable invasion of privacy).

At this point in time, the District Attorney has not asked the University for the records described in the petition, so that they may be reviewed to make the determination described above.  In fact, the University asserts they do not possess or control the records. ORS 192.411(1) provides the District Attorney with authority to  take one of three actions with regard to a petition, (1) grant the petition;(2)deny the petition; or (3) grant the petition in part and deny the petition in part.  The District Attorney has no other authority to order the public body to take any action, other than the disclosure of the records.

Given the amount of money involved, it can be assumed the records would be voluminous.  Further, simply reviewing the records themselves would not answer the question whether they are exempt from disclosure.  Rather, persons familiar with the records would be the ones to assert that particular records are exempt from disclosure and specific reasons why.

In Mail Tribune,   the court was faced with a similar circumstance.  Rather than try to parse out what hypothetical circumstances might render a record exempt from disclosure, the court instead noted that the burden of proof is on the public body, in a specific instance, to show that disclosure would be an unreasonable invasion of privacy.  The court went on to hold that the sheriff had not made a showing in any specific instance, and therefore ordered the disclosure of the entire request.  Further, since no showing had been made by the sheriff, the burden of proof did not shift to the party seeking disclosure to show that the public interest nevertheless demands disclosure.

Therefore, it is the order of the District Attorney that the petition is granted.  The University is ordered to disclose the records. The University has seven days to comply with this order, unless it issues a notice of declaratory or injunctive relief.

[1] The University advises that the employee can also use their allowance at the “Nike Store.”  These records are not part of the original public records request.

5/17/2019 update:

The Oregonian’s Rob Davis reveals still more of the documents UO tried to hide from the public, including more new information about the redactions by Kevin Reed’s Public Record Office.

If I understand the story right, Reed’s office let the lobbying group decide what UO should redact from UO’s public records. They made some interesting choices. Weird. Full story here with links to all the records:

What UO didn’t want the public to know about industry group’s climate bill opposition

… The newly released documents documents include the alliance’s legislative updates, lobbyist reports and memorandums to members. The university originally contended portions of the documents were protected by the attorney-client privilege and by an exemption allowing material submitted confidentially to be withheld in very narrow circumstances.

Ed Finklea, the alliance’s natural gas director, told The Oregonian/OregonLive it was the energy alliance’s attorney who made the redactions when the university released the records. Molly Blancett, a school spokeswoman, said the university “always solicits the input of third parties when it comes to their records that have made their way to the university’s possession.”

The clean documents show a consistent theme in what was initially redacted: References to potential benefits of Brown’s proposed climate change bill. …

5/14/2019 update:

I have it from a generally reliable source that, as of yesterday, UO has withdrawn its membership in AWEC, the industry group that is lobbying against Governor Brown’s Cap and Trade legislation.

5/12/2019: It backfired. Rob Davis has the story in the Oregonian, here. A few snippets:

Continue reading →

That would be the University of Maryland. The WaPo:

A federal grand jury in New York investigating corruption in college basketball has requested records from Maryland regarding one unnamed former player, assistant coach Orlando “Bino” Ranson, and Silvio De Sousa, a recruit who ultimately attended Kansas.

Maryland released copies of the subpoenas Friday, along with a statement asserting the university had already sent back all relevant records, and had found no evidence of any violations of NCAA rules or federal laws by any Maryland coaches, employees or players….

Presumably, the feds were investigating Bino and Silvio on charges that they failed to compensate their players for their work hours, i.e. wage theft. While there are employers stealing from employee checks, it is good to hear that UMD has provided the grand jury with evidence that their “student-athletes” were in fact, paid.

I wonder when UO will release its subpoena? UO GC Kevin Reed’s public records office charged Daily Emerald reporter Michael Tobin $113.64 for copies of any federal subpoenas UO had received (there’s presumably one for the IAAF 2021 Championship bid docs too) and then refused to hand them over, and then refused to give him a refund. Max Thornberry had the story in the EW:

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.”

More here.

I don’t know what UMD charged for releasing these public records, but here’s their subpoena:

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.]