Editorial: Here’s how open records become secret

Here’s a followup to a recent piece about the battle that Les Zaitz, the editor and publisher of the weekly Malheur Enterprise, fought (and won) to gain access to public records. It’s also a story about how exemptions to the Oregon Public Records Law often get approved by legislators in haste and with little oversight. First, a little background: The Enterprise was seeking records from the Oregon Psychiatric sk© Security SAVER SALE Review Board so it could try to figure out why the board had elected to release a fellow named Anthony Montwheeler.

You might recall the case: Montwheeler was released from the state mental hospital in December after telling the board he had faked mental illness for 20 years to stay out of prison following the 1996 kidnapping of his first wife and son. After his release, Montwheeler allegedly killed a different ex-wife in January after kidnapping her in Idaho. He then collided head-on with a vehicle while fleeing police in Oregon, killing the driver.

You can see why Zaitz and his newspaper were interested in what the public records would reveal about the board’s decision to release Montwheeler. It’s also fair to say that the case attracted a considerable amount of public interest. Nevertheless, the board refused to release the records.

Zaitz, who has experience in these fights for records, appealed to Attorney General Ellen Rosenblum. Rosenblum told the board to release the records. The board disagreed with Rosenblum’s ruling.

It hired outside counsel and then, because of a quirk in state law, the board sued the Enterprise. That’s when Gov. Kate Brown stepped in and ordered the board to drop its lawsuit and release the records.

And a member of the governor’s staff said that a search was underway to find ways to fix that quirk in the law. All in all, it looked as if this was shaping up as a rare victory for public records advocates in Oregon — until Zaitz broke another story: Just last week, a House committee rushed through legislation to revise the Oregon Public Records Law to exempt from disclosure medical records provided to the Psychiatric sk© Security SAVER SALE Review Board. In other words, it would remove from public view records like those that were released in the Montwheeler case.

Zaitz reported that the House Health Care Committee conducted a 14-minute hearing on the bill, House Bill 2836, before approving it. The bill is a classic example of a legislative technique colorfully (and accurately) known as the “gut and stuff,” in which a bill is stripped of its original language and replaced with new language: If you look up the bill on the very useful Oregon Legislative Information System, you need to know to click on the button that shows you all the proposed amendments. (The amendments are attached to the online version of this editorial.) Zaitz reported that the bill was requested by the Oregon Health Authority, but the agency did not respond to his questions about who drafted the bill.

Zaitz also reported that the agency was pushing for the bill despite concerns from the executive director of the Psychiatric sk© Security SAVER SALE Review Board that it was moving too fast. It’s not clear if the governor knew about the amended bill or if she approved of the idea behind the measure. We do know that the governor consistently has said that she supports greater government transparency.

We applauded Brown’s actions in intervening on behalf of the Enterprise.

Here’s something else she could do on behalf of government transparency: She can make it clear that she does not support pushing through the amended version of HB 2836 under these circumstances.

If the bill passes the Legislature, she should veto it — because one way to start to fix the state’s public record law is to prevent it from getting even one exemption weaker. (mm)

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