By some measurements, this year’s legislative session wasn’t a bad one for proponents of a transparent state government.
On the plus side, legislators passed a bill that could give some teeth to an earlier measure that established deadlines for governmental entities to respond to requests for records. A law passed by the 2017 session requires governmental bodies to acknowledge requests for records within five business days after receiving a request. And the law requires those bodies to fulfill those requests within 15 days, although the law does offer a variety of escape hatches in cases where it would be unduly burdensome to produce the records in that time frame.
Under the terms of a bill passed by the 2019 session, governments can be fined up to $200 or ordered to waive fees for gathering the records if a district attorney or the state attorney general determines that the delay is unreasonable.
This probably won’t amount to much (the fine isn’t particularly huge, and we suspect most district attorneys will not have much of an appetite to slap sanctions on entities under their jurisdiction), but this measure at least represents a small step forward.
The Legislature also approved a bill that made permanent the state’s Public Records Advisory Council; when the 2017 Legislature first approved creation of the council, it made it temporary. But these public records issues aren’t going away any time soon, so lawmakers made the right call when they made the council permanent.
And the Legislature did block a measure that would have represented a big step backward: a bill that would have required requesting parties to explain why they wanted access to the records died after word of the legislation spread. If a record is public, the government has no business asking why a citizen wants access to it. It is the business of the government to release that public record, no questions asked.
That’s the good news. The bad news is that this session ended up inflicting another two dozen or so wounds to the state’s open records laws.
It happens every session: Legislators pass bills that exempt from public inspection records that used to be open. In many cases, these bills are passed without much notice or public debate; in some cases, they slide through in the frenzy that accompanies the final few days of a session.
In any event, the end result is the same: The public loses access to yet another set of records that used to be open to inspection. Some of these so-called exemptions to the public records law are justified for privacy or other reasons. But many of them are not, and exist primarily because it’s more convenient for parties to keep that information confidential.
No one knows for sure how many of these exemptions exist in state law; the best guess now is more than 650. And no one knows yet for sure how many new exemptions the Legislature added during its 2019 session. Ginger McCall, the state’s public records advocate, told members of the Oregon Newspaper Publishers Association last week that her best guess now is somewhere around 25, but she’s still plowing through all the legislation that passed during the session.
Another committee, the Oregon Sunshine Committee for Public Records Law Reform, is working to review all the exemptions in state law, with an eye toward identifying the ones that no longer can be justified (if they ever could). The timeline for that work stretches out over the next 10 years, and this year’s Legislature has added to the task.
We’ve always argued that government works best when it functions in the sunshine — and when citizens have easy access to records that help illuminate its workings. Oregon’s records laws used to be among the best in the nation, but the sunshine fades a bit with every new exemption lawmakers approve. It will require sustained work to turn up the light.