Letter from the Editor: Pandemic underscores need for government transparency

Oregon started out, back in 1973, with a strong public records law.

The law essentially says that any writing “that contains information relating to the conduct of the public’s business” should be accessible to “any person,” unless specifically exempted from disclosure.

Over the years, however, many exemptions have been added to the law -- there are more than 600 at last count. And, worse, many secrecy provisions are written into other statutes.

Right now, legislators have an opportunity to make government more transparent during a pandemic. Legislators are considering changes to a statute that requires the state to keep confidential any information obtained during a public health investigation.

During the COVID-19 pandemic, journalists have repeatedly found this statute a barrier to fully informing the public.

For instance, The Oregonian/OregonLive requested coronavirus cases by ZIP code, in order to inform the public where outbreaks were occurring.

At first, we were told no, but then the state relented after we shared examples of other states releasing the data.

The state also cited the law in refusing to disclose, by county, the number of people infected with COVID-19 by race and ethnicity.

In another case, Brad Schmidt, who has led much of the newsroom’s coronavirus coverage for the past year, was analyzing a chart released by the state. He requested the data the chart was based on but was denied.

I do understand the original thinking behind the law. No one wants details of his or her illness, whether food poisoning or a sexually transmitted disease, to be made public.

In fact, Senate Bill 719 would protect individuals’ privacy. But it would allow aggregated, anonymized statistics to be disclosed.

To be fair, the Oregon Health Authority has a robust dashboard of data about COVID-19. But the agency has also repeatedly chosen to withhold information.

In some cases, it reversed course. Most recently, The Oregonian/OregonLive requested information about so-called “breakthrough cases,” coronavirus illnesses in people who already had been fully vaccinated. The state at first denied our request but has since released the number.

Other states, and even some Oregon counties, do release information on those cases, which could provide important context about the role of virus variants.

The COVID Tracking Project, led by The Atlantic and powered largely by volunteers, amassed a year’s worth of publicly available data. The project rated Oregon poorly in some areas. Oregon did not, for instance: provide a breakdown of confirmed vs. probable coronavirus cases, regularly provide total tests in terms of unique people tested, report race or ethnicity data for tests. Regarding long-term care facilities, the state does not break out staff vs. resident cases, neither by facility nor statewide.

Legislators should look to the solid track record of Schmidt’s reporting team during this pandemic and amend the law to allow health investigators to release the data.

“Absent a reason not to do it, we should be doing it,” Sen. Michael Dembrow, D-Portland, told reporter Fedor Zarkhin. Dembrow sponsored the bill with Rep. Karin Power, D-Milwaukie.

The Legislature is also considering two other laws with transparency implications. One proposal, according to the summary, “prohibits law enforcement agency from releasing booking photo except in specified circumstances.”

Booking photos, commonly called mugshots, have been basic public records for decades. This proposed law would allow release to the public only “if the law enforcement agency determines that there is a law enforcement purpose for the release,” including asking for help finding a fugitive or suspects.

It’s been my experience that whenever a public body is given discretion over release of information far less information ultimately gets released. In other words, the default becomes a denial.

The Oregonian/OregonLive no longer routinely publishes mugshots of crime suspects but I strongly believe they should remain public records. A mugshot tells you much more than a name. The photo might inform you of the arrest of someone you’ve seen in your neighborhood or at the grocery store. Police may not suspect additional victims, but additional victims are more likely to speak up if they see the person who victimized them has been arrested.

Photos also help provide clarity when people have a common name.

Another legislative change that should be rejected is an effort to keep secret forever any material protected under attorney-client privilege.

The Oregon Court of Appeals last year affirmed that the privilege expires after 25 years in relation to public records. The city of Portland is appealing to the Oregon Supreme Court.

The use of attorneys to investigate potential wrongdoing is common practice among public bodies. After 25 years, the public deserves the right to a full understanding of historical decisions, many of which likely have lasting effects.

Certainly, Oregon has made some improvements in the past few years. The office of Public Records Advocate was created and can be a low-cost way to resolve disputes between records requesters and state agencies. We also now have a Sunshine Committee, made up of legislators and others, charged with reviewing exemptions.

But as long as we keep adding new secrecy provisions, the Sunshine Committee will never catch up.

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