The Oregon Court of Appeals recently stayed a judge's order that would have forced Gov. Kate Brown's administration to release 250 or so bill proposals it's pondering for the 2019 legislative session.
The Court of Appeals' action on Oct. 26 means that the public would not see the proposals until after the election, despite the previous ruling from Marion County Circuit Court Judge Audrey Broyles that there was "significant public interest in the documents being disclosed."
The Brown administration asked the Court of Appeals to stay Broyles' order and the court agreed, saying it believed the appeal was filed in good faith and was not an attempt to delay the release of the bill proposals until after the election.
But we believe Broyles was right in the first place: The public should have been able to see — before the election — what legislative bills administration officials are considering.
At issue are documents in which various state agencies propose legislative concepts to the governor. In these documents, agencies identify the issues they want to resolve and suggest how the law can be changed to address those 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 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 court's Oct. 26 ruling allowed the administration to revert to its original plan, which was to release the documents 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 you may recall, is after this week's election, in which Brown was being challenged by Republican Knute Buehler.
The Department of Administrative Services has said that the denial isn't a change in policy; rather, it says, state agencies want 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.
The judge's ruling came in a response to a lawsuit that Chaimov and his firm, Davis Wright Tremaine, filed contesting the refusal to release the documents. (Chaimov, by the way, is a former legislative lawyer. And it may or may not be germane that one of Davis Wright Tremaine's clients is Priority Oregon, the business-friendly political nonprofit that had been running ads against Brown.)
The lawsuit challenged the state's argument that the documents are protected by attorney-client privilege. John DiLorenzo of Davis Wright Tremaine argued 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.
The judge sided with DiLorenzo, but everyone expected the administration to appeal the case — unless Brown decided to order the release of the documents. That would have been in keeping with her vow, made when she assumed the governor's office, that her administration would restore faith in state government in large part by emphasizing transparency.
It would also be in keeping with a key part of open government — the idea that the process of making new laws, as messy as it can be sometimes, needs to be done in full view of the public. We'd like to hear the governor explain why she apparently doesn't agree.