It's another disappointment from a governor who pledged when she assumed office that transparency in state government would be a priority. Transparency was, Kate Brown said, an essential ingredient in her efforts to restore trust in state government.
Brown's record on transparency since then, however, has been spotty. Although it's true that she has been on the side of government openness from time to time, she has not been the unwavering advocate of transparency that she pledged to be when she took over the office of governor after John Kitzhaber's resignation.
So a new development regarding state government documents that used to be open to public inspection is disappointing, but not entirely surprising.
At issue are documents in which various state agencies propose legislative concepts to the governor. In these documents, the agencies identify the issues they want to resolve and suggest how the law can be changed to address the issues. The governor then decides which proposals move forward to the Office of Legislative Counsel, which drafts bills for legislative consideration.
Each year since 2010, these documents produced by state agencies have been open to the public — or, at least, have been released to a Portland attorney, Greg Chaimov, whose law firm has made a habit of asking for the documents under the Oregon Public Records Law. Chaimov has used the documents to inform his clients about pending proposals that might affect them.
This year, however, the state Department of Administrative Services refused Chaimov's request, arguing that the documents were protected by attorney-client privilege. Chaimov appealed the ruling, but it was upheld by Attorney General Ellen Rosenblum.
The forms will be released only after the Legislative Counsel, submits the written proposals to the governor's office for approval. That will be at the end of November, which, as astute readers may note, is after the election in which Brown faces a strong re-election challenge from Republican Knute Buehler. (Coincidentally, late November also is when Brown has said she will have specific proposals for how to trim the state budget, if major cuts are required; it will be a busy couple of weeks after the election for her.)
Chaimov and his firm, Davis Wright Tremaine, have filed a lawsuit contesting the refusal to release the documents and Rosenblum's ruling. (Chaimov, by the way, has deep experience with this issue that goes beyond just requesting these documents: From 1998 to 2004, he served as the legislative counsel.)
There is legal reason to challenge the assertion that the documents are protected by attorney-client privilege. In the lawsuit, John diLorenzo of Davis Wright Tremaine argues that bill-drafting services by the Office of Legislative Counsel aren't protected by attorney-client privilege. The lawsuit argues that the Legislative Counsel may only represent the Legislature; therefore, extending that attorney-client privilege to the agencies of the state's executive branch would violate the state constitution's separation of powers clause.
A spokeswoman for the state Department of Administrative Services said that this year's denial isn't a change in policy; rather, she said, state agencies wanted to bring their practices in line with the Legislature, which has the authority to exert privilege over its work with the Office of Legislative Counsel.
And maybe that's true. But, setting aside all the legal arguments for a moment, it's an explanation that ignores something essential about truly open government: The idea that the process of making new laws, as messy as it can be sometimes, should be done, to the fullest possible extent, in full view of the public. That's the primary reason why these documents need to be available to public view. If Gov. Brown believes that as well, it would be an easy matter for her to order the public release of the proposals. If she doesn't believe that, she should explain to Oregon's citizens why her administration chooses to carry on its business behind closed doors.