Time to Reverse the Public Records Act Burden

Instead of making citizens request information, it’s time to make openness the default setting for all Oregon governments instead of just empty rhetoric:

1) All public work would be stored on fully open servers and indexed continually as created.

2) Instead of citizen public records requests, officials would have to ask for and get the OK to create or store any records outside the fully open systems.

3) Records would be “Born Free” instead of born hidden and then only released on request.

 The Oregon Secretary of State’s office just issued a lengthy report on the state government’s persistent and widespread failure to comply with our Public Records Act. That act, one of the many “Sunshine Laws” that were created around the United States in the 1970s, followed in response to the realization by many that much of the worst harms by public agencies were allowed to grow into such catastrophes because, before these laws, the usual response from a government office to a request for information from ordinary citizen was “Who wants to know?”

The Public Records Act was intended to ban that kind of response, and create a default position of openness based on the idea that citizens in a democracy have a right to know what was being done in their name, and that we all have a right to know how the decisions are made, who influences them, and what was considered. But the many interests who prefer to operate outside the public view have been tireless in throwing up shade barriers, and so the “sunshine” is now less and less bright.

The whole public records act process in Oregon, as elsewhere, has become a bureaucratic swamp of agency evasion, vindictive fees and delay, because they are all baked into the very basis of a public records act where the citizen approaches the government on bended knee with a request for a record, and the government gets to decide whether or not it understands the request, how long it will take to understand the request, how much it will charge the citizen to come to that understanding, and how hard it will fight to oppose the request.

Thus, it is now time to give up on the idea that openness is optional, and that government is to be trusted to consider citizen requests and restrict refusals to produce records to a short list of obvious exceptions.

Instead, Oregon must move to a system where all public records are stored on openly accessible servers that anyone can access day or night and browse, anonymously and freely, without charge, and the records must be indexed so that the records are intelligible.

In this world, the only time citizens will need a public records act request is when a public official has completed the lengthy and somewhat difficult process of getting approval to create and store certain records outside the publicly accessible servers, a process that will create a trail to follow so that the citizen-requester can know that the record exists, who has it, and the reason it’s not already available, so that the citizen can challenge the rationale.

We don’t need more training for officials on how to handle public records requests — what we need are systems that make public record requests unnecessary 99.99% of the time, because all the records are either automatically accessible or indisputably not appropriate for public disclosure — with the burden on the creator of the record to obtain that status before storing the record out of public view.

Below are selected excerpts from the Secretary of State report.

 One way agencies can improve transparency is to use technology to be proactive, rather than reactive – that is, simply make public information available upfront, rather than waiting for the public to ask for it. This is the motivation behind Oregon’s Open Data Portal, located at data.oregon.gov.
 
Several agencies have taken similar action. For example, the Oregon State Board of Nursing posts several types of public information online, including disciplinary actions against licensees. The Oregon Liquor Control Commission posts information about licensed businesses and new license applications it receives.
 
This kind of proactive accountability is beneficial both for agencies and for requesters. Requesters are able to quickly and easily locate information, eliminating the need for certain public records requests. Agencies, in turn, receive fewer requests and are able to devote more time and resources to unique requests or their other duties.
 
It does, however, come with its own risks. The Employment Department, for example, told us it has considered putting some information online – but certain information, due to confidentiality, simply cannot be posted. Agencies must be careful about the records they post online to avoid accidentally sharing sensitive or confidential information.

The report’s tepid and cursory recommendations, below, show how hard it will be to penetrate the ossified thinking that prevails in Salem and throughout governments about public records and who should bear the burden of effort with respect to openness in public business.

We have built a needlessly costly and complicated system on a premise that records are born hidden, and can be brought to light through a request and response system that allows for bureaucratic discretion in responding to the requests.

That system needs to be ended and completely reinvented in a simpler way. We do not need more expensive tweaking of an already groaning system that is riddled with politically motivated exceptions that flourish in any such discretion-based system.

As Copernicus showed in demolishing the Ptolemaic celestial model, the best solution to this kind of problem is often to rethink the fundamental premise of the problem, the one that is creating the cascade of smaller problems, not to keep adding refinements to correct the problems caused by the last refinements.

To bring more consistency to agency responses to public records requests, the Department of Administrative Services should provide statewide guidance and training on:
 
§ procedures for handling non-routine and complex public records requests, including communicating with requesters regarding fees and timelines;

§ procedures for the use and retention of electronic communication, including text and instant messaging as they relate to public records law; and

§ procedures for the use of personal devices and personal email accounts, as they relate to public records law.
 
To address the variation in fees charged by state agencies, the Department of Administrative Services should also consider:
 
§ creating rates to charge for the cost of copies of public records; and

§ identifying rates to charge for labor for state employees working on public records requests.
 
To improve responses to public records requests, state agencies should create policies and procedures based on the guidance to be provided by the Department of Administrative Services, and:
 
§ implement a record management program or process that fits the needs of each agency (e.g. HPRM or another system);

§ create goals for turnaround time that fit agencies’ processes based on past experiences with responding to requests;

§ create and keep a tracking mechanism, such as a log, to measure adherence to turnaround time goals and to track documentation related to each request; and
§ identify frequently requested information and consider proactively making the information available (e.g., posting more information on agency website or the Oregon Transparency Website).
 
To address concerns regarding high fees and long turnaround times for public records requests, the Oregon Legislature should:
 
§ consider creating a third party, such as an ombudsman, to review disputes over non-routine requests; and

§ take into consideration the results of the Attorney General’s task force for any recommended changes to the public records law.

Here is the Executive Summary. For those who find this tl;dr (“too long, didn’t read”), here is the translation as OregonPEN sees it:

Most public records requests should never have been necessary because they require no thought to fill and there was no reason that the information should not already have been available to the requester. But whenever a request seeks anything that doesn’t fall into the “shouldn’t have needed a request to get this,” category, the system breaks down, because it inherently tasks bureaucrats with the terrifying responsibility of approving release of information that they may not themselves understand, so the bureaucrat’s natural response is to seek additional internal reviews and approvals to find and assess whether anyone will get in trouble for releasing the information. This review wastes vast amounts of resources because people have to stop doing productive work simply to review requests for records of past work. The system is erratic in trying to recover those costs and agencies are adept at using cost-recovery to discourage public insight into their doings.

State Agencies Respond Well to Routine Public Records Requests, but Struggle with Complex Requests and Emerging Technologies

Executive Summary

Oregon state agencies respond well to most public records requests for routine information, but the infrequent complex requests produce challenges. As a result, some requesters believe that agencies deliberately discourage, delay, or block the release of public information.
 
The Department of Administrative Services should provide guidance and training to help agencies develop procedures, and agencies should create timeliness goals for responding to requests. Better monitoring, consistent fees, use of technology, and third-party mediation could also help with the retention and disclosure of public records and improve trust in Oregon’s government.
 
Oregon’s public records law was enacted in 1973. Known primarily as a law of disclosure, the law grants all citizens within the state of Oregon the right to inspect all records – with some exceptions.
 
When the law first passed, it included 16 classes of records that could be exempt from disclosure for a total of 55 exemptions. Changes and revisions since that time have raised the total number of exemptions in Oregon law
to more than 400. The intent, however, remains the same: that Oregon’s government is accessible and transparent to its people.
 
For our audit, we examined nine agencies of varying sizes and missions to capture a fuller picture of public records in Oregon state agencies. The nine agencies were:
 
§ The Department of Human Services
§ The Oregon Employment Department
§ The Department of Environmental Quality
§ The Public Employees Retirement System
§ The Oregon Liquor Control Commission
§ The Oregon Department of Education
§ The Oregon Real Estate Agency
§ The Oregon State Board of Nursing
§ The Board of Parole and Post-Prison Supervision
 
Agencies handle routine requests well, struggle with complex ones

We found that public records requests generally fall into one of two categories. The first is routine requests, or common requests for information that agencies have easy and ready access to. These requests, which generally make up 90 percent or more of an agency’s total requests, can be fulfilled at little to no cost and within a couple of weeks.
 
The other category is non-routine or complex requests. These are voluminous in scope, ask for “any and all” information, or are otherwise complicated for an agency to complete. These are the requests that can take weeks or months to fulfill and often at a high cost.
 
In the selected files we reviewed, we found no evidence to suggest that agencies were regularly taking an unreasonably long time, or charging unreasonably high fees, to respond to records requests. But when agencies struggle to respond to complex, non-routine requests, it can foster suspicion and distrust, which in turn can undermine the credibility and transparency of both the agency and Oregon government.
 
To address this distrust, some states and provinces have established a neutral, third-party entity that helps mediate disagreements between requesters and agencies. An ombudsman or commission can help determine when a request is too broad or when an agency is taking an unreasonably long time to respond. Oregon has no such mechanism. The Attorney General’s role is limited to denials based on exemptions and fee waivers.
 
Agencies retain public records longer than required

It is important that agencies properly retain and manage their public records so they can be efficiently located and disclosed in response to a records request. To do this, agencies must follow their retention schedules – guidelines, created and authorized by the Archives Division, that determine how long certain records must be kept before they are destroyed or transferred to the State Archives for permanent retention.
 
But we found that agencies are keeping too many records for too long, resulting in a large volume of information. Some employees are too cautious about accidentally deleting or losing track of a public record, and so have a tendency to “keep everything.”
 
We found that better management tools and specific training on the issue of record retention may help state employees better manage records. This can reduce the volume of public information statewide and assist agencies to more efficiently respond to public records requests.
 
Exemptions remain an issue and may require a closer look

Exemptions – those instances in which a record may be exempt from disclosure – make up a major portion of Oregon’s public records law.
 
Agencies generally understand which exemptions most commonly apply to the records in their care. But due to the sheer number of exemptions in the law, including how they are worded and where in statute they are located, staff sometimes must consult with experts or the Department of Justice.
 
There is a perception among some requesters that agencies inappropriately use exemptions to block the release of public information. Most of Oregon’s exemptions are applied at the agency’s discretion. After weighing the public interest, these records may be disclosed even if an exemption applies. The exception is confidential information, which is legally prohibited from release.
 
These issues regarding exemptions are not new. After a national report gave Oregon a failing grade in government transparency eight years ago, state officials closely examined the law and accepted feedback from requesters and public officials. Their findings, published in 2010 as the Attorney General’s Government Transparency Report, found that “Any meaningful overhaul of Oregon’s public records law must reorganize and make coherent sense of the numerous exemptions.”
 
A bill was subsequently introduced in the 2011 legislative session to address some of these recommendations, but it failed to pass. A task force was recently convened by the Attorney General to examine in greater detail the issues of exemptions in Oregon law.
 
Variations in responses frustrate some requesters

Requesters expect their government will be transparent and open, that fees charged for requests will be reasonable and records will be made available as quickly as possible. They expect agencies that fail to do so will be held accountable.
 
But variation among agencies’ responses to records requests – in both fees and timeliness – can lead to confusion and frustration among requesters when they are not sure what kind of response to expect.
 
Agencies charge differing fees to provide public information. This variation extends to both the fees for copying costs and the charge for staff time to respond to a request. Agencies charge anywhere from $0.05 to $0.25 per page in copying costs, and from $15 to $40 per hour for staff time.
 
We also found a time variation among agencies in responding to requests, due largely to the differences between routine and non-routine requests. First, agencies have varying internal guidelines for what it means to be timely, if they have any internal guidelines at all. Second, timeliness depends largely on the type of request an agency receives. We found that routine requests were fulfilled within 14 days, while non-routine requests could take upwards of 265 days to fulfill.
 
We saw no evidence to suggest that adding a specific deadline in law would positively affect agencies’ abilities to respond to requests in a timely fashion. But agencies that set internal guidelines or goals to respond to requests hold themselves accountable to requesters while maintaining the flexibility provided in Oregon law.
 
Agencies are not keeping up with changing technologies

Oregon’s public records law was updated in 2011 to extend the definition of a public record to electronic or digital messages. Agencies have taken a longer time to update their own policies to include emerging technologies such as email, text, and instant messages.
 
More than half of the agencies we examined had policies to address email as it relates to public records. But only one agency had specific language to address the use of a personal or private email account in conducting the public’s business. Only one agency had a policy to address the use of instant messages, and no agencies had policies regarding text messages, as public records.
 
A few agencies have adopted policies to address social media, which appear to draw language from the Social Networking Media guide provided by the Department of Administrative Services.
 
Technologies like those mentioned above have changed how government and its agencies communicate with the public. Technology can also help agencies improve transparency by being proactive and making information available online. Several agencies have done so with commonly requested information, which can help reduce the overall number of public records requests.
 
Recommendations
 
Our recommendations are addressed to three groups: the Department of Administrative Services (DAS), all state agencies, and the Oregon Legislature.
 
We recommend the Department of Administrative Services create statewide, standard rates for copying and rates for employee labor, to resolve some of the inconsistency in public records requests fees statewide. We also recommend they provide guidance to agencies regarding communication technologies as they relate to public records, including personal email, text and instant messages, and social media.
 
For agencies, we recommend they create policies and procedures to clearly address communication technologies under the guidance of DAS. We also recommend they adopt tools to help manage both record retention and public records requests.
 
For the Legislature, we recommend they consider creating a neutral third- party, such as an ombudsman, to mediate disputes between requesters and agencies. We also encourage them to consider the forthcoming results from the Attorney General’s task force for any recommended changes regarding the public records law.