Over the last 25 years or so, advocates of openness in state government have lost ground each time the Legislature met, as bill after bill removed yet another set of records from public inspection — records that used to be open, back in the days when Oregon was considered a national leader for government transparency.
Over the years, legislators wrote into law hundreds of exemptions to the state's open records law — no one is quite certain how many, but Ginger McCall, the state's public records advocate, said in a recent report that at least 550 exemptions exist. To be clear, some of those exemptions are justified. But many never were, and yet they linger in state law.
The tide has turned somewhat in recent legislative sessions, as committees formed to examine the state of the public records law and new efforts were launched to clarify and add structure (and some teeth) to the rules governing access to records.
Still, every session brings with it the chance for additional exemptions to be added to the state's already-lengthy list. Bills that would do that already have been introduced this session. But, to be fair, this session also features bills that should cheer advocates of open government.
Here's a look at a few of the bills that have caught our interest thus far this session:
• Perhaps the most worrisome new bill of the session is Senate Bill 609, which would require people who make a request for public records to state how they intend to use the records. Let's dispense with this misbegotten bill right away: If records are public, it doesn't matter how the requester plans to use them, and it's not the place of the government to ask. It's clear that such a requirement potentially could have a chilling effect on requests for state records, an idea that flies in the face of government transparency.
• House Bill 2481 appears to be an attempt to designate as confidential reports from the state's so-called critical incident response teams — the teams assigned by the state Department of Human Services to cases in which a fatality involving a child was the result of abuse or neglect.
The reports from these critical incident response teams (CIRT is the acronym) are meant to reveal flaws with the state's child-welfare system and also to hold the department accountable for mistakes that could have been prevented. The public summary reports refer to children by their initials and leave out other identifying details. Still, they represent some of the only opportunities the public has to examine the inner workings of the department.
It could be that some state officials worry that these reports are a goldmine to attorneys filing civil lawsuits against the department. But we can think of a better way to stop those lawsuits: making sure the department has the tools to do more to prevent these deaths in the first place.
• We like the sound of a pair of bills that follow up on the work the Legislature launched in 2017. House Bill 2430 would remove the sunset date of the Public Records Advisory Council, one of the committees created to help cast a fresh eye on Oregon's public record laws. We didn't get to 550 exemptions overnight; it will take time for the council to tackle its work, and we like the idea of having the council on hand as a potential check against the resumption of exemption creep. And House Bill 2431 mandates that state agencies annually report to the public records advocate the number of records requests received and the number of those requests still outstanding. The data that would be collected if the bill passes will be valuable in helping citizens determine if we're making progress toward a more open government — and that, after all, is the point of all this.