Gov. Kate Brown’s decision to hire Oregon’s first public records advocate in January 2018 was a promising step toward addressing deficiencies with how agencies, at both the state and local level, comply with the state’s public records law.
It’s troubling, though, that the first person to have the job, Ginger McCall, on Monday announced her resignation, effective Oct. 11. McCall cited “meaningful pressure from the Governor’s General Counsel to represent the Governor’s Office’s interests on the Public Records Advisory Council, even when those interests conflict with the will of the Council and the mandate of the Office of the Public Records Advocate.”
McCall said that during a January 2019 meeting with Misha Isaak, the governor’s general counsel, Isaak told McCall she should be “less ambitious.”
Worse yet, considering the ostensible purpose of McCall’s position is to ensure that the public — which is to say, each of us — has access to records to which we are legally entitled, McCall said she felt that Isaak had implied she should not reveal, in particular to journalists, that she was expected to parrot the governor’s office script even if it conflicted with her beliefs.
In other words, the state official supposedly committed to transparency says she was told to drape an opaque cloak over crucial aspects of her job.
Brown’s communications director, Chris Pair, disputes McCall’s claims that she was pressured.
Pair said the Legislature, in creating the Office of the Public Records Advocate, decided that the position would be under the governor’s authority.
This might well be part of the problem here.
If McCall’s successor is to truly serve as an advocate for the public, rather than a mouthpiece for the government, then he or she needs to be insulated from influence, whether direct or implied, from state officials.
That’s because there is an inherent, and unfortunate, tension between government officials who hold these records, and members of the public, including journalists, who want to have a look at those records as the law prescribes.
McCall cited shortcomings in how the law is applied in November 2018 with her first public report about transparency in Oregon. She noted, among other things, that the fees agencies charge to supply public records are “highly discretionary” and “a perennial source of animosity, confusion, and frustration for public bodies and requesters alike.”
McCall also pointed out that the law has “little accountability” for agencies that fail to comply with records requests.
A potential model for Oregon’s public records advocate is the position that was once relatively common in America’s larger newspapers but today, sadly, is rare — an employee known as either the public editor or the ombudsman.
The basic idea was that the public editor would hold the newspaper accountable for errors but also, and more importantly, to examine, with the eye of a journalist, potential lapses in ethical standards.
This concept was credible, of course, only when the newspaper published the public editor’s findings, and opinions, without alteration or influence.
Newspapers are private businesses. They are not subject to the public records law. Yet they seem to value the independence of an ombudsman more than Oregon state officials do.
Gov. Brown said Monday that she agrees with McCall that the records advocate “should be truly independent.” Brown also said she planned to meet with McCall to discuss ways to “create a truly independent position.”
That shouldn’t be difficult. The governor should start by making sure her next general counsel — Brown appointed Isaak to the Oregon Court of Appeals, effective Nov. 1 — supports the independence of the public records advocate rather than cajoles that person to defer to the governor’s office.