Governor’s open records responses keep public on a cold trail

By Taylor Anderson

SALEM — Delays in response to requests for Gov. Kate Brown’s public calendar make tracking the governor’s whereabouts — as well as keeping tabs on the interest groups she grants access to — more difficult in Oregon than in neighboring states.

Despite entering the office on the heels of a public scandal involving former Gov. John Kitzhaber and promising to strengthen the ability of the public — through the media — to keep tabs on the governor, Brown’s office has routinely taken weeks to release documents that are more readily available in Idaho, Washington and California, according to a review by The Bulletin.

“We also must strengthen laws to ensure timely release of public documents,” Brown said during her inaugural speech in February 2015. “We should not leave here without getting this done.”

Yet Brown’s office has repeatedly taken weeks to provide access to her basic calendars and other documents that could help track her, while governors from neighboring states provided the same information within days, or even hours. And while a group led by Attorney General Ellen Rosenblum is getting ready to pitch reforms to the Oregon records law, Brown’s office has used exemptions and looser deadlines to avoid real-time scrutiny of her work.

Delayed responses to requests for public records like a calendar have routinely kept the public unaware of Brown’s whereabouts as she travels the state and nation meeting with movers and shakers pushing major policies before Brown decides whether to sign them into law.

Those kinds of lengthy delays in releasing public records hampers the public’s ability to be involved in policy debates as they’re ongoing, said Sean Moulton, open government project manager for the Washington D.C.-based Project On Government Oversight.

“Potentially the public could still have an opportunity to participate and influence the outcomes, rather than just learning the story after the fact,” Moulton said.

Take the recent vote to increase the minimum wage as one example.

In the five-week February session, Democrats in the Legislature were working quickly to pass Senate Bill 1532, which hiked the minimum wage to among the highest in the nation, with the first of incremental raises for low-wage workers coming this July.

Lawmakers approved the bill Feb. 18, sending it on its way to the governor, a vocal supporter of the effort. Among the most influential backers of the increase were public employee unions including the Service Employees International Union, which was involved in an initiative to raise the minimum wage through a ballot measure if lawmakers didn’t do so first.

What the public hasn’t been aware of is what Brown discussed with the leaders from the union-backed coalition pushing for the minimum wage hike as the bill was undergoing contentious debate in the Legislature.

Brown met on Feb. 21 on the seventh floor of the JW Marriott Hotel in Washington, D.C., with Mary Kay Henry, international president of SEIU, according to a review of Brown’s basic calendar. Three days later, she met in her office with Ken Allen, the now-outgoing executive director of Oregon AFSCME Council 75, a local chapter of the national public employee union that also donated $100,000 to Brown’s election campaign.

Brown signed the minimum wage bill March 2. Brown’s calendar was released on April 26 through an open records request by The Bulletin, which asked for the records March 23.

The records released after the four-week waiting period, showing whom Brown met during the legislative session, provided only hints at Brown’s trail.

To get a full view of the substance of meetings, reporters must at times make two requests, each potentially delayed by processing as Brown’s staff works to juggle multiple requests for records.

The first request is for the bare-bones calendar that might show with whom Brown met, when they met and where. This might include a brief summary describing a meeting’s topic, but often it does not. It takes a second request to receive the staff memos and other materials prepared in advance of a meeting that are attached to the calendar but may not be provided as part of the initial request.

Reporters could also ask in one request for the meetings and documents for specific issues that are already in the public spotlight. The documents attached to the calendar provide the only substantive look at who is working to influence state public policy and their access to Brown.

They also complete the timeline from recent heated policy debates, and they backfill substance that was missing at the time the policies were debated and passed.

Brown’s office hasn’t yet completed a May 4 request, a follow-up to the initial March 23 request, for the details of the meeting with Henry and Allen, along with a request for documents from meetings related to other major policies that were debated before she signed them into law this year.

Chris Pair, one of Brown’s spokesmen, noted the office recently hired a new attorney, Emily Matasar, who is processing requests, has created a log that makes public all records Brown’s office has released, created two positions to help process and release records, and made an executive order for agencies to improve their open records process. But he noted the office still believes the law must be improved.

“Oregon’s public records laws are in definite need of an overhaul, as Governor Brown has said on numerous occasions,” Pair wrote in response to questions. “What has taken 40 years to create is going to take more than 16 months to undo.”

‘Advisory communications’

Brown’s office has at times used some of hundreds of exemptions that allow her to block the release of public or potentially public information, while governors to the north and east choose a more open approach.

Documents obtained through public records requests provide some insight into Brown’s involvement in a major policy debate in the 2016 legislative session over whether to double the amount of renewable sources within much of Oregon’s electric supply. But some potentially key pieces of information were withheld.

An Oct. 6 document prepared by Brown’s then-energy policy adviser before a meeting with environmental groups pushing for the renewable energy mandate shows there were two paths Oregon could have taken to increase renewables. It could have taken the path California took while doubling the amount of renewables in its electric supply, when the state commissioned a study of its electric grid before eventually passing the energy mandate, the Oct. 6 document said. Or Oregon could have ignored energy experts’ doubts that the state’s grid could handle the amount of wind and solar required under the proposed law and pass the mandate outright. The state chose the latter.

The document outlined what Brown’s adviser, Margi Hoffmann, believed the environmental groups would ask of the governor, but the office blocked several key paragraphs from view and denied a request from The Bulletin to make the redacted information, known as “advisory communications,” available.

Pair, in Brown’s office, said the governor could have kept the entire document, and other memos like it, hidden from public view or charged money to view it if she wanted. The office didn’t charge The Bulletin for the public records.

“Additionally, you’ll note that we have waived fees for the review of substantive memos, even though they take our attorney a long time to process,” Pair said, adding the office has fulfilled most of the requests it has received since Brown took office.

The Bulletin first requested that information Jan. 25. It took close to two months to receive the documents showing Brown met with the environmental groups in the weeks and months leading into the legislative session, when the major energy policy was passed.

A request from May 4 for documents and details from meetings with people involved on both sides of the debate over the energy bill hasn’t yet been fulfilled.

Washington, California and Idaho

It may be easier for the public in neighboring states to keep track of their governors’ whereabouts. When The Bulletin asked for Washington Democratic Gov. Jay Inslee’s public calendar from April 1 through May 4, his office provided Inslee’s calendar in less than two hours.

It took Brown’s office nearly three weeks to release the same time frame.

Although Washington courts have ruled governors can keep some documents from the public through what’s known in Oregon as advisory communications and in Washington as “executive privilege,” Inslee has vowed not to use that exemption.

Staff in Idaho Republican Gov. Butch Otter’s office provided the governor’s calendar within six hours. In California, Democratic Gov. Jerry Brown’s staff provided the calendar for the same time frame within a week.

“Our governor’s philosophy is that we should be overly transparent,” said Cally Younger, Otter’s legal counsel, adding the state law doesn’t allow the governor to block from public view his personal meetings if they appear on his calendar. “We don’t have an exemption that says the governor’s personal calendar is privileged.”

Younger also said the Idaho governor’s calendar detailing Otter’s future whereabouts is also open to the media. Brown’s attorneys denied a request from The Bulletin for her advanced public calendar, citing an internal policy they say is backed up by an exemption in the records law and protects the governor.

Part of the reason for other states quickly providing records could be internal policies, such as California preparing the governor’s calendar after each month in anticipation of the public seeking the records.

It could also have to do with tighter deadlines within state records laws. Idaho law requires agencies to provide records within 10 business days. In Washington, the window is shorter, giving state agencies five business days to provide records or to provide a reasonable timeline to give out the records.

If Oregon news outlets working to provide the public with insight into the governor’s office want to challenge an office’s slow release of records, their only option is to head to court.

“Ordinarily if you’re going after documents from an agency and the agency (withholds information), ultimately you can go to the attorney general’s office for a review of what they’ve done,” said Steven Wilker, a Portland attorney who is an expert in media law. “There’s no procedure like that when you’re going after records from the governor as an elected official.”

Elected officials who choose not to release part or all of a document or withhold other records can only be challenged in court. If Brown’s attorneys withhold information The Bulletin believes would belong to the public, such as her calendar for future dates, the only recourse is through the circuit court.

An option for improving the system is by reforming the law, but the process of public officials tightening transparency laws for themselves and their allies has been slow going.

A group led by Oregon Attorney General Ellen Rosenblum that has toured the state listening to journalists and members of the public about their struggles with the hundreds of exemptions and delays allowed by Oregon’s public records law is still working toward pitching policy changes to improve transparency. It is working to create a report ahead of the 2017 legislative session.