A curtain of secrecy has been added to the tools of government in Ontario. City officials say the public has no right to ask city councilors for their records about public affairs. That’s a terrible stance for the public, government and city councilors themselves.
In Malheur County and across the state, an essential way for citizens to keep an eye on government is to see government records. From budgets to meeting minutes to expense records, public records are invaluable to inform people and insure against fraud and corruption. The record in Oregon is replete of instances where access to government files, by citizens and by reporters, has unearthed wrong and even illegal conduct.
Oregon law states it pretty directly: “Every person has a right to inspect any public record of any public body in this state.”
That law has come in for rough handling by Ontario city officials. This was prompted by requests from the Malheur Enterprise to Marty Justus, an Ontario city councilor, for emails and other records. We very carefully specified we sought records only relating to his function as a public official. We had no interest, indeed no right, to anything from his personal or business life. The records were needed to sort out how a $25,000 cash gift to the city was handled. He ultimately volunteered the records – but only after some remarkable lawyering that leaves public access in doubt.
Justus turned to his attorney, Max Taggart of Ontario, for what to tell the Enterprise. Taggart advised Justus he could essentially tell the Enterprise to go pound sand. He said any records held by Justus in his role as a city councilor simply weren’t public records under the law.
Ontario city officials backed up Taggart. City Attorney Larry Sullivan agreed with Taggart’s read of the law. The implications are remarkable.
If the city attorney’s view holds, vast swaths of government conduct are off limits to the public. Not a single city councilor in Oregon – not one – would have to yield a single public document. They could have emails and letters and more related to, say, giving a government grant to a buddy, and the public could be kept away by that curtain of secrecy. But the implications are broader yet. Taking the city’s view, not one school board member – elected by the citizenry – would have any duty to yield records compiled in service to the public. The list of those suddenly exempt from public scrutiny would go on – extending to hundreds of elected board members of fire districts, water districts, even cemetery districts who would be immune from yielding records.
Ontario city officials maintain that there would be access – if a city councilor communicated with City Hall. That leaves a huge gap for those councilors and other elected officials who regularly communicate with constituents and each other without looping in City Hall.
Ontario was given ample opportunity by the Enterprise to answer simply whether it was now city policy that city councilors were immune from the public records law. It ducked. Instead, the city said in a statement that City Hall itself would comply with public records requests but only “encourage” city councilors to do so as well.
That puts city officials out on a legal limb. The League of Oregon Cities, for instance, could think of not a single court case in Oregon where a city councilor was excused from giving the public records about government conduct. The Oregon School Boards Association, representing hundreds of school board members, said flatly it expects those board members to obey the law. Ginger McCall, the state’s public records advocate, didn’t equivocate on the matter. She was astonished at Ontario’s position and said there was no question city councilors are subject to the law.
Taggart and the city rely on their own technical readings of the law. Lawyers, of course, fill courthouses with cases turning on the parsing of language. Perhaps a lawsuit would come along settling the matter to their satisfaction. One option otherwise is to fix state law so there is no question whatever that every elected official in Oregon is answerable to the people. Meantime, the Ontario City Council could act to declare its members subject to the law. If it doesn’t, citizens should waste little time telling the council: Tear down this curtain. – LZ