Under Attorney General John Kroger, there are few dull moments at Oregon's Department of Justice.
Recently, a lawyer for the embattled former Oregon Department of Energy director Mark Long sued Kroger for withholding public records—a somewhat ironic claim given that Kroger has made greater transparency of government records a pillar of his administration. Given all the back-and-forth between Long's legal team and DOJ, it would be naive not to suspect there were some tactical decisions involved in that lawsuit, in addition to a desire for records.
But now another interest is stepping forward and accusing Kroger and his subordinates of sitting on records. This time, the aggrieved party is on Kroger's staff—he is Marc Abrams, a senior assistant attorney general (and former two-term Portland School Board member), who is president of the union that represents state Justice Department lawyers.
As union chief, Abrams has been trying to get the department to cough up some documents relating to a personnel matter involving one of his bargaining unit's lawyers. DOJ decline to provide the requested records.
"We have reviewed the report you requested," wrote Deputy AG Mary Williams to Abrams on April 4. "Based on that review, we have determined that the report you have requested is protected by the attorney-client privilege. It is therefore exempt from disclosure."
That response didn't sit well with Abrams, who responded as follows to Williams on April 11:
Oregon Association of Justice Attorneys (âOAJAâ) has received the April 4, 2011
denial of its appeal for production of the Second Susan Wilson Report. It is OAJAâs belief that your communication fails to meet the requirements of the Public Records Law." "Specifically,
in making this appeal, OAJA noted that the burden is on the agency, in this
case the Department of Justice (âDOJâ), to sustain its action. Your April 4, 2011 letter, however,
fails to provide any factual support
for its basis for denial. It is
OAJAâs position that, at the very least, inherent in the burden DOJ must meet
is the need to disclose such facts underlying the decision as would satisfy a
fact-finding neutral of the correctness of that decision. DOJ did not do so. DOJ did not disclose what potential or threatened litigation
was at issue. DOJ did not disclose
the potential initiator of that litigation. DOJ has not demonstrated why
litigation is, in fact, likely. DOJ
has not provided any basis for its broad assertion that the Second Susan Wilson
Report fails to meet the criteria of ORS 192.502(9)(b). While OAJA has the highest regard for
Denise Fjordbeck, who reviewed this appeal, the Association has no way of
knowing whether Ms. Fjordbeck was given the complete factual background. ORS 192.450 and 192.502 require more
than âtrust us, this fits the exemptions.â
concerns are heightened by the facts preceding this denial. DOJ personnel, including one or more of
Dan Cooper, Rebecca Stutzman, and Senior AAG Donna Bennett, made a deliberate
and conscious choice, when OAJA requested the
Susan Wilson Report, not to disclose there was a second report or to ask:
âwhich one do you want?â Were a
lawyer in discovery to engage in such obfuscation by omission - knowing there
were two reports and not correcting opposing counsel, then producing the report
of their choice - one can imagine how a judge might react at the sanction
has to ask whether the Attorney General, the Deputy Attorney General and the Transparency
Counsel endorse such actions, or whether they would endorse such actions if
they occurred in a different agency.
OAJA has to ask: is this how DOJ intends to operate? Does transparency stop at DOJâs own
doors? OAJA has to ask: does DOJ
expect to build trust with OAJA when such actions occur?
obfuscation is even more peculiar given that DOJ did produce the First Susan Wilson Report, one that explicitly
references AAG Billie Eidson and a potential BOLI complaint. It would appear odd, if not anomalous,
to produce the first report while withholding the second. Given the contents of the first report,
this leads OAJA to question what is being withheld and why. It may also constitute waiver of the
privilege not to disclose.
addition, it appears that only one report was anticipated at the initiation of
the investigation of the Torts and Employment Litigation Section (âTELSâ), and
that, at some undisclosed point, a second report was ordered. If so, the genesis arises from
disclosures by OAJA members in TELS who were not truthfully informed of the
changed nature of the process, nor given a chance (with one negotiated
exception) to request OAJA representation. OAJA considers this a breach of its membersâ rights. Given that the Public Records Law
operates on the theory that âsunlight is the best disinfectant,â it is not
OAJAâs burden to explain why it seeks the Second Susan Wilson Report. Regardless, it should be clear: OAJA
has a right to know how any of its members might be implicated in the asserted
potential litigation, and to provide them with the assistance to which they are
DOJâs decision, OAJA urges you to reconsider in light of the actions of DOJ
staff and the in hope that DOJ desires a more open relationship with OAJA. However, if DOJ is unwilling to do so,
OAJA will explore its legal options."
DOJ spokesman Tony Green declined to comment on the exchange.