Memos From Oregon’s Records Czar Show the Governor’s Lawyer Tried to Quash Transparency

Those notes and emails indicate Misha Isaak repeatedly criticized Ginger McCall for backing legislation that would increase transparency but was at odds with “the governor’s interests.”

The state's first public records czar abruptly resigned Sept. 9, just 18 months after taking the position.

In a resignation letter to Gov. Kate Brown first reported by WW, Ginger McCall cited "abuse of authority" by Brown's general counsel, Misha Isaak, and direction from Brown's office that was "counter to the transparency and accountability mission that I was hired to advance."

McCall's resignation, and her account of how the governor's staff treated her, calls into question Brown's focus on improving government transparency.

Lee Van der Voo, a Portland author and journalist who served with McCall on the Public Records Advisory Council, says McCall's departure calls into question Brown's commitment to accountability. "Her resignation signals that significant transparency reforms are in danger of being yet another dog and pony show," Van der Voo says. "[Brown is] giving lip service to open government in Oregon but no real teeth."

McCall's frustration with the heavy hand of Brown's staff grew over the past 10 months. Befitting her office, she kept detailed notes of her interactions with those staffers and released them promptly in response to public records requests in the hours following her resignation.

Those notes and emails indicate Isaak repeatedly criticized McCall for backing legislation that would increase transparency but was at odds with "the governor's interests." (Brown appointed Isaak to the Oregon Court of Appeals on Aug. 30.)

In a memo describing a Jan. 15 meeting, McCall writes that Isaak cautioned her not to talk to news media about any conflicts with Brown's office. "This expectation of secrecy made me feel uncomfortable," McCall wrote in her memo. "It felt both unethical and dishonest."

Brown's spokesman, Chris Pair, initially released a statement pushing back hard against McCall. "The allegations made by Ms. McCall are untrue," Pair said Monday morning.

But late Monday afternoon, Brown released her own statement, striking a more contrite tone. She termed McCall's resignation "deeply regrettable."

"I agree with Ginger that the public records advocate should be truly independent," Brown said in a statement. "It appears this is a situation where staff were conflicted between the goals of serving the governor and promoting the cause of transparency. Let me be clear, there should be no conflict."

McCall came to Oregon from Washington, D.C., in the wake of the 2015 scandal that ended the political career of then-Gov. John Kitzhaber. Her assignment: to reform Oregon's moribund public records law, which says that, with some exceptions, all documents in the government's possession belong to Oregonians and are subject to their inspection.

For months prior to Kitzhaber's resignation early in his fourth term, his administration stonewalled media requests for documents relating to the influence peddling of his fiancée, then first lady Cylvia Hayes.

After then-Secretary of State Kate Brown replaced Kitzhaber, she pledged a new level of transparency and said she would streamline access to public documents.

"It was clear transparency was not a priority in the [Kitzhaber] administration," Brown told lawmakers in November 2015. "I changed that my first day on the job."

In 2017, after being elected to serve out the rest of Kitzhaber's term, Brown sponsored a bill that created the office of public records advocate, who would mediate disputes over public records, train public officials in complying with the law, and lead the new Public Records Advisory Council.

In January 2018, Brown hired McCall, a 2009 graduate of Cornell Law School, who had worked for nearly a decade on federal Freedom of Information Act issues at the Electronic Privacy Information Center and the U.S. Department of Labor.

McCall said she was thrilled: "I'm so excited I got this job," she told The Oregonian last year. "It is literally my dream job."

However, emails, memos and correspondence with Brown's team show the dream didn't last long. McCall found she had run afoul of Isaak on at least three key points:

• Isaak chastised McCall in a Jan. 7 meeting, according to a memo she wrote to record the exchange, for publicly releasing a November 2018 report by her office that was critical of state and local governments' compliance with the Oregon Public Records Law without first clearing the report with Brown's office.

That report made clear that despite Brown's stated interest in transparency, state and local governments were woefully noncompliant with public records law. Drawing attention to that noncompliance had the potential to embarrass the governor.

• Isaak also criticized McCall, her memo shows, for proposing 2019 legislation aimed at fostering greater transparency among state agencies.

Emails show the Oregon Department of Human Services, which oversees the state's troubled child welfare system, pushed back against McCall and pointed to allegedly higher costs of compliance as a way to slow the bill. (It eventually died.) McCall's memo says Isaak also complained about a bill she pushed that would penalize agencies for failure to comply with public records requests. That bill passed.

• After McCall found lawmakers willing to introduce her pro-transparency bills, Isaak allegedly castigated her in a Jan. 15, 2019, meeting in which he asserted he was her supervisor—news to her—and that she should have "considered the governor's' interests" before seeking any legislation.

"[Isaak] also stated that in the future I should not prioritize creating consensus policy proposals over the political considerations of the Governor's office," McCall wrote.

McCall's pursuit of transparency came to a head during budget season. Last December, Brown's initial budget requested $440,000 in additional funding for McCall's office for two additional staff members.

But in May, the Department of Administrative Services, which reports to Brown, recommended that instead of increasing McCall's budget, lawmakers should cut it by more than 10 percent. (Lawmakers ultimately approved an increase, although no additional staff).

On June 6, McCall met with Emily Matasar, a lawyer in Brown's office who specializes in public records and reported to Isaak.

In a memo summarizing that meeting, McCall says Matasar scolded her for seeking to have her agency's budget restored and for continuing to pursue transparency legislation that could embarrass Brown. When McCall pushed back, Matasar suggested another meeting with Isaak.

"I told her that I was not comfortable meeting with Misha because he had treated me disrespectfully and in a manner that I found sexist and demeaning in our prior [January] meeting when he had lectured me about how I 'knew nothing' about government and should 'be less ambitious,'" McCall wrote in her memo.

Records show that by late June, McCall was sufficiently frustrated to seek legal advice on the matter of her agency's independence.

In a draft opinion, the Oregon Department of Justice found "the Legislature intended the [public records advocate] have a greater degree of independence from the Governor's Office than do most department heads."

The DOJ also found "no support in legislative history" that McCall should report to Isaak or that Brown should be allowed to "preview or edit" McCall's reports.

Jeff Merrick, a Portland lawyer, says there's no question he and others who pushed for the creation of a public records advocate always intended the job to be free from political interference. "That office should absolutely be independent—100 percent," he says.

But as the summer concluded, McCall determined she wouldn't be allowed to operate as she'd been led to believe.

"When I accepted this job, it was with the understanding that the office of the public records advocate was to operate with a high degree of independence," McCall wrote in her resignation letter. "Meetings with the Governor's General Counsel and staff have made it clear, however, that the Governor's staff do not share that view."

Merrick says he's disappointed Brown's office failed McCall, whom he compares to another lawyer-whistleblower. "I'm proud of Ginger for resigning," he says. "It's like John Dean standing up against the [Nixon] White House."

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