Electronic records considered public in Oregon

By William McCall
Portland, Oregon (AP) 3-08

Brian Prawitz believed it was a simple request: Show me the e-mail.

The answer was, sure, but it will cost you $7,800.

Welcome to the electronic world of Oregon public records.

Just because a record is public doesn’t mean it won’t cost a bundle to have it extracted from a database and edited, or vanish because new communications gizmos aren’t designed to archive text messages. Oregon journalists say these technical problems have joined some persistent problems, such as old-fashioned footdragging by public officials, in getting information needed to hold officials accountable.

Prawitz, news director at KQEN radio in Roseburg, asked to see the e-mail of Douglas County Commissioner Marilyn Kittelman after it was learned that her adviser, David Jaques, had access to her county computer.

Prawitz wanted to find out whether any conflict of interest resulted, considering Jaques also is chairman of the county planning commission and there was a question about whether Jaques had used Kittelman’s computer to send e-mail in his capacity as president of One Nation United, which opposes Indian casinos.

Jaques admitted he had used Kittelman’s computer regularly, but he had sent the e-mail using his personal account. The Oregon Government Ethics Commission later ruled that Jaques did not violate state ethics laws by using the computer for personal business, including checking his personal e-mail and paying his bills.

Prawitz, however, wanted to determine whether Jaques sent other e-mails from the county computer and what information they contained because he is not a county employee and is only a volunteer in his planning commission role.

Paul Meyer, the Douglas County counsel, estimated the public records request by KQEN owner Brooke Communications for e-mail and related electronic records would be about $7,800. Much of the cost involved staff time to redact the e-mails to remove any sensitive or confidential information.

The county board of commissioners voted to cut the cost in half – but Prawitz said that still is a very high price to pay for a small radio station.

“In my book it comes down to defending the public trust,” Prawitz said.

Tim Gleason, dean of the University of Oregon School of Journalism, says the sheer abundance of electronic gadgets and the overlap of home and office equipment creates new problems for maintaining public records. E-mail can be captured, despite the volume, but many messages – such as text messages on a cell phone – may be nearly impossible, or impractical, to capture and are lost forever.

“All this stuff is very ephemeral,” Gleason said, “and I think it’s one of the biggest challenges we face.”

Mary Beth Herkert, the state archivist, is the chief authority on public records in Oregon and works for the secretary of state, the official public records administrator for Oregon.

Herkert says it doesn’t matter whether you’re the governor or the dogcatcher, or whether you’re using an office computer or your personal PDA – just about anything electronic that involves government business is subject to state public records law in Oregon.

“If it relates to what you do in your public life, it’s a public record,” Herkert said.

Cost is another matter.

Under state law, agencies may charge a “reasonable” fee for searching and copying public records. But how much is reasonable is open to wide interpretation, although the state must provide an estimate of the cost.

In the KQEN case, the Oregon attorney general’s office said Douglas County only had to knock off 25 percent of the estimated cost to be fair to the media, so it would have cost the station about $5,800 – compared to the $3,900 the county decided was fair.

A.K. Dugan, editor of the Lebanon-Express in Lebanon, said the newspaper consulted with the Linn County district attorney’s office and the county counsel and it was assured it was entitled to a recording of a potentially controversial call between the city administrator and a city councilor. But the cost was $1,500.

By comparison, the Oregon Department of Public Safety Standards and Training charged only about $100 to compile hundreds of pages of documents from the investigation into Multnomah County Sheriff Bernie Giusto and place them on a CD. Still, reporters had to drive to Salem to pick up the CD, a considerable expense for many of them.

Herkert said part of the problem is the cost of maintaining electronic mass storage – what kind of format, how to control access, outdated hardware and software, incompatible systems and the always lurking threat of hackers.

“Storage is a nightmare,” Herkert said. “And it’s not cheap, like everybody thinks.”

But even when the amount charged for records is relatively small, the costs add up quickly when newspapers and broadcasters have to make repeated requests of government agencies.

Federal courts charge much less for downloading files electronically than to copy paper files at the court clerk’s office. But even at a few cents per page, thousands of pages of documents are filed in typical lawsuits, and many of them need to be reviewed.

Many requests for public records are simply rejected, whether they involve electronic records or paper files. Either way, it can take precious time to obtain them, and can often involve lawyers and court costs.

In Medford, the Mail Tribune was forced to sue the Jackson County sheriff over a request to provide the names of concealed-weapon permit holders after a teacher made public her plans to carry a gun to school for protection.

Scott Smith, an assistant city editor, said the sheriff’s office went so far as to remove the notation on the permit application form saying that it was a public record, and force the newspaper’s attorneys to extract an admission in court that the form was changed. The case is still pending.

Other cases border on the absurd.

Isolde Raftery, a reporter for The Columbian in Vancouver, Wash., said the newspaper was preparing to run a photo of a firefighter with a rescued cat. But when she called the veterinary hospital to check on the condition of the animal, she was told the cat’s privacy was protected by medical records laws.

When Raftery explained those laws apply to people, not animals, a clinic worker still refused to provide any information and did not allow her to talk to the veterinarian – which the newspaper explained in the photo caption.

“People thought it was funny, but it’s also sad they could refuse,” Raftery said.

In some cases, an expensive court battle can drag on for years.

The Oregonian sued the Portland School District in the early 1990s over documents related to the misuse of public property, eventually leading to the resignation of a high school principal. The case went all the way to the Oregon Supreme Court, and the newspaper did not get the documents until after the court ruled in 1999, more than six years after the original public records request was filed in 1993.

“That’s not what you want if you’re a daily newspaper,” said Managing Editor Therese Bottomly.