A major flaw in Oregon’s Public Records Law is that it allows public agencies to conduct investigations and compile reports and then keep all of the information secret — simply by hiring an attorney to do the work.
A current situation involving the Baker School District highlights this loophole that betrays the law’s purpose, which is that the public ought to be able to see the records it pays for.
Here’s what happened:
The school district earlier this spring hired a Salem attorney, J. Hank Stebbins, to review the district’s policies for hiring athletic coaches and dealing with complaints regarding their behavior toward students. The impetus was the case of Warren Wilson, a former coach whom 5J Superintendent Mark Witty fired this winter following complaints by Baker High School volleyball players.
During a recent school board meeting, Witty said Stebbins’ investigation showed that 5J administrators need more training regarding Title IX, the federal law that prohibits sex discrimination against students and school employees. Witty said Stebbins also recommended the district have a single employee designated as Title IX investigator. Witty told the board he would assign an administrator to fulfill that role.
The Baker City Herald asked the district for a copy of Stebbins’ report. The district denied the request, and the Herald, as prescribed by the Public Records Law, appealed to District Attorney Matt Shirtcliff.
Shirtcliff upheld the district’s denial based in part on attorney-client privilege (the district attorney also concluded that parts of Stebbins’ report are exempt from public disclosure because they involve personnel discipline and interviews with students and others that were done with an expectation that they would be confidential).
You might be surprised to learn that attorney-client privilege, a sacred legal precept generally associated with individuals or businesses, also applies to taxpayer-funded entities such as school districts.
The privilege is not absolute when it comes to public agencies, however.
If, for instance, an official from the agency makes a public statement that could be construed as “characterizing or partially disclosing” factual information from an attorney’s report, then the privilege can be waived.
Shirtcliff, in denying the Herald’s request for Stebbins’ report, wrote that “this office does not find that has occurred.”
Yet Witty, during a public meeting, specifically cited some of Stebbins’ recommendations based on his investigation. That’s one reason the Herald will appeal Shirtcliff’s decision to the Baker County Circuit Court.
Ultimately, though, the problem here is not the legal arguments or interpretations, but the Public Records Law itself.
It is antithetical to the law’s fundamental premise — that public agencies should not be able to hide information from taxpayers — to allow those agencies to obscure their activities so easily. That they have to pay an attorney to obtain this secrecy merely adds another bitter ingredient to an already noxious stew.
— Jayson Jacoby, Baker City Herald editor