It doesn't feel like much of a stretch to say that the next few months will be a critical time for Oregonians who want to ensure that state and local governments are as open and transparent as possible.
In fact, what happens next could help determine whether the Legislature's action in 2017 to move forward on public records represented the start of a sea change toward more openness — or whether the state will resume the slow but deliberate backsliding that's marked the last half-century since 1973, when Oregon passed what was at the time considered a landmark public records law, a model of government transparency.
That was then. Since then, every time the Legislature has met, it has approved exceptions to the law, each one removing another set of records from public scrutiny. The best estimate now is that 650 or so of these exceptions have burrowed their way into state law, but nobody knows for sure.
The legislative session in 2017 was the first one in years to make progress on the issue of open records. Among the measures approved that year was one pushed by Gov. Kate Brown calling for the creation of a public records advocate, a new position in state government that would be charged with providing education and training on public records and to serve as a mediator in resolving disputes between people requesting records and public entities. (At the time the Legislature was considering the bill, there was a brief dust-up around the issue of where the office would be located: Would it be part of the governor's office or would it be housed with the secretary of state? Eventually, the office was placed within the archives division of the secretary of state's office, but this issue turns out to be critical.)
Ginger McCall, an attorney with experience both representing public entities and requesting records from government agencies, was hired for the job, and seemed to be an excellent fit.
That was, until Monday, when she announced her resignation, citing what she called undue pressure from the governor's office to be a team player. In particular, McCall said, the governor's general counsel, Misha Isaak, tried to influence her work — and Isaak also wanted her to keep that a secret from the public and the Public Records Advisory Council, which McCall chairs.
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At first, the governor's office denied McCall's charges, but then walked that back after McCall released records detailing her interactions. Brown later released a statement saying that "It appears this is a situation where staff were conflicted between the goals of serving the governor and promoting the cause of transparency. Let me be clear, there should be no conflict."
Brown also said she welcomed proposals to make the office of the public records advocate truly independent, but has yet to offer suggestions.
It all made for perhaps a livelier-than-usual meeting on Friday of the Public Records Advisory Council, which works with the advocate to propose policies for improving access to public records. The top issue at the meeting was finding ways to shore up the independence of the advocate's office.
One obvious way to do that would be to make the council itself responsible for hiring the advocate; as the law now stands, the council submits three names to the governor, who selects one nominee and passes that name to the state Senate for confirmation. The council should be able to submit its selection directly to the Senate. In addition, it's worth looking at reducing the number of nominations the governor can make to the council; as matters now stand, eight of the council's 13 positions are appointed by the governor.
Legislators during their 2019 session need to revisit the question of where to place the office; as the events of the past week have shown, it needs more insulation from efforts by any branch of state government to unduly influence its work. To that end, another idea that surfaced during Friday's meeting could be useful: finding an independent source of funding for the office.
Whatever ideas emerge, Brown herself now needs to be a vigorous advocate for making the office independent. When she came to office after the resignation of John Kitzhaber, she said transparency would be a hallmark of her administration. But her record since then has been, to put it charitably, mixed, and the events of the last week have left that promise in tatters. Still, she has an opportunity here: If she pushes for proposals that help ensure a truly independent public records advocate, that could become one of her signature accomplishments. (mm)