- Eye on Media
“Every person has a right to inspect any public record of a public body in this state, except as otherwise expressly provided . . . ” Those are the words of Oregon’s Public Records Law, and they sound simple enough: “every person” has the right to see a public document, even persons who may be critics of the Oregon International Port of Coos Bay and its secretive machinations.
Oregon’s Public Records Law, which dates from 1973, is not unique. Inspired by the Watergate scandal of those days, all the states were passing laws to give the public access to government documents, and many of those laws are more generous than Oregon’s. Still, it’s been a great help to Oregonians wanting to know what their public servants have been up to.
Laws of human nature
But there are two kinds of laws, man-made ones and laws of nature. Man-made ones can be changed and often are, as reflected by the title under which Oregon’s laws are accumulated: O.R.S. – Oregon Revised Statutes. Since the Public Records Law’s enactment, for example, the Oregon Legislature has created about 400 exemptions to it. But laws of nature cannot be amended quite so easily. Nobody can create exemptions from the law of gravity, or change the fact that at sea-level atmospheric pressure, water turns into steam or ice and at certain known temperatures. Laws of nature include a sub-category of laws only slightly less immutable, known as laws of human nature. “Expenses Rise to Meet Income” is one, as is “Work Expands to Fill the Available Time.” It is also a law of human nature that many government bureaucrats dislike scrutiny, and look at members of the public digging for official dirt as dangerous subversives. Hence Public Records Laws have few fervent supporters in official circles, but I need to qualify that. I’m not talking about the tax collector’s office and several other, basic government services; they’ve never obstructed my information requests. The problem seems to occur mainly in government offices that have been given tasks both vague and impossible and which, as a result, are desperate to hide the fact that they are producing nothing of value. Although we have accumulated many such agencies in Coos Bay, the Port of Coos Bay is the premiere example, as I found out twenty years ago when I asked the Port for documents on its illegal sales of federal surplus equipment. Until then I had obtained all of my information on that topic from interviews with local people not connected to the port, whose fraudulent actions had never been scrutinized by our subservient local daily, The World. Apparently the then-Port Manager, Allan Rumbaugh, meant to keep it that way because he refused my request. Fortunately the Public Records Law provided for an appeal to the district attorney, who immediately ordered Rumbaugh to comply. And so he did – as far as I know. That was also when the Port started charging for documents. People who buy my book “The Job Messiahs” for a mere thirty-five dollars should know that it not only represents thousands of hours of work, but a fair amount of money spent for such papers.
In June 2011, the Port of Coos Bay received a Public Records request from the Sierra Club, for documents related to its dealings with four unknown companies interested in exporting coal through Coos Bay. As Judge Paula Bechtold noted in a scorching decision on January 25 of this year, that was twenty months ago, and the parties in her court that day were still making the very same arguments. And yet, the judge said, “Two simple questions were all that needed to be answered at the outset: Is disclosure in the public interest? Will Sierra Club disseminate information to the public? Those questions were answered at the outset.”
You pay for our attorneys
The Port’s response to the Sierra Club’s June 2011 request had been to announce that it would cost the club some $20,000 to obtain the materials, mainly because they would all have to be reviewed by attorneys, who might redact them and not allow certain ones to be handed over. This was because of confidentiality agreements with the private companies involved.
The learned judge did not bring it up, but the very notion of confidentiality agreements involving a public body is troublesome. It’s all very well for privately held enterprises to require confidentiality, both internally and in mutual agreements. Usually that kind of secrecy satisfies one or both parties’ desire for a commercial advantage, and it does not concern the public unless it hides a criminal scheme. But if a public body like the Port is involved, and its representative is given unlimited discretion to sign confidentiality agreements (as the Port Commission gave to its Port Manager), it’s easy to see that the public’s access to information could be blocked simply by the Port bureaucracy’s own desire for secrecy. The record of the Port’s activities during the past four decades provides plenty of reasons to be concerned about that. It includes innumerable instances of secret negotiations with private entities, and of blatant lying by Port officials about them to a worried public. Add to all that the fact that back in 1986 the Port Commissioners, by means of the fraudulent “State Port” bill, destroyed the local voters’ right to elect and recall them, and you have all the makings of a tyrannical oligarchy: authoritarian, secretive, and irresponsible.
In any case, the Sierra Club was rather shocked by the estimated cost of its request, and by November 2011 its attorneys shortened the laundry list of documents. They also requested the Port to waive the costs, something provided for in the law if the document request is in the public interest.
Who’s doing his best, to quash the Public Interest?
The Port, however, had grave doubts that giving the documents to the Sierra Club WAS in the public interest, perhaps because the prevailing view in the port’s offices has been that whatever it does IS in the public interest, which makes public scrutiny unnecessary. So the Port demanded that the Sierra Club prove that it was acting in the public interest; and to obtain such proof the Port instituted its own documents request, to the Sierra Club. The Port not only wanted proof of the Sierra Club’s legal existence, but it demanded all kinds of materials about its fund raising, its income, its tax returns, its directors and members, how they made their money, its dealings with anyone in the coal business, and so on.
The Sierra Club provided some of the materials, but objected to providing the rest; and that was, more or less, where the process came to an impasse. The Sierra Club wanted a lot of documents, but it didn’t want to pay the Port’s price. The Port wanted a lot of documents too, and it was not going to budge until the Sierra Club produced them. Moreover, the Port set itself up as the ultimate authority on whether the Sierra Club was really acting in the public interest. “Maybe,” the Port said in so many words, “you folks at the Sierra Club have among your members somebody who is a competitor of our coal companies, and that person wants to obstruct our plans for purely self-interested reasons. If that’s the case you’re not acting in the public interest, and you pay full price. So there.”
Stuck between a rock and a hard place, the Sierra Club then appealed to the Coos County district attorney, as I had done twenty years before. The district attorney published his decision in February 2012, now one year ago. Unlike the Port, he didn’t question that the Sierra Club was acting in the public interest. But most important, he thought that charging outrageous fees for documents would defeat the purpose of the Public Records Law. He didn’t use the word “outrageous,” but he pointed out: “If an agency places a high cost on [documents] . . . the rights of the public to have access will be hindered, chilled or even denied.” He also found a murky clause in the law that seemed to suggest that charging for attorney fees was not allowed. Instead of billing the Sierra Club $20,000, he decided that the Port could only charge for copying and staff time, which amounted to $3,300. He did mention, as is customary, that either of the parties could appeal his decision to the local circuit court; and so the Port did, within a month.
Invasive, burdensome and harassing
During the year that followed the parties did not budge. The Port insisted that it would not waive its fees while the Sierra Club insisted that it should, and that its “invasive and legally irrelevant inquiries” were blocking access to public records besides. The circuit court, according to the Sierra Club’s pleadings, should dismiss the Port’s complaint, invalidate its refusal to produce the documents, and order it to do so without the fees. It also should order the Port from acting the way it had towards the Sierra Club or anyone else, and award the club one dollar in “nominal damages.” Apparently that one dollar had a symbolic function. It would be a legal recognition that the Sierra Club’s rights, and by implication the public’s rights, had been violated even though there was no provable monetary damage. The rights that had been violated were both state and federal, the latter including due process, freedom of speech and the right of association.
And regardless of whether you like the Sierra Club or not, in this case it was on the right side. In her recent decision Judge Bechtold found the Port’s document demands of the Sierra Club “invasive, burdensome, and harassing”. The Port, she said, had been “disingenuous” and had shown “bad faith”. She granted every one of the Sierra Club’s requests, while editorializing: “. . . the pattern of obfuscation seems clear: To discourage the pursuit of the request . . . the Port’s actual intent was to force the Sierra Club to fold its tent and go away.”
One more quote that almost sounded as if she and I had read the same book: “The Port seems confused about the . . . public interest. Implicit throughout is the idea that development is in the public interest and therefore an environmental advocacy group’s efforts would not be.”
To make a long story short, Judge Bechtold told the Port to produce the documents, and not to charge a nickel. On top of that the Port will have to pay the Sierra Club‘s attorney fees and costs.
Stuck in the corner
But before she launched into her dressing-down of the Port, the judge made a considerable effort to prove her impartiality by stating that she had never been a member of the Sierra Club, and had never even sent it a contribution. She almost sounded as if she feared being called before a Sierra-Club-Activities-Investigating-Committee: “Judge Bechtold, are you now or have you ever . . .” But of the Port, which was soon to receive the full measure of her judicial scorn, she spoke like a faithful Catholic who, despite the Vatican’s imperfections, will never stray from the One True Faith:
“I personally believe that the Port is the key to our area’s economic development and that we do need development to keep this community viable and a good place to raise children, who are our future.”
With this, Judge Bechtold proclaimed her faith in the very same bureaucracy whose machinations she looked right through, and which she was about to give a good whipping, legally and financially. I know that what seems contradictory may very well be legally correct; but it’s still strange. Sitting on their perches, judges must accumulate a lot of insight into human nature as they listen to an endless procession of wily con men, good-for-nothings, plain stupid people, and recidivists. They learn about the human proclivity toward greed, power, and deceit. They also learn about lawyers and bureaucracies, both of which specialize in confusing people, putting on a good show, and shifting the blame for their failures.
Given all that accumulated knowledge, and her tough verdict, why WOULD Judge Bechtold continue to proclaim her unreserved faith in the Port of Coos Bay? It’s impossible to deny that the good judge remained stuck in the same dunce corner that still holds most residents of the Coos Bay Port District. She must know very little of the Port of Coos Bay’s history, a contemptible catalogue of despotism, deceit and disaster. And because she knows so little she is still convinced, despite the evidence of forty catastrophic years, that the Port possesses the secret formula for “development”, and hence for “our future”. But then, combating such ignorance was the main purpose of my recent book, The JOB Messiahs.
The great American comic Will Rogers concluded that “The short memories of the American voters is what keeps our politicians in office.” Never mind that he grossly mixed up the plural and the singular; Rogers was a folksy fellow, and he said it well. Our ignorance and our inability to learn from history save politicians and bureaucrats from having to face their failures. Most important, it keeps them from being fired and having to go out and make an honest living. So we keep them in their official positions. And they keep on doing the same stupid things, over and over . . . while covering their hinies with the best lawyers public money can buy.