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 (“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.”



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



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?



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 (“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.



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.