Governor considers limiting public records access to some information about state employees

Gov. Kate Brown last year arranged for the state Psychiatric Security Review Board to drop its lawsuit against the weekly Malheur Enterprise and turn over records to the newspaper. (Enterprise file photo)

Gov. Kate Brown has directed her staff to consider tightening up Oregon’s public records law to limit disclosure of information about state workers and members of the public.

Brown’s administration through the state Department of Administrative Services also ordered state agencies to refer any requests for public government databases or other large requests to a staff lawyer in the governor’s office. Typically, agencies handle such requests themselves.

By letter dated June 20, Brown’s chief of staff, Nik Blosser, told the director of the Department of Administrative Services to form a work group to study the public records law.

“As we’ve seen recently with Cambridge Analytica and other uses of large data sets, often skimmed from social media and other publicly available sources, technology and the sophistication of data science has increased substantially,” he wrote to Katy Coba, the DAS director and state’s chief operating officer. “Our interpretation of ‘information of a personal nature’ needs to evolve accordingly.”

In a separate email, Coba directed all agencies to consult with the governor’s accountability attorney about requests, adding a new layer of review for anyone seeking access to government files.

“If your agency receives ANY records requests for a large dataset about individuals who make contact with the State (including employees), please contact Emily Matasar… BEFORE responding,” Coba wrote. “Please make sure you are coordinating your response.”

DOCUMENTS: Read Blosser’s letter here and Coba’s email here.

Matasar led the governor’s effort last year to get legislation creating the state’s new Public Records Advisory Council, which works with a new public records advocate and the state archivist to make recommendations about keeping government records accessible to the public.

Chris Pair, Brown’s spokesman, said the decision to form a working group and review requests in the governor’s office, too, was triggered by a recent public records order from the office of Attorney General Ellen Rosenblum. That order reversed course from longstanding practice to release birth dates of state workers as part of records requests.

In one particular request from a conservative think tank, her office denied the release of birth dates, which Pair said left questions about how to handle similar requests in the future.

“The attorney general’s ruling has raised the issue,” he said. “And we have to decide how to comply.”

Pair said Blosser heard about the issue from Coba. She said Blosser came to her because he “had heard from some folks with concerns about the information that had been released to The Oregonian, specifically around birth month and year.”

Coba said she didn’t know any details of those conversations or who was involved. Pair said he would talk with Blosser to clarify who had expressed concerns and if those came before or during conversations with Coba. The Enterprise and The Oregonian also have filed records requests for related information.

The Enterprise also reached out to Rosenblum, who created a sunshine committee to review the necessity for hundreds of existing exemptions to public records law. Her spokesperson has not yet returned an interview request.

Pair said if the new working group requested changes to an exemption, the suggestion would go before the Sunshine Committee for review.

A local professional organization for journalists questioned the creation of a new working group because the Oregon Legislature created the Sunshine Committee to handle these types of questions last year and the same topic is currently under its consideration.

“We at SPJ worked very hard last year to ensure that the job of reviewing public records laws exemptions, and potentially rewriting them be done in a very transparent way,” said Nick Budnick, a Portland reporter who chairs the open government committee of the Society of Professional Journalists’ Oregon Territory Chapter. “That bill, HB 2101, was supported by Gov. Kate Brown. … It seems odd to SPJ that this process is being set up outside of the Sunshine Committee and it seems to risk undermining it.”

The recent letter from Blosser references two public records requests this year.

“Yesterday, I learned that the Department of Administrative Services released to the Oregonian a database of information containing state employees’ names, months and years of birth, and demographic identifications, among other information, earlier this year,” Blosser wrote in the letter. “This was based on the advice of an Oregon Department of Justice lawyer that such information is not exempt from disclosure.”

More recently, Blosser noted that the Freedom Foundation, a conservative nonprofit think tank from Washington state, asked the state Department of Human Services for the complete dates of birth and union payroll deductions for certain child care providers, home care workers, and personal support workers. Those professionals are deemed in some circumstances to be public employees.

The request was denied after Rosenblum said the group should not have dates of birth as a tool to identify home addresses, which are exempt from public release.

“One of the requirements is that the requester demonstrate by clear and convincing evidence that the public interest requires disclosure in the particular instance,” wrote Deputy Attorney General Frederick Boss in the May 21 order. “On this record, we cannot find by clear and convincing interest that disclosure to you serves the public interest.”

Blosser said releasing the names, titles and salaries of public employees is “clearly not exempt” but he questioned the release of partial birth dates and demographic information, like race and age. He suggested that information should only be released if names and other identifiers are first stripped from the information.

“Releasing complete data of this sort allows sophisticated data manipulators to identify individuals for purposes that are clearly illegal: personal address lookup, identity theft, harassment, etc.” Blosser wrote. “Whatever public interest may be served by releasing such data, it is clearly outweighed by the individual interest in nondisclosure.”

Budnick noted that such information has been public in Oregon for decades. He noted it is critical, for example, to researching wage disparities by age, race and gender as well as backgrounding state leaders or studying the health of the state’s public retirement system. Birth dates, even partial ones, often are used to confirm identities and to prevent confusing two people with the same name.

That kind of information is different from the data collected by Cambridge Analytica from Facebook to build voter profiles for political campaigns, said Adam Marshall, the litigation attorney for the national Reporters Committee for Freedom of the Press. The group’s use of personal data to craft and target political ads sparked hearings before U.S. Congress. Cambridge Analytica collected detailed information from Facebook about people’s relationships to others as well as their posting habits to craft detailed individual profiles.

Neither of the requests referenced by Blosser sought that kind of information.

“There is a world of different between a public employee in a public agency doing work on the public’s behalf and a private individual interacting with family and friends,” Marshall said. “Certainly when you go to work for the government, you don’t give up all of your privacy, but you do have a significantly diminished expectation of privacy because you are doing work on behalf of the public.”

Budnick said Blosser’s mention of Cambridge Analytica seemed designed to raise fears about privacy.

“We are sympathetic to those fears, but trying to put the genie back in the bottle, with everyone’s public information already out there, seems unlikely to happen through this effort,” he said. “We have consulted with longtime journalists and are unaware of any instance of identity theft based on the release of information like this.”

Coba said the state had heard about “a couple cases” where such public data was misused, but emphasized they haven’t been verified. She said one woman who was a domestic violence survivor worried that her attacker could request information that comprise her privacy and safety, but Coba didn’t know if the concern was theoretical or based on an actual incident.

She said there is not yet a timeline for establishing the working group.

The arguments made by Blosser echo heated debate in Washington state last year.

After a judge ruled that the Legislature was not exempt from public records law as it had long claimed, several measures were proposed to limit access again. Some bills, also sought to block the release of birth dates.

(DISCLOSURE: Malheur Enterprise Editor and Publisher Les Zaitz was appointed to the Public Records Council by the governor.)

Reporter Jayme Fraser: [email protected] or 541-473-3377