Pushback Causes a City Attorney to Withdraw From Nomination to Oregon’s Public Records Advisory Council

Government transparency advocates rebelled against the governor’s choice.

On Oct. 25, Gov. Kate Brown announced dozens of appointments to state boards and commissions.

Most will sail through Nov. 16 confirmation hearings before the Oregon Senate Rules Committee without comment. But one of Brown’s nominees to the state’s Public Records Advisory Council withdrew Tuesday after heavy criticism.

THE NOMINEE

Jenifer Johnston, a senior deputy city attorney for the city of Portland.

THE POSITION

Johnston would have become one of 11 members of the Public Records Advisory Council, a panel lawmakers created in 2017. Mary Beth Herkert, who retired last year after 36 years in the state archivist’s office, was one of the architects of the council. Herkert spent years researching how other states fulfill the promise that records created or possessed by government belong to the people. “The idea was to have a committee that would understand what the laws are and fight for transparency,” Herkert says.

WHO OPPOSED HER?

League of Women Voters of Portland, Open Oregon, American Civil Liberties Union of Oregon, Society of Professional Journalists Greater Oregon Chapter. All signed letters to the Senate Rules Comittee.

WHY?

Herkert, a longtime board member of Open Oregon, a nonprofit that pushes for governments to make records public, says Portland City Hall’s hostility toward transparency dates at least back to when she began archival work for the state in the 1980s, long before Johnston joined the City Attorney’s Office. “It’s not good,” Herkert says.

And it hasn’t improved. In a joint letter to the Senate Rules Committee, opponents of Johnston’s appointment cited a number of specific examples in which the Multnomah County district attorney (who rules on appeals of city public records denials) and Multnomah County circuit judges (who rule on higher-level appeals) had chastised the city’s stance on open records.

In an Oct. 11 ruling on the city response to a request for the identities of police officers, a judge said the city intentionally ignored the intent of the request, saying “any good faith” response on the city’s part would have yielded records the city had denied.

“Johnston is the architect of a labyrinth intended to keep the City of Portland’s public records private,” says Alan Kessler, the lawyer who won that case and frequently battles the city for records.

“Under Jenifer Johnston’s tenure spearheading Portland’s records law implementation, our members have reported a disturbing increase in secrecy,” a letter from the Society of Professional Journalists added.

WHAT DOES JOHNSTON SAY?

“I was honored to be nominated,” Johnston says. “For the past seven years, I have been advising the largest municipality in Oregon to respond to over 30,000 public requests a year.”

Her boss, City Attorney Robert Taylor, says that in more than two decades at the city Johnston has demonstrated the skills the PRAC needs.

“Jenifer Johnston is an outstanding attorney and a dedicated public servant,” Taylor says. “She has handled some of the most difficult and high-profile legal issues for the city, and I appreciate her commitment to improving transparency. Jenifer’s experience with public records issues and her commitment to public service are unmatched.”

But after WW shared critics’ concerns with Johnston on Tuesday, Johnston decided to withdraw.

“Based on a letter I received today, I do not want my nomination to the Public Records Advisory Council to become a distraction from the good and necessary work of the public records advocate and the council,” she says. “Therefore, I plan to withdraw my nomination.”