Legislators in 2017 took a principled stand on government transparency when they passed a bill imposing deadlines for public agencies to fulfill records requests.
Senate Bill 481 — introduced at the request of Oregon Attorney General Ellen Rosenblum, endorsed unanimously by legislators and signed by the governor — was a unified declaration from top elected officials that timeliness is a critical element of transparency. Individuals and members of the news media should be able to review documents showing how city bureaus, county departments, school districts and other governmental agencies conduct the public's business without having to wait weeks, months or longer to see them. The bill, which established a 15-business-day timeline for agencies to acknowledge and fulfill requests among other improvements, marked a promising step forward in the long campaign to increase transparency in Oregon.
One problem has emerged however: Agencies can — and do — blow past deadlines with no penalties for failing to follow the law, as last year's report by the Public Records Advocate Council noted. House Bill 2353, sponsored by Rep. Karin Power, D- Milwaukie, would address this problem by allowing district attorneys, the attorney general or a judge to impose a $200 penalty if the agency fails to respond or responds with "undue delay." The bill, which is scheduled for a public hearing on Wednesday in the House Judiciary Committee, should move forward and merits the same unanimous support that lawmakers gave in 2017.
HB 2353 is a smart, targeted and reasonable fix that reinforces the message that compliance is not optional. Attaching a penalty makes clear to agencies that their failure to release public records in a timely fashion carries consequences. Washington state already has such a penalty - allowing fines of up to $100 for each day an agency is found to have delayed turning over a record.
The bill leaves it up to the discretion of the legal authority in charge to decide whether to levy the penalty. And the penalty is modest enough that officials might actually impose it — helping ensure that behavior changes the next time an agency receives a public records request.
Reporters at media organizations across the state can attest to poor responses by public agencies at all levels of government, even with the new law — at least, until they bring pressure. The Oregonian/OregonLive's Gordon Friedman recently requested information from the Oregon Health Authority about its drafting of a bill to address treatment for people with mental illness who are charged with crimes. The deadline to acknowledge and fulfill the request went by, with no one responding to Friedman. He then wrote and submitted an appeal to the attorney general's office, which finally triggered a response from the health authority.
That's going on locally as well. The Multnomah County District Attorney's office, which oversees records appeals filed against city bureaus, county departments and Portland school districts, already considered and determined that at least two agencies violated the "undue delay" provision in 2018.
The potential of a $200 penalty could provide that pressure and save reporters and the public from having to file an appeal in the first place.
There's still a lot to fix in Oregon's public records law: Hundreds of public-disclosure exemptions are tucked into statutes and a fair fee structure is needed to bar agencies from charging excessive amounts as a way to dissuade requesters. In reality, it takes a deep familiarity with Oregon law, stubborn persistence, and the time and will to file appeals before many requesters secure the records that they seek — records that have, as past news investigations have shown, revealed fraud in a signature state tax-credit program; exposed a systemic failure to protect students from a Portland teacher accused repeatedly of misconduct; and demonstrated how the former governor's fiancee used her role for personal gain. Access to public records is more than just an academic exercise — it can be the only way media organizations and others can examine how people we elect to power are using it.
HB 2353's public hearing coincides with Sunshine Week, journalists' annual week-long campaign focused on government transparency and increasing access to public information. It's exactly the kind of remedy that should be celebrated. Lawmakers should move this bill forward and show once again that they're on the side of transparency.
-- The Oregonian