Here's how good intentions lead to the erosion of government transparency.
In 2013, then-Secretary of State Kate Brown created the Small Business Assistance office to help companies navigate state regulations and do business with government agencies. In the last few years, the office helped address problems with how the Department of Human Services pays vendors, and reported how delays for a plan review from the Oregon Health Authority cost a residential care facility some $70,000 in construction holding costs.
According to the office's annual report, in 2016 they received 4,438 phone calls, worked with 374 businesses and handled 528 total cases.
But the substance of those thousands of calls and hundreds of complaints? It's nearly all secret.
House Bill 3274, at the request of Secretary of State Dennis Richardson, and signed into law earlier this month by now Governor Brown, expands an existing law that makes much of the office's work exempt from public disclosure. The law exempts records "prepared by or received by" the office, with the exception of case reports. It also exempts all "communications to and from" the office.
Rep. David Gomberg, one of two sponsors of the bill, said the law's intent is to protect private information of business complainants – "profits, formulas or strategy," he said. The goal, he said, is to prevent complaints from becoming "research for the competition."
But nothing in the new law mentions business privacy or trade secrets, nor is it clear how much proprietary information is actually provided in these complaints. Rather than allowing for redaction of private business information or giving the complainant the option to remain anonymous, the entire complaint is secret.
This protects not just the businesses – it protects the government agencies being complained about.
Gomberg points out that final reports from cases investigated by the office are public, and this is true. But a case report is rarely produced. Some cases are informational, some aren't fully investigated, some are referred to other agencies, and some just generally don't lead to complete resolution. If the office decides not to pursue a case about a complaint (because it's deemed trivial, frivolous, the office doesn't have the resources, it involves litigation or any of the other reasons listed in Oregon Revised Statute 56.206, Section 2) there will be no public record of the complaint.
Nor does the office create reports when it investigates complaints about local municipalities.
Of the 528 total cases from last year, small business advocate Ruth Miles said only two reports, in which the office recommended changes to a state agency, were generated.
To be clear, no one is saying the Small Business Assistance office is doing anything wrong. The concept behind the office, helping businesses cut through red tape, is laudable. But this is symptomatic of Oregon's overall problem with government transparency, and it explains why the state has more than 500 exemptions to public records disclosure.
In response to a narrow, specific concern, lawmakers passed a sweeping law for a specific agency.
"I think what's happened here is what happens too often," said attorney Jack Orchard, a partner with firm Ball Janik LLP who has represented a number of newspapers in freedom of information matters. "The exemption does not focus on what the supposed problem is. The exemption is just put on as a blanket, and then you have to work backwards from that... Rather than exempt the identity of the complaining party, the entire complaint is confidential."
And who wins? What policy goal is reached by shielding government agencies from public exposure of their inefficiencies and unresponsiveness?
HB 3274 leaves few avenues to hold accountable an office tasked with the goal of government accountability.
It would be wrong to write about transparency without full disclosure — I'm a board member of the local chapter of the Society of Professional Journalists, which has hired a lobbyist for the first time this legislative session to fight for government transparency reform. We want fewer, clearer exemptions; caps on fees agencies can charge for access to information; and a requirement that new technology is adopted by the government agencies with transparency in mind.
It's been interesting to be privy to this side of Salem — the behind-the-scenes negotiations and in-fighting. How long do you argue for the bill you really want, and when do you settle for the bill that's better than nothing?
The big win so far this session is passage of Senate Bill 481, which sets timelines for government agencies to respond to records requests. It's a great step forward, thanks to a push from Attorney General Ellen Rosenblum's office and bipartisan support.
But it's just a first step.
The journey continues with Senate Bill 106, which would create a public records advocate nominated by an advisory council. It's Brown's project, but now Secretary of State Dennis Richardson has come up with his own idea to house an advocate staffer in his office. Each version has its problems: Richardson's idea isn't statutory and the advocate would report directly to him. Brown's bill could lead to a long, bureaucratic mediation process.
Seemingly, this has become more of a squabble over political credit than a debate about policy.
The remaining piece of transparency legislation is House Bill 2101, introduced by Rep. John Huffman, which would set up regular review of Oregon's hundreds of public disclosure exemptions. Importantly, it would flag any new exemptions for further review before they go forward.
This expanded exemption for the Office of Small Business Assistance is exactly why we need HB 2101. Someone should have stepped back and asked, "Is this the right solution to the problem?"
This week we learned that an ex-Energy Department official took bribes in connection with state energy tax credits, and that the Oregon Government Ethics Commission is resuming its influence-peddling investigation into former Gov. John Kitzhaber and girlfriend Cylvia Hayes – all reminders that Salem doesn't run smoothly when we aren't watching.
In the face of things like the state budget crisis, a transparency fight over one office might seem trivial, but it's at the heart of what makes our state and our country work.
Democracy doesn't just die in the dark. It dies by degrees.
-- Samantha Swindler
@editorswindler / 503-294-4031
sswindler@oregonian.com