Dear Attorney General John Kroger and Governor Ted Kulongoski:

The Oregon Public Records Law was created by the Oregon legislature with the intent of giving the citizens of Oregon a legal tool to help them keep Oregon's public institutions accountable and their activities transparent. It is enforced by Oregon county District Attorneys and the state's Attorney General. Despite their disparate circumstances these defenders of the Oregon Public Records Law are expected to interpret and enforce the Oregon Public Records Law on a more or less equal basis, giving latitude only at the margins.

In a legal opinion dated March 4, 2010 Multnomah County District Attorney Mike Schrunk established the following criteria related to his interpretation of the Oregon Public Records Law:

1. Requests for any kind of information from any public entity need not be addressed by that public entity unless the words, "Oregon Public Records Law" are included in the request.

2. Oregon District Attorneys may arbitrarily and with prejudice determine which citizens may or may not use email to conduct official business regarding the Oregon Public Records Law.

3. A public entity may withhold information indefinitely by merely refusing to send a letter of denial to the person requesting public documents.

4. Information kept by a public jurisdiction on a computer database is considered, "nonexistent" and cannot be compelled.

Multnomah County District Attorney Mike Schrunk's ignorant, misguided, prejudicial, indeed, perverted, albeit legally binding, interpretation of the legislature's intent is tantamount to a revocation of the Oregon Public Records Law in Multnomah county.

Item 1 - Public entities should be expected to provide citizens with most information upon request without the time consuming and confrontational approach of the Oregon Public Records Law. This rule engenders a climate of mistrust between citizen and government, inhibits accountability and transparency and violates the intent of the Oregon Public Records Law which is to promote citizen involvement in the oversight of public institutional behavior. 

Item 2 - The prejudicial nature of this rule is self-evident. The essence of the justice system is that all participants are treated with due process under the same rules. Making the legal pronouncement that denying some citizens but not all the right to use email to do business can easily be followed by rules denying some citizens but not all the right to use the U.S. mail to do business then rules denying some citizens but not all the right to do business in person. 

Item 3 - Announcing to every public institution in Multnomah county that in order to avoid any citizen request for public data the entity need merely ignore any request and refuse to send a letter of denial prevents any time limit from being considered a de facto denial. This rule effectively neuters the Oregon Public Records Law.

Item 4 - Most records kept by public jurisdictions are located on some form of computer database, a program that is a collection of similar records. Every spreadsheet and email mail box contain an almost infinite numbers of views of the records contained in their respective databases. Computer databases contain records that are stored throughout a holding medium, most often a hard disk. They can be viewed in as many different formats as the user can imagine. EVERYTHING about the display of records in a database is determined by the user. Computer databases of all kinds inherently contain and are capable of producing whatever type of report the user requests on screen, as an export data file and a printed copy. This rule is based on an astounding and dangerous level of technological ignorance. This rule absurdly defines the vast majority of public documents as being beyond the scope of the Oregon Public Records Law. 

Oregon legislators and candidates for the Oregon legislature will certainly want to know the answer to these questions:

A. Is there any remedy or relief that can be provided by either or both the Oregon Attorney General and the Governor of Oregon that would prohibit Multnomah County District Attorney Mike Schrunk and all District Attorneys from discriminating against some citizens, but not all, by denying them the use of email to make public records requests?*

B. Is there any remedy or relief that can be provided by either or both the Oregon Attorney General and the Governor of Oregon that would prohibit Multnomah County District Attorney Mike Schrunk and all District Attorneys from preventing a statewide uniform time limit from being considered a de facto denial?*

C. Is there any remedy or relief that can be provided by either or both the Oregon Attorney General and the Governor of Oregon that would prohibit Multnomah County District Attorney Mike Schrunk and all District Attorneys from denying access to any public record based on the fact that such record resides on a computer database?*

*Of course, a remedy or relief can be sought in Circuit Courts which are prohibitively expensive for most citizens and have a protracted time frame for adjudication potentially rendering public document production moot.

Your answers to these questions will provide the basis for public office campaign conversations and legislative action in the 2011 session.

Thank you for your prompt attention.


Richard Ellmyer

Candidate for the North Portland House seat in the May 18, 2010 Democratic primary.

http://www.ellmyer4staterep.com