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County’s public records policy ‘invites potential abuse,’ state advocate saysBy Shaun Hall of the Daily Courier
July 11, 2019

In his second year as Josephine County legal counsel in 2016, Wally Hicks handed the county Board of Commissioners a draft of a new public records policy that would significantly change the way the county handles records requests from the public.

Not only did the new policy direct that all but routine requests be routed to the legal counsel’s office, it also effectively created a barrier unique in Oregon to citizens seeking records.

That’s because the legal counsel in Josephine County is an elected position — the only one among Oregon’s 36 counties — and under state law, the decision of an elected official to deny the release of records is appealable only to the courts.

Typically, when the public is denied records from local government, appeals can be made free of charge to the county district attorney, who is a state employee and by law must render a decision within a week. Appeals to the courts, however, are neither free nor quick, thus creating a barrier to public access.

Commissioners last week gave preliminary approval to a change that might remove that barrier by allowing denials to be appealed to the district attorney, except with one big caveat: If the board itself made the decision to withhold a record, appeals would still be forced into the courts, because the board itself is elected.

“If the board weighs in on it, circuit court is where it goes, otherwise it goes to the DA,” Hicks said in summing up the board’s position last week.

The board has denied multiple records requests over the last 18 months from the Daily Courier and one from the Illinois Valley News. None were appealed to the courts, and in the case of the Daily Courier, it was due to the cost involved.

Ginger McCall, who is the state’s first appointed public records advocate, said having elected officials decide records cases was a system open to abuse because it forced appeals into court.

“Most requesters simply do not have the resources to vindicate their rights in court,” McCall said last year in a biennial report of the state’s Public Records Advisory Council. “This creates a lack of accountability around the decisions of elected officials, as any disputes about the disclosure of public records in their possession can only be settled in court.”

State law allows elected officials to withhold documents “to which an elected official claims the right to withhold disclosure.” If it’s an elected official who decides to withhold a record, regardless of whether the record has anything to do with the official, judicial review would be the only recourse, according to McCall.

“This provision invites abuse and should be revisited by the Legislature,” she said.

Hicks said the same standard would apply for city councils and school boards, but the Daily Courier could find no local city councils or school boards that have their governing bodies decide records cases.

Cave Junction City Recorder Becky Patton said she would “absolutely not” take records requests to her city council, although she might ask the city attorney for advice before responding to a records request.

“I don’t see the council as having jurisdiction,” Patton said. “The State of Oregon does. Public records are serious business.”

Grants Pass City Recorder Karen Frerk said she herself replies to requestors, sometimes in consultation with the city attorney, but that requests have never gone to the City Council in her 20 years with the city. Grants Pass School District board secretary Levi Clark said she’s not aware of a records decision coming before the board in her 15 years with the district. Three Rivers School District Superintendent Dave Valenzuela said, “Our practice would never be to put it before the board.”

County commissioners last summer refused the Daily Courier’s request to release records detailing which of several federally owned properties the county was seeking title to, and the board this spring refused the newspaper’s request to release emails between the county and the Federal Aviation Administration concerning the lease of county land at the Illinois Valley Airport.

According to the county’s denials, sensitive property appraisal information was being protected in the first instance involving federal land managed by the Bureau of Land Management, and in the airport matter, internal or advisory communications between agencies were being protected.

Also this spring, the county legal counsel’s office denied the release of committee evaluations of PLACE, a Portland consulting firm vying for a county contract to create a fairgrounds master plan. Those records, too, were deemed internal advisory communications.

In 2018, the Daily Courier learned through public records requests that at least one elected official in Josephine County government has been the subject of a workplace complaint. The county spent at least $25,000 in 2018 on multiple investigations into workplace complaints against an elected official or officials. But Hicks refused to release the investigators’ reports or even the identity of the elected official or officials who were named in the complaints.

The board also denied a request by the Illinois Valley News for records related to citizen complaints about marijuana grow sites. That newspaper appealed to county District Attorney Ryan Mulkins, who ordered the records released. Hicks refused to comply with Mulkins’ order, maintaining that he, as an elected official, is not compelled to follow the DA’s instructions.

The Oregon Attorney General’s Public Records Manual says district attorneys may not review denials made by elected officials.

“Neither the Attorney General nor a district attorney may review an elected official’s decision to withhold a record from inspection under the Public Records Law,” according to the manual.

Mulkins agreed that a public records denial from any elected official would force any appeal into the courts.

“(State law) is clear that when an elected official has custody of a record or ‘claims the right to withhold disclosure,’ the only remedy available to [the] requester is [to] file in circuit court,” Mulkins said in an email. “An appeal to the court does cost money but a prevailing party may be entitled to reimbursement of their attorney’s fees.”

The records policy adopted by commissioners three years ago replaced a policy from 1992 that essentially said county employees would follow state records law. The new policy instructed employees to funnel requests to Hicks’ office for records “not routinely provided in the due course of business.”

Commissioners at the time talked about how the new policy would provide clarity and transparency.

“We just didn’t have a process,” then-Commissioner Simon Hare said, according to an audio recording from a Sept. 25, 2016, board meeting. “It gets everybody on the same page.”

“Everybody knows the process,” then-Commissioner Keith Heck said.

What wasn’t noted in the policy, however, was what would happen when an elected legal counsel denied the release of a record and forced appeals into the courts. When the Daily Courier complained to Hicks about the lack of recourse to the district attorney, he took the matter to commissioners on July 24 and Aug. 21 last year, but the board took no final action.

By then, commissioners Heck and Cherryl Walker had been replaced by Lily Morgan and Dan DeYoung, with Hare still on the board. All three commissioners at times suggested a policy that would force all appeals to the court, with Hare at one point suggesting the benefits of avoiding rulings by Mulkins.

“His rulings are not always consistent with what would be county policy,” Hare said. “Maybe we don’t need to go to the DA with anything.”

The commissioners wondered about a perceived conflict of interest in asking the district attorney to rule, since they controlled his budget.

In the end, DeYoung and Morgan at the Aug. 24 meeting, with Hare absent, agreed with a policy aimed at sending all appeals to the district attorney, except appeals of board decisions, which would be appealed to the courts.

“Going to the DA makes these things happen faster,” DeYoung said. “I think I’d rather go to the DA.”

“Unless the board denies it,” Morgan said.

“Unless the board denies it,” DeYoung agreed.

“That’s an important caveat,” Hicks said. “If that’s the direction you want to go, leave in an exception that the board as the governing body is the custodian of all county records.

“If anybody, elected or otherwise, has a pickle of a case, bring it to the board,” Hicks added.

“I like putting that caveat in there to the department heads,” Morgan said. “If it’s a doozy, bring it to the board.”

They agreed to take up the issue again with Hare, but the board never met again to make changes until last week, after the newspaper began questioning Hicks and commissioners for this story. By then, Darin Fowler had replaced Hare on the board.

At the suggestion of Hicks, commissioners last week informally agreed to a policy that would allow all appeals — even those involving elected officials — to go to the district attorney, except those requests decided by the board. Fowler said such a policy would be “less onerous.” Hicks said he would come back with a formal proposal, which hasn’t happened yet.

Jack Orchard, a Portland attorney who represents the Oregon Newspaper Publishers Association, said it would violate state law if a governing board withheld records not in its custody.

“If the records were in the custody of someone besides the elected body when the request was made, the elected body can’t intercede after the fact,” he said. “The custodian needs to respond.”

McCall, the state records advocate, said she would work for reform to provide a new avenue of appeal of elected officials’ decisions, short of the courts.

“It is unfortunate that there are no intermediate review avenues for elected official withholdings,” she said. “This is a provision of the law that invites potential abuse and should be reformed.”

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Reach reporter Shaun Hall at 541-474-3722 or shall@thedailycourier.com.