Oregon Agency Sued After Refusing to Release Upcoming Legislative Bills

Sep 11, 2018

Since 2010, one Portland attorney has used public records requests to give his clients a glimpse of upcoming bills in the Oregon Legislature. But this year, lawyer Greg Chaimov says he got something new when he filed his request: A denial.

So Chaimov is suing. In a lawsuit filed against the state’s Department of Administrative Services on September 5, the lawyer accuses the state of improperly turning down his public records request for nascent legislative concepts, and asks a judge to force the state’s hand.

At issue are obscure forms most Oregonians won’t know or care much about. Prior to sessions of the Oregon Legislature, state agencies under the purview of Gov. Kate Brown submit ideas for potential bills, and an accompanying explanation of what problems they’d like to solve with those bills.

These forms are useful to Chaimov, who formerly served as the Legislature’s lead attorney and these days works for Portland firm Davis Wright Tremaine. In years past, the firm has shared the prospective bills with “friends and clients” and begun to work up opposition to some of them, according to John DiLorenzo, a colleague of Chaimov who’s representing him in the lawsuit.

“They’re always the first bills the legislature hears,” DiLorenzo said. “You can be assured those will be the bills the Legislature will be hearing as soon as the Legislature convenes.”

In advance of the 2019 legislative session — which is expected to take up weighty issues like property tax reform and carbon pricing — 234 such ideas have been forwarded to the state’s Legislative Counsel, who will draft bills based on the proposal. Chaimov filed a request for the documents in July, but was soon denied.

DAS told the attorney the concepts are exempt from release because they are subject to attorney-client privilege. The agency said the ideas won’t be released until they’re drafted as bills, which is expected by November 30.

Chaimov appealed to the Oregon Department of Justice, arguing that the attorney-client privilege exemption to Oregon’s open records law doesn’t apply in this case. The DOJ denied the appeal, noting that “unlike forms used in prior years,” the documents Chaimov requested did not have a header reading: “Confidential and Attorney-Client Privileged.”

So Chaimov is suing in Marion County Court. He argues that the relationship between the Office of Legislative Counsel and state agencies isn’t privileged, and that only the Attorney General’s Office can give agencies confidential legal advice.

“Assume for the sake of argument there was an attorney-client privilege — why not waive it?” DiLorenzo said. “What’s the big secret?”

Chaimov might have company in his lawsuit. On Monday morning, the Independent Party of Oregon issued a press release saying it was weighing whether to jump into the lawsuit with Chaimov. The release noted that, under the current schedule, ideas for new bills won’t be made public until well after the November 4 election, in which Brown faces a potentially bruising re-election fight against Republican state Rep. Knute Buehler.

"We are concerned that this dramatic change in policy is primarily a political decision to prevent public disclosure of legislative concepts that could be damaging to the governor's re-election effort," Rob Harris, co-chair of the Independent Party of Oregon, said in a statement. "Especially during an election, there is a strong public interest in disclosure of the administration's legislative priorities.”

In response, the state says nothing has changed, and Brown’s office flatly denies that politics are at play.

“We have instructed agencies similarly in the past,” said DAS spokeswoman Elizabeth Craig. “As with any public records request, we treat them individually and make decisions about potential exemptions on a case-by-case basis.”

Asked how Chaimov’s most recent request merited different treatment than past requests, Craig said that wasn't necessarily the case. She forwarded a 2016 email sent by a DAS employee saying the agency that year had turned down a records request for legislative concepts for the same reasons. 

"For the sake of consistency, we suggest these same considerations be applied to any request you receive for" legislative concepts, the email read. 

DiLorenzo sent along emails showing Chaimov's records request to DAS for legislative concepts the same year was honored. 

In a statement, Brown’s office said the denial by DAS “is to bring their practices in line with the legislature, which also asserts privilege until drafting is completed. DAS’ decision to do so was in no way influenced by the election.”

DiLorenzo said Monday he’ll ask a judge to expedite the case, and that he hopes to convince the court to force the records’ release by October. Records from 2016 show Chaimov did not file his request for legislative concepts until October of that year, and didn't receive records until January 2017. 

“The governor’s office asked me, ‘Why can’t you just wait until December?'” he said. “I said, ‘You’re depriving us of three months of gear-up time to get together to oppose things.'”

Copyright 2018 Oregon Public Broadcasting.