Gov. Kate Brown on Tuesday 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)
UPDATE: Full text of governor's statement added below.
Under pressure from Gov. Kate Brown, a state agency Tuesday dropped its lawsuit against the Malheur Enterprise and will turn over public records concerning accused murderer Anthony W. Montwheeler.
The contested records were to be released late Tuesday.
The governor’s extraordinary intercession came a day after the weekly newspaper started a $20,000 legal fund campaign to defend itself against the suit brought last week by the state Psychiatric Security Review Board. The state board wanted to keep the public from seeing government records about the state’s history with Montwheeler.
The state agency for 20 years had jurisdiction over Montwheeler, 49, after he was declared guilty except insane in the 1996 kidnapping of his wife and son. In December, it found that Montwheeler had been faking mental illness to avoid prison and ordered him discharged. The next month, he was charged in Malheur County with aggravated murder, kidnapping and assault for a Jan. 9 episode.
He is accused of kidnapping and stabbing to death his ex-wife, Annita Harmon, and killing a Vale man, David Bates, and injuring his wife Jessica when he collided with their vehicle while he was eluding police.
“Oregonians deserve a government that is transparent to the fullest extent permitted by law,” Brown said in a statement Tuesday. “No one requesting public records should be at risk of being sued by a state agency. I believe that the public is best served by bringing this matter to an end now rather than afer a lengthy and costly litigation.”
While the governor appoints the 10 members of the Security Review Board, she has no authority over its actions and couldn’t legally force it to end the suit.
“We appreciate the governor sparing the taxpayers and our supporters a lengthy, costly legal battle,” said Les Zaitz, Enterprise publisher. “This has always been a matter of holding the state accountable, not aimlessly wandering through private medical files.”
The Enterprise sought records entered as exhibits at Montwheeler’s open hearing before the Security Review Board. The board oversees about 500 people who successfully asserted the insanity defense against criminal charges. Individuals remain under the board’s control until their term expires, they are judged no longer mentally ill, or they are no longer a threat.
The public documents requested by the newspaper included risk assessments by the Oregon State Hospital, where Montwheeler has been confined off and on over 20 years. The newspaper also sought assessments and reviews by the hospital’s professional staff.
The Security Review Board claimed the records couldn’t be released, but Attorney General Ellen Rosenblum’s office on March 15 said otherwise. Rosenblum’s office ordered the records be turned over to the Enterprise, allowing for limited redactions.
Instead of complying, the Security Review Board hired outside attorneys to defy the order. Under the Oregon Public Records Law, the Security Review Board had to sue the requester – the Enterprise – and not the attorney general.
After the suit was file, Enterprise Publisher Les Zaitz noted that the Vale-based newspaper is a small, family-run enterprise.
“We can’t hope to match the Security Review Board’s ability to tap its taxpayer-provided budget,” Zaitz said. “We have only sought the truth from the Security Review Board, and our request for a handful of records for was meant to serve the public interest. We will not be steamrolled by a state agency. We will find a way to defend ourselves and serve that public interest.”
On Monday, the newspaper opened an effort to raise $20,000 for a legal defense fund. The newspaper retained Portland attorney Duane Bosworth of Davis Wright Tremaine to answer the state’s lawsuit.
Pledges started rolling in immediately, ranging from a $10 commitment from a Seattle man to $1,000 from a Salem businessman.
“The state of Oregon should not be trying to financially squeeze you for doing your job,” one supporter wrote in a social media post. “Freedom of the press implies not using state resources to bankrupt you for researching a legitimate news story.”
In its 11-page complaint filed in Marion County Circuit Court last Wednesday, the Security Review Board asserted that releasing the records “immediately and unreasonably will invade the privacy of Anthony Montwheeler as a patient of the state hospital.”
The agency said in its complaint that state law prohibits disclosure of records the Security Review Board received from the state hospital, the doctor-patient privilege applies, and releasing the records would invade Montwheeler’s privacy.
The Security Review Board said there was no “clear and convincing evidence” that disclosure of Montwheeler’s medical records was justified.
Rosenblum’s office had ruled otherwise. Her deputy, Fred Boss, said in a March 21 letter that the Enterprise “has shown by clear and convincing evidence that the public interest requires disclosure.”
The letter continued, “Mr. Montwheeler is accused of committing serious crimes – including killing two people, and seriously injuring a third – a few short weeks after his discharge. Under the circumstances, there is a strong public interest in understanding and evaluating the bases for PSRB’s release decision.”
Boss also said that “Montwheeler’s testimony that he was under PSRB’s jurisdiction for nearly 20 years, despite never suffering from actual mental disease, in order to enjoy perceived benefits of that status, raises an issue of significant public interest.”
Kate Lieber, Security Review Board member, said at the December hearing after the decision was made to release Montwheeler: “I’m assuming somebody in the system might do a forensic look at this and figure out what the hell happened.”
Officials at the Security Review Board and Oregon State Hospital have declined to say whether such a review was initiated.
Les Zaitz: email@example.com
Gov. Kate Brown statement:
“Due to the extraordinary circumstances of the Tony Montwheeler case, I have asked the PSRB to dismiss its public records lawsuit, to fully comply with the Attorney General’s order, and to release the public records requested by the Malheur County Enterprise. This PSRB has agreed to take these actions immediately.
Oregonians deserve a government that is transparent to the fullest extent permitted by law. No one requesting public records should be at risk of being sued by a state agency. I believe the public is best served by bringing this matter to an end now, rather than after a lengthy and costly litigation.
This issue highlights improvements that need to be made to the public records law when it comes to getting a legal determination from a court when the law is ambiguous. An agency that has legal concerns about an Attorney General’s Order is currently forced under state law to sue the requestor. This plain wrong. I have directed my staff to explore solutions that would provide for swift judicial resolution without filing a lawsuit against a requester.