public records fight moves to level 2

9/23/2009: In the RG David Steves has a story about the irony of the DOJ' efforts to keep the Manual off the net. They now say they've been planning to post it all along.

9/17/2009: Carl Malamud of has now sent Oregon Attorney General Kroger this letter, stating that he has posted the Oregon Public Records manual online for free access. He also tells Kroger he will soon do the same for several of the other law manuals that the DOJ trys to sell, including the Administrative Law Manual, Public Contracts Manual, and Core Mediation Training Manual. Malamud's letter to Kroger says:
... I’m sure you will agree that “the law, which, binding every citizen, is free for publication to all, whether it is a declaration of unwritten law, or an interpretation of a constitution or statute.” Banks v. Manchester, 128 U.S. 244, 253 (1888).
Malamud's work is described in this NY Times story. His efforts to "make public law public" are funded by the Omidyar Foundation (ebay) and endorsed by Larry Lessig - one of Kroger's old law professors at Harvard. The PR Board of Directors includes Google's chief economist Hal Varian. Malamud testified at the 2008 Oregon Legislative hearings on open access to ORS. These are serious people - if they weren't, could they afford to boast that they are endorsed by the "Great Seal"?

So, now that the DOJ's official interpretation of Oregon's public records law is finally public, we can move on to persuading AG Kroger to interpret that law in a way that is consistent with intent of that law, and the public interest.

For example, one Oregon DOJ ruling under Kroger allows state board members to use private email addresses for public business. That's illegal in Alaska, as Sarah Palin learned the hard way. But it's perfectly OK with John Kroger. Or so we think. Actually, the DOJ is claiming that his opinion on that question is exempt from public disclosure! This is so absurd that I don't expect you to believe me. So, send DOJ spokesman Tony Green, at, a public records request for the ruling on this. Email me the response, and I'll post it.

Another issue is the cost of getting documents. Oregon law allows fee waivers for issues of public interest. But Kroger's DOJ will not order the fee waivers even when those records result in an official state audit which concludes with a finding of expense account abuse.

A third is what happens when a citizen tries to get documents on malfeasance within the AG's own office. A few days after AG spokesman Tony Green dumped every bit of documentation from the investigation of Portland Mayor Sam Adams's sex life, we tried to get the same for an investigation the DOJ had just concluded of their own Special Assistant Attorney's General, Melinda Grier. The investigation involved misrepresentations by Ms Grier to the United States Department of Justice's Civil Rights Division, in the course of an official investigation. Ms Grier is the wife of DOJ Solicitor General Jerry Lidz, and her statements to the Civil Rights Division are currently under investigation by the Oregon State Bar. Interesting?

Oregon Associate AG David Leith responded:
Professor Harbaugh,

... With respect to your public records request, we estimate the reasonable
cost of the response -- primarily the cost to condense the factual
component of our investigation, including the attorney time to perform
that task -- is $2500. If the actual cost is less, we will refund the
balance. If it is more, we will require payment of that additional
amount. We will proceed with our response if and when you pay the
estimated reasonable cost. ..
Look David - people may get more excited about sex than about an AG appointee lying to the USDOJ during a Civil Rights investigation, but the test is supposed to be the public interest.

This said, it's not all bad. One thing Kroger has done, in response to a plethora of complaints, is make improvements to the waiting time. AG Hardy Myers would allow agencies to ignore particularly embarrassing inquiries for months. Under Kroger, if the agency doesn't respond in a week, a public records petition will typically get you some action. Of course that action is typically just a denial, or a statement that some outrageous fee is perfectly acceptable to AG Kroger.

As Benjamin Franklin said "It's a republic - if you can keep it."