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Monday, September 14, 2009

Here we go again with copyright and Oregon public records

There's an economics professor at the University of Oregon named Bill Harbaugh, and this fellow really has a bee in his bonnet about access to public records in the state. He's of the view that the state's "open meetings" law, which also covers access to records, is too wimpy and needs to be reformed. He's also apparently a frequent requester of documents from state agencies, including the university that employs him, and that apparently hasn't much endeared him to the bureaucrats who have to deal with him. Lately, he says, he's been after records about a lawyer for the university -- one with whom he's tangled over his many requests. Let's put it this way: He won't be getting any "team player" awards from his superiors any time soon, especially since he likes to air out their personal compensation packages when of course, they'd rather he didn't.

A while ago, Harbuagh discovered that the state attorney general's office has written an extensive manual on Oregon law regarding public records -- and that ironically, it isn't posted on a state website anywhere. When he asked the AG's office for a copy, Harbuagh says, he was told it would cost $25 for a pdf file and warned that it was copyrighted material, not to be copied or redistributed without the state Justice Department's consent.

Harbaugh is defying the copyright warning. He says he checked a hard copy of the manual out of the U of O law library, scanned it, and has posted the resulting pdf files on the U of O website, here. He hearkens back to the recent flap in which the bureaucrats who work for the state legislature claimed that the Oregon Revised Statutes could be copyrighted -- a claim that they quickly abandoned once it was publicized to great uproar.

It's interesting that the AG's office isn't claiming that the manual is confidential or privileged, but is claiming that it's protected by copyright and can't be disseminated without payment of money. Especially since they apparently can send it out in a readily available pdf file, why don't they just blow a little bandwidth and post it?

Interestingly, Harbaugh notes that the existence of the manual was mentioned in Willamette Week, when Attorney General John Kroger pointed to it as requiring him to release the drafts of the investigation report in the Sam Adams-Beau Breedlove teen sex case. That incident is surely a gift that keeps on giving, isn't it?

Anyway, Oregon taxpayers shouldn't have to pay to see a copy of the state public records manual. We already paid for its production, and that's enough. Given all the promises of transparency we heard last fall, it ought to be posted officially, as in right away.

Comments (27)

This gets tiring the way that "public" agencies hide stuff. Try to find a simple budget and history for the State, City of Portland, TriMet, etc.

Like it'd kill them to be open and honest with taxpayers.

Let's cut to the chase. What's the real motivation behind their desire to keep control over dissemination of the manual? They just want to keep public records closed? Or at least make certain public records difficult to access? Is that it?

Here's my contribution to keeping records public.

On a fancy street off of Willamette Boulevard. Worker is sledgehammering cement, signs recall petition for mayor Sam Adams.

We two canvassers cross the street and find an empty house. Darn. Going back up street, notice that owner of house appears to be talking in serious earnest to cement worker, waving a piece of paper. Is he giving the guy a hard time??? Can't be. We stop, ask very, very politely if owner would like to sign. "ABSOLUTELY NOT." I apologize for bothering him. We go to next house, where, darn, again noone is home. Owner walks down to us, stops, tells us that our services would be more useful in rural or suburban areas, and that "you won't find much support in this area". I reply, you know, we are all free to have our own opinion and act on it." Then he proceeds to tell us that Beau Breedlove is an "opportunistic pig". I unravel somewhat, get ready to cry, vomit, lose my bowel contents on his new cement job, etc, but can only exclaim, repeatedly, "how can you SAY that?!". Upon which owner does seem like maybe he has understood that maybe he should have chosen his words, um, a little better.

Then Providence intervened. Not one, but two parties almost SIMULTANEOUSLY returned home to both of the houses in front of and next to our kindly gentleman. Both parties have two people in it, all four persons sign the petitions, on their car bonnets. Moments later, man walking his ancient mom clutching her walker, come around the corner, both sign the petition.

Our man has gone into his house, then comes back out. I approach him as he is talking again to his cement worker, let him know on the politest possible terms, sir, I just wanted to let you know that no fewer than six people on your block just signed the petition.

We have a eureka moment. He waves his hand, almost friendly, "that's OK, people are entitled to their opinion", he says.


Dorothy Gale reincarnate.

Hey, thanks for the cite Jack!

On inauguration day President Obama's first executive order called for more transparency in government. 6 weeks after Senate confirmation his AG Eric Holder sent out a memo to government agencies, making clear the USDOJ would no longer help them hide behind a restrictive interpretation of FOIA law.

I can say from my own experience that those reforms have already led to FOIA improvements. The USDOJ OIP bureaucrats now cite Holder's memo with pride, and release documents quickly and at no cost - including documents that the Oregon DOJ is still claiming are privileged and can never be released.

John Kroger could take that memo, substitute "Oregon Public Records Law" for "FOIA", and implement the same reforms in Oregon by this afternoon.

Bill Harbaugh

My website at http://openuporegon.com has more on this.

Excellent post. It's almost like reading the Oregonian about 25 years ago when they sometimes delved into an issue. And then they let you decide on the real facts and not the slanted.

Funny how professors are doing all the detailed investigative work while reporters slack off. It will be good news when all the big Oregon newspapers go out of business.

There is now a useful blog about UO mismanagement and secrecy issues called "UO matters".

Twenty five years or so years ago, the Oregonian sometimes published stories with facts if it suited them. And sometimes they withheld them. Three stories I know for a fact that were not published by the Oregonian in the 80s - cocaine dealing done by employees of large auto dealer chain (reporter quit Oregonian and left Portland), Packwood scandal (prior to the election - story was broken to public by The Washington Post), and the Roman Catholic priest scandal (this on authority from a family member of one of the victims whose family had talked to an O reporter in the 80s).

Not to mention the Goldschmidt pedophilia period.

LucsAdvo and Allan L, I agree with both of you. And add Adams to the list.

I just remember 25 or so years ago (I've been reading the O for over 55 years) that when O's editorial board finally let a reporter delve into a story, they seemed to do it more precisely and with less judgment. But then my memory and wishful thinking might be escaping me.

With regard to the Holder memo, boy am I glad that instead of steadfastly applying the law, that some nameless, faceless Federal bureaucrat will be deciding on a case-by-case basis whether my or others privacy interests ought to be protected. I am jumping through hoops!

Does anyone out there have any idea how little run-of-the-mill FOIA's have to do with open government?

I have always wanted to FOIA the FBI for opening an innocuous personal letter (without a warrant and without probable cause) sent to me in 1972. Back in the days of their paranoia about anyone who might remotely know someone who might remotely know someone who might remotely know Daniel or Phillip Berrigan (and while I never met a Berrigan I was friends with people who knew people who had met them and or protested with them). There's been a few other things too over the years too... but somehow I am sure that it's all been lost..

Bill Harbaugh, Mr Kroger is too busy with "creative nonfiction," a field of endeavor for which he demonstrated considerable flair in the Adams/Breedlove matter. He is, WW informs us, already a finalist in that category for an OR Book Award:

"Sarah Winnemucca Award For Creative Nonfiction

Bibi Gaston of The Dalles, The Loveliest Woman in America: A Tragic Actress, Her Lost Diaries, and Her Granddaughter’s Search for Home (William Morrow)
Debra Gwartney of Finn Rock, Live Through This: A Mother’s Memoir of Runaway Daughters and Reclaimed Love (Houghton Mifflin Harcourt)
John Kroger of Salem, Convictions: A Prosecutor’s Battles Against Mafia Killers, Drug Kingpins, and Enron Thieves (Farrar, Strauss, Giroux)
Floyd Skloot of Portland, The Wink of the Zenith: The Shaping of a Writer’s Life University of Nebraska Press)"

As James Madison said,

"A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."

Given that this quote is prominently posted on the cover of the very manual which AG John Kroger is now trying to keep off the internet, I hold with those who favor farce.

Kroger is not going to take any action against me. Tony Green is soon going to stop answering questions about this. Kroger is never going to do anything to improve access to Oregon's public records, and he is going to blame this on the legislature, claiming he is powerless to act.

Bill Harbaugh

I'm curious to know why Mr. Harbaugh thinks there's no copyright in the manual produced by the State of Oregon. The argument against copyright in the ORS (and judicial opinions, for that matter) is quite strong. But in a government-produced manual, the case is not as clear cut. Bill?

Check this out.


I don't see how any document like a "manual", produced and published by state employees on the state's dime, can be anything but an open record and in the public domain.

The preface to the manual, written by then Attorney General Hardy Myers, says that the manual constitutes an official opinion of the AG.



Nosing around his site, I see that Prof. H also has a cool "Letter of Marque" issued to a distant relation -- recalling our recent discussion of alternatives to war in Afghanistan after 9/11/01.

G Joubert: being an open record is not inconsistent with being protected by copyright.

Bill Harbaugh: The AG is part of the executive branch, and Hardy Myers is a state official. This raises two problems: copyright law says no copyright in products of the U.S. government (doesn't restrict copyright by state government); and court cases extend this to judicial opinions and legislative acts, Myers's opinion is neither.

Check out the following link...


Can you believe that our subversive government actually charges its citizens for publications? We should all receive our food pyramid charts and keys to soil taxonomy for free. Along with health care -- and food -- and housing -- and transportation (in green zones at least). Whatever you all collectively deem to be right and good and proper, we the people ought to be willing to fund fully and unconditionally.

The $25.00 fee here is nothing more than an administrative fee/nuisance charge. Personally, I have found when I was unable or restricted in my ability to pay such a fee to a government agency, a friendly phone call was all that was needed for a freebie or some sort of workable compromise. And having been on the receiving end of such phone calls more than a time or two, I can say that no struggling college student was turned away empty handed.

"doesn't restrict copyright by state government"

Why would they copyright it if it would have any chilling effect on public access? As long as someone credited Staet of Oregon whenever they quoted parts of it.

What would you suggest the penalty to be for sharing your copy of a manual written by taxpayer-paid employees that explains law on Oregon records?

I mean everytime someone wants to know what rules are they need to get permission from the State of Oregon?

"The $25.00 fee here is nothing more than an administrative fee/nuisance charge."

Fine, if it's just a PDF post it on the WEBsite and requore no "nuisance" from taxpayers.

Today slashdot.org picked up this story, saying Kroger has reached a "new level of meta-absurdity". I'm getting hundreds of downloads.


Sorry, I know I'm enjoying this way too much. I do hope Kroger starts making those improvements to PR law implementation quickly.

Bill Harbaugh

Volokh's blog is now covering this. I put in a plug for you.


Great work Bill Harbaugh.

Open government and public records have lapsed shamefully (and steadily) in Oregon over the past 25 years.

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