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03/10/07
Sunshine Week 2007
Oregon
relies on civic rectitude, judges to keep government open
By TIM FOUGHT
Associated Press Writer
PORTLAND, Ore. (AP) -- Although Oregon's open government laws
don't have sharp teeth, that doesn't mean public officials
should count on flouting them and getting away with it.
Take Mayor Rob Drake, whose city of Beaverton was held in
contempt last year for withholding city records from Nike
in an annexation dispute. In the end, considering the $175,000
it had to pay Nike for lawyer's fees, the city racked up legal
expenses he estimates at $900,000.
As a nationwide Associated Press assessment has found, enforcement
of open government laws is tepid. Oregon is no exception.
The state's open government laws have remedies, but few penalties.
Ultimately, they rely on a culture often praised for putting
a premium on open government -- and on the rulings of judges
such as Washington County Circuit Judge Gayle Nachtigal, whose
January decision in the Nike case had sharp edges and cheered
open-government advocates.
She estimated that Beaverton might have been spent only $5,000
on the case if it had coughed up records early and said, "It's
hard to know what may have happened if the city had been honest
and forthright at the earliest opportunity."
For his part, Drake still believes that the city acted in
good faith. "We were trying to get to where the judge
wanted us to go," he said. "I never thought we did
anything wrong."
The Beaverton-Nike case was a notable open government case
in Oregon, in large part because it involved Phil Knight's
company.
For Jack Orchard, a Portland lawyer who handles open government
cases for the Oregon Newspaper Publishers Association, that
sort of decision suggests that the state's laws have some
grit, either in deterring such activity or in decisions Beaverton
voters could make.
"Maybe there will be some political consequences to what
happened there," he said.
The state's open government laws date to a nationwide burst
of such sunshine laws in the 1970s.
Their premise is that records and meetings are open except
for the exceptions spelled out in the law, such as when public
bodies can meet with lawyers to discuss litigation or when
public records contain sensitive information such as medical
records or trade secrets.
When there's a dispute over records in Oregon, the remedy
is first in the hands of district attorneys if a local government
is involved. The attorney general makes the call if it's state
government.
But if either side is unhappy with a district attorney or
attorney general decision, the matter goes to the courts --
all the way to the state Supreme Court sometimes.
If the government loses a records case, the remedy is like
that in Beaverton: The government gives up the records.
In a case where a public body meets illegally in secret, a
judge can void any decision the body reaches, forcing it to
go back to the table and meet in public.
That's known as the "do-over" because it can result
in a board trying to recreate its decision-making in a public
setting.
Beyond that, there are fees. A judge can order a public official
who willfully violates the meetings law to pay the complaining
party's attorney's fees. A public body that loses an open
government case can be ordered to pay the winners' attorney
fees: That's required in records cases and at the discretion
of judges in meetings cases.
While few can match the political and financial might that
Nike could bring to bear in a public records request, Orchard
said it's common for members of the public who win a records
case to get $5,000 to $25,000 to cover attorney fees.
Orchard said there's been little discussion of toughening
enforcement of the laws. One exception, he said, would have
actually penalized journalists for reporting on closed meetings,
some of which, under state law, journalists can attend with
the understanding that they cannot directly report the proceedings.
The proposal went nowhere, he said.
But beyond the nuts and bolts of the law, there is a broader
kind of sanction, in the opinion of Tim Gleason, dean of the
University of Oregon's journalism and communication school.
"The real punishment is that you have been publicly identified
as having broken the law," he said.
"The public culture of Oregon continues to be one of
valuing openness," Gleason said, and so open government
relies not on fines and penalties but on the sense among members
of the public that "openness is the right thing and the
best thing."
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On the Net:
Oregon Newspaper Publishers Association: http://www.orenews.com/
University of Oregon School of Journalism and Communication:
http://jcomm.uoregon.edu/
Open Oregon: http://www.open-oregon.com/
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