Gov. Kate Brown delivers State of the State address
Gov. Kate Brown and Attorney General Ellen Rosenblum have both said the state's public records law needs improvement. Enormous hurdles persist. Kristyna Wentz-Graff/Staff
(The Oregonian/Oregonlive.com)
When two Pacific Green Party activists set out two years ago to let people know who was responsible for Portland's air pollution, they didn't realize how hard it would be.
In Seattle, Vancouver and Eugene, air districts post every company's air pollution permit online. Neighbors can look up the factory next door to see what it emits and what laws it must abide by. Portland's air overseer, the Oregon Department of Environmental Quality, does not.
So the activists, Greg Bourget and Seth Woolley, began doing the work themselves. They requested copies of the permits, which are public documents under Oregon's Public Records Law.
They faced a time-consuming and laborious process to make the public records available to the public, a common problem faced by Oregon journalists and ordinary citizens alike.
Gov. Kate Brown and Attorney General Ellen Rosenblum have both said they value transparency and that the state's system needs improvement. Rosenblum has convened a task force to propose reforms to state records law.
Enormous hurdles persist. Public agencies in Oregon frequently charge fees so exorbitant that they dissuade public scrutiny.
The problem has special resonance for the Department of Environmental Quality, whose director resigned earlier this year amid revelations of delays in disclosure about the discovery of toxic air pollutants in Portland neighborhoods.
When Bourget and Woolley, part of a group called Portland Clean Air, made their request, the agency initially responded with blank permits, Bourget said. Then an official said producing paper copies would cost $800, a fee eventually waived after Bourget threatened to sue. Releasing electronic records, Bourget recalled being told, would cost even more because confidential information was commingled.
The two men and other volunteers spent more than 40 hours in a windowless room feeding documents into a scanner at an agency office. Then they mapped the permit holders online, allowing the public to easily see who pollutes the air nearby. The process took months.
"The whole point of our doing outreach was to enable people to participate in the DEQ process - and they make it very difficult to do that," Woolley said. "I just feel like they're hiding everything."
Woolley said he's asked for documents from numerous public agencies in Oregon. "DEQ was by far the worst," he said.
Pete Shepherd, the department's interim director, said he's committed to aggressively addressing concerns about the agency's transparency. Shepherd, who took office April 20, wants permits like the ones Woolley sought to be online and plans to hire a centralized records officer to manage requests more cohesively. He said he's evaluating how the agency levies fees and how it decides whether to waive charges.
"I'm really interested in trying to figure out whether there's a better way to do it," he said.
The agency has historically only offered a small $200 annual fee waiver to news organizations and other community groups. Fees charged under state law can be waived if a record's disclosure is in the public interest.
Advocates are skeptical of Shepherd's promises. He's had an adversarial relationship with the state's Public Records Law in his earlier work as an attorney in public and private practice.
Notably, he represented the Oregon Public Employees Retirement System in a lawsuit against The Oregonian that sought to keep employee pension payments secret. The information was eventually made public. He worked at the Oregon Department of Justice during what reporters say was a low point for transparency statewide.
Mary Peveto, president of Neighbors for Clean Air, a Portland nonprofit, said Shepherd's earlier work on public records was the most concerning red flag she spotted when he was hired.
Since Shepherd took office April 20, at least two requests for documents have floundered or been met with high fees.
In one case, Peveto's group requested documentation to understand how the state agency recently chose safety goals for hexavalent chromium, a carcinogenic pollutant at the center of ongoing air quality concerns in Southeast Portland. The group abandoned its pursuit after receiving a $530 estimate for records.
Peveto said the environmental agency's lack of transparency makes it more difficult for advocates statewide to be informed participants in environmental policy decisions that affect the health of every Oregonian.
"It's an out-of-the-gate barrier," she said. "It stops things before they happen by not empowering community groups to understand what they're doing."
In another instance, the agency told The Oregonian/OregonLive it would cost more than $1,000 to produce emails, inspections and other reports related to two businesses that Hayden Island residents suspect are the source of odors so overwhelming they've awoken at night with headaches and bloody noses.
Shepherd agreed to waive $700 of the charges after the news organization repeatedly protested, notified Gov. Kate Brown's office of the cost, and told the agency its fees would be described in a news story.
The agency still plans to charge $300 to get records out of storage. When the agency moved offices last year, it put volumes of records in a storage facility run by a private contractor, Iron Mountain. Thousands of inspections, annual reports and other vital records about Portland's polluters are now behind a pay wall: $60 for the first box, $12 for each additional box.
The system is structured so that even the state has to pay to get its own records out of storage.
Nina DeConcini, a Department of Environmental Quality regional administrator, said off-site storage was cheaper than office space. And the floors in the agency's new office near Lloyd Center weren't strong enough to support the files' weight, she said.
But Oregon's state archivist maintains a warehouse called the State Records Center in Salem, where agencies can store records. It costs an agency to keep the records there but not to access them.
It is unclear why the Department of Environmental Quality did not use that system. Shepherd said he was unsure.
Still, the agency marks up the fees it charges the public, effectively turning its own records into a profit center. Getting a box of records from the State Records Center doesn't cost the agency anything. Yet it charges the public $60 for retrieval. The same box from the department's private storage center costs the agency $36.78. The public gets billed $60.
Shepherd said he plans to examine those charges as part of his review of the agency's fees.
-- Rob Davis
rdavis@oregonian.com
503.294.7657