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:
"The Oregon Association of Justice Attorneys (“OAJA”) has received the April 4, 2011 denial of its appeal for production of the Second Susan Wilson Report. It is OAJA’s 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 (“DOJ”), to sustain its action. Your April 4, 2011 letter, however, fails to provide any factual support for its basis for denial. It is OAJA’s 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 “trust us, this fits the exemptions.”
OAJA’s 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: “which one do you want?” 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 hearing.
OAJA 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 DOJ’s own doors? OAJA has to ask: does DOJ expect to build trust with OAJA when such actions occur?
This 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.
In addition, it appears that only one report was anticipated at the initiation of the investigation of the Torts and Employment Litigation Section (“TELS”), 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 members’ rights. Given that the Public Records Law operates on the theory that “sunlight is the best disinfectant,” it is not OAJA’s 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 legally entitled.
Notwithstanding DOJ’s 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.