Prior to each legislative session, the governor is permitted to submit to the Legislative Assembly, bills for proposed legislation. Before doing so, the governor seeks recommendations from each of her agencies.
In years past the governor has required agencies to submit their proposed legislative concepts using a form which, among other things, requires the agency to identify a problem or issue it seeks to resolve and to propose a way of changing the law to address the issue so identified (“Legislative Concept Approval Form”).
Also in years past, the governor has maintained a practice of approving or disapproving the proposals. Proposals approved by the governor are forwarded to the Office of Legislative Counsel for drafting as bills to be filed prior to the commencement of each legislative session for consideration during the upcoming legislative session.
Greg Chaimov is a member of our law firm and was Oregon’s legislative counsel for years. Since 2010 we have made requests to the office of the governor under the Oregon Public Records Law to provide us copies of the Legislative Concept Approval Forms so we can, in turn, supply them to our clients and friends. Our interest in doing so is to assure that citizens know how and why their government wishes to change the law and to have time to prepare to address the state sponsored proposals.
In May of 2018, the Department of Administrative Services (“DAS”) informed all state agencies that legislative concepts “will be temporally exempt from disclosure [under the Public Records Law] until legislative counsel has submitted bill drafts to the Governor’s Office for final approval (this should be done by November 30, 2018)” which is after the November general election.”
Unlike the forms used in previous years, the new forms state, in part: “Although it is expected that agencies will have discussed legislative concept ideas with stakeholders, agencies are directed to treat this document as confidential and privileged and, accordingly, not to share the text of this form outside of state government before legislation is drafted and finalized.”
This year, DAS received 270 concepts from state agencies. Five were not approved and 31 were ultimately withdrawn. The remainder (234) were forwarded by DAS to the office of legislative counsel for drafting as proposed legislation for the 2019 Legislative Assembly’s consideration. Few, if any, have been shared with us, the press or the public.
On July 30, 2018, DAS denied Greg’s request and determined that “the above records are exempt from disclosure under ORS 192.355(1) based on attorney-client privilege.
On August 3, 2018, Greg filed an appeal with the attorney general and on August 28, 2018, the appeal was denied. We, in turn, filed a lawsuit to require the state to disclose these public records.
On Wednesday, October 24th, the Marion County Circuit Court issued an Order requiring DAS to turn over these Records to us by 5pm Friday, October 26. The state sought to stay the effect of the Order in both the trial court and in the Court of Appeals. Their requests were denied. What follow on this page are the documents which DAS has produced in response to the court’s order. They are reproduced here in the order we have received them absent any changes on our end.
"As we have explained to the governor’s office, state agencies are quite powerful and wield great influence in the legislature. Oregonians have a right to know what changes to the law their state agencies are dreaming up as early in the process as possible so they can be prepared to address them. These documents are not state secrets, they are concepts which agencies of the state intend to pursue. The state’s interest in keeping them secret should never surpass the right of the public to disclosure. That is because this is our government and we have the right to know what it is up to." –John DiLorenzo
- John DiLorenzo
- Greg Chaimov
- Duane Bosworth
- Chris Swift
- Chris McCracken
- Aaron Stuckey
- Evan Christopher