State agency wins first step to close public records, doesn’t mention Montwheeler

A memorial for David Bates marks the spot where he was killed in a collision on Jan. 9, 2017, on Oregon Highway 201 near Ontario.

By Les Zaitz

The Enterprise

Legislation rushed through a House committee last week would keep the public from seeing state records such as those recently released concerning accused killer Anthony W. Montwheeler.

House Bill 2836 would revise the Oregon Public Records Law to exempt from disclosure medical records provided to the state Psychiatric Security Review Board. The House Health Care Committee conducted a 14-minute public hearing Friday before passing the legislation. It now goes to the House for approval and then would go to the state Senate.

Legislators acted after the Security Review Board recently released 125 pages of records concerning Montwheeler. He was put under jurisdiction of the board in 1997 after successfully asserting an insanity defense to charges he kidnapped his second wife and son in Baker City. He remained under state control until last December, when the Security Review Board released him despite warnings he was a risk. He subsequently was charged with aggravated murder, assault and kidnapping.

The Security Review Board records reported Montwheeler’s claims that his attorney in 1997 coached him on how to act insane so he could go to the Oregon State Hospital instead of prison. The records showed state doctors almost from the start suspected he was faking his illness.

The move to cloak such records in secrecy came one day after Gov. Kate Brown directed the Security Review Board to release the records to the Malheur Enterprise. The agency sued the newspaper to prevent disclosure, but dropped the case at Brown’s urging.

Legislative records show that the Oregon Health Authority, which oversees the state hospital, promoted the secrecy move. The draft law was produced a day after Brown’s involvement in the case. Her staff said Monday that “the governor’s office understood that OHA was discussing a confidentiality issue with the Legislature.” Her spokesman didn’t answer whether she approved the concept.

The amendment wasn’t posted for public viewing by the Legislature until April 11 – four days before the public hearing on the bill.

The agency pressed for the law change even though Juliet Britton, executive director of the Security Review Board, said the legislation was moving too fast.

“I was concerned that the short amount of prep time to digest the amendment draft was insufficient to fully appreciate how the bill could affect our agency,” Britton said Monday. She said she decided last week not to testify on the legislation and urged the Oregon Health Authority “to postpone work on this issue.”

The amendment was accomplished with a legislative technique known as “gut and stuff,” where an original piece of legislation is stripped except for its bill number and title and replaced with new language.

The caption for the HB 2836 described it as requiring the Oregon Health Authority to study certain health care programs.

The committee’s agenda for Friday’s session listed the original intent of the bill and made no mention of the switch in legislative intent.

Micky Logan, state hospital legal affairs director, told legislators that medical records provided to the Security Review Board needed to be confidential for public safety. She said patients expect what they tell their doctors to remain private, and that they would be less forthcoming if their records were public.

She said patient files wouldn’t be as complete, leading to “placement errors” in the community of those found guilty except for insanity. She warned of more crimes by patients “whose danger level the PSRB underestimates because it lacked insufficient information to make an informed decision. This reduces public safety.”

She also said the Security Review Board might also keep patients assigned to the hospital “much longer than necessary” and at high cost.

Logan noted that the Security Review Board would continue to hold open hearings regarding patients.

At those hearings, state hospital doctors testify from their medical records about diagnoses, risk assessments and evaluations. Logan didn’t address whether disclosures by witnesses posed the same risk to public safety identified with releasing state records.

Montwheeler wasn’t mentioned in the hearing. The state Justice Department last month ordered select medical records released after concluding the exceptional public interest in the state’s conduct outweighed his privacy. The order applied specifically to Montwheeler’s records and not all patient files held by the Security Review Board.

State Rep. Mitch Greenlick, D-Portland and chair of the Health Care Committee, said he had been briefed on the expanded confidentiality beforehand by an “OHA lobbyist.” He said Monday that he knew nothing about the Montwheeler case but “I do not believe the public has the right to anyone’s medical information.”

Greenlick, a health care professional, serves on the Oregon State Hospital Advisory Board.

Oregon Health Authorities didn’t respond to questions about who drafted the secrecy law or whether it obtained approval from the governor to do so. The governor’s office  didn’t respond to questions about whether Brown had approved her agency’s push for more secrecy. The governor has made government transparency a hallmark of her administration.

House Health Care Committee members voting to pass the legislation:

Rep. Mitch Greenlick, D-Portland; Rep. Cedric Hayden, R-Roseburg; Rep. Rob Nosse, D-Portland; Rep. Teresa Alonso Leon, D-Woodburn; Rep. Knute Buehler, R-Bend; Rep. Jodi Hack, R-Salem; Rep. Bill Kennemer, R-Oregon City; Rep. Alissa Keny-Guyer, D-Portland; Rep. Sheri Malstrom, D-Beaverton;

Les Zaitz: [email protected]; Twitter: @leszaitz.