DAs often stumble on records rule delays
For decades, Portland Public Schools protected a teacher with a history of sexually abusing students, covering up for him by ignoring complaints about his behavior and allowing him to continue his assaults.
We know this sordid tale thanks to Bethany Barnes of The Oregonian, who early this year wrote detailed investigative reports about PPS's actions in keeping the teacher's behavior quiet.
Barnes couldn't have told this story without her forcing the school district to release records about the teacher. She filed a public records request, something that's everyone's right under Oregon law. But the school district refused to release the information she wanted. So Barnes appealed to the Multnomah County district attorney's office, which concluded the PPS wasn't following the law. The DA ordered the documents be released, giving the newspaper — and the public — a fuller picture of what really happened.
Oregon's 36 district attorneys play a vital role in our communities — they convene grand juries, prosecute criminals and sometimes launch their own investigations. The locally elected county prosecutors also have a little-known authority and duty to ensure our government is open and transparent: If a local agency improperly refuses to release public records in its possession, the county district attorney has the power to order those records be released.
These decisions help ensure openness and accountability in local governments, as the case with The Oregonian, and others, shows. In 2017, for example, the Multnomah County DA ordered the county animal control office to release records to Portland Tribune reporter Nick Budnick, showing an administrator had used county funds to buy gold bullion and survival gear.
In other cases, DAs agree to keep records confidential. Either way, decisions by the prosecutors have gone without any scrutiny.
In early 2018, students in my investigative reporting course at the University of Oregon decided to find out what kind of job the state's DAs were doing when it came to making sure public records stay open. So they asked all of Oregon's 36 DAs for copies of their public records orders in the past five years. That way, the students could see how the DAs handle appeals and enforce the public records law.
Instead, the students got a tough lesson in how hard it can be to get government officials to follow the public records law — even the same officials who are supposed to be enforcing the law.
A third of Oregon DAs — 12 out of 36 — didn't follow deadlines in the state's records law for responding to requests. They missed deadlines, failed to follow through or ignored the students altogether. And, when they did respond, most DAs told the students that it wasn't the public interest to reveal how they made their decisions — and that allowed them to charge fees for releasing public records. The estimates for fees the DAs sent to the students exceeded $1,000.
Oregon's public records law was a model for government sunshine when it first passed in 1973. Since then, lawmakers have choked off access to records by passing more than 500 exemptions, and agencies have slammed even more doors by charging fees too steep for most people to pay.
In 2017, the Legislature made one big fix in the law to curb the stalling and stonewalling of public records requests. Now, agencies must acknowledge a public records request within five working days and respond to it (with some exceptions) 10 days after that — if only to send an estimate of when the request will be fulfilled.
The journalism students had those deadlines in mind when they filed their requests. The students asked the DAs to release the past five years' worth of appeals (called "petitions") filed by citizens who have been denied public records by local governments. The students also asked to see any orders the DAs issued upholding the denials or telling the local government agencies to release the documents.
Most DAs were prompt and helpful in their responses. Multnomah County, for example, took all of six minutes to reply and point out that its public records appeals are online for all to read. (At the time, Multnomah was the only county to post its public records online.) The Lincoln County DA sent records within three days — and without charging any fees.
As it turned out, 10 of the state's DAs did not meet the basic five-day deadline for acknowledging a public records request, as the law requires. Students waited two to three weeks and sent a reminder email. This got things moving in seven of those cases.
But not always smoothly. Clatsop County District Attorney Joshua Marquis responded promptly to the original request, but then nothing followed from his office. A student sent a reminder email, which Marquis did not like. He accused the student of spending a "spam" public records request and scolded the student for not knowing how the public records law works.
In fact, the student did know the law. Marquis had not read the request — or the follow-up emails — carefully. He eventually sent the records.
Silence and apologies
In the end, the DAs in six counties (Crook, Klamath, Hood River, Polk, Wallowa and Yamhill) failed to follow through with the request or never responded at all. John Sewell, the DA in Hood River County, ignored students' public records request and, when I emailed him to ask why, he never wrote back.
Other DAs acknowledged their mistakes. Yamhill County DA Brad Berry, for example, missed the initial deadline, promised to get back to the students and then never did so. He sent the records after I followed up to ask why the students didn't receive the required response. Berry said he'd made a note to have his office search for the records, but must have lost track of the note. "That is on me," Berry wrote me. "Not an excuse, but an explanation."
Wade Whiting of Crook County offered an apology and shared internal emails to show how miscommunication had allowed the students' request to fall through the cracks. Aaron Felton, of Polk County, also owned up. "We did not fulfill our obligations under Oregon's public records statutes," he wrote in response to my inquiry. "I'm sure your student found the experience quite frustrating, too."
Next: Fees remain big obstacle to open government.
LAWYERS AND THE LAW
Last year, University of Oregon journalism students sent public records requests to all 36 district attorneys in Oregon. Twelve of the DAs failed to follow state law when it came to handling the requests by missing deadlines required by law, failing to follow through or ignoring the requests altogether. Here's the breakdown of the DAs' responses.
• Complied with the state law, meeting the five-day deadline for acknowledging a public records request and following up with a response:
• Missed the five-day deadline for acknowledging a public records request but responded later — in most cases after students followed up:
• Missed the five-day deadline for acknowledging a public records request, later acknowledged the student request, and then didn't follow through:
• Responded within the five-day deadline, but then did not follow through on the request:
• Never responded to the students:
Hood River County