In a blow to government transparency, Oregon's first ever public records advocate, Ginger McCall, resigned on September 9 under considerable duress from the governor's office.

https://sos.oregon.gov/public-records/Documents/resignation-press-relea…

Why should we care?

This issue is every bit as important in Kentucky as in Oregon (or any other state whose commitment to open government is superior to a public official's personal interests or ambitions).

In her letter of resignation, McCall wrote:

"I do not think that the staff of the Governor's Office and I can reconcile our visions regarding the role of the Public Records Advocate. When I accepted this job, it was with the understanding that the Office of the Public Records Advocate was to operate with a high degree of independence and had a mandate to serve the public interest. That is an understanding that I believe the public, the Legislature, and the Public Records Advisory Council share.

Meetings with the Governor's General Counsel and staff have made it clear, however, that the Governor's staff do not share that view. I have received meaningful pressure from the Governor's General Counsel to represent the Governor's Office's interests on the Public Records Advisory Council, even when those interests conflict with the will of the Council and the mandate of the Office of the Public Records Advocate. I have not only been pressured in this direction but I have been told that I should represent these interests while not telling anyone that I am doing so. I believe these actions constituted an abuse of authority on the part of the General Counsel, and are counter to the transparency and accountability mission that I was hired to advance.

While I have always endeavored to work collaboratively with all offices of government, I believe strongly that independence is both essential to the effectiveness of the Office of the Public Records Advocate and enshrined in the law. However, if I am incorrect regarding the legal basis of the Advocate's independence, then the Advocate's responsibility to represent the interests of the Governor's office should be acknowledged before the public and the Council. If the Advocate were to represent the interests of an elected official while allowing the Council and the public to believe that she is acting independently, that would be both unethical and particularly inappropriate for an office that was founded to promote transparency."

The Oregon Territory's Society of Professional Journalists immediately responded, characterizing McCall as "a fierce advocate for transparency" and demanding that the governor answer her charges.

https://drive.google.com/file/d/0B3cmTeZhyC7qZlZxRXB3dk1UNXU1bVJGaWN6VX…

The role of open meetings and records mediator, educator, and advocate in Kentucky is assigned to the Office of the Kentucky Attorney General. Since 1992, that role has been delegated to a staff of merit assistant attorneys general who enjoy (some) protection under state personnel laws.

The signature block that appears on every open records and open meetings decision issued by the OAG contains the name of current office holder *and* the name and signature of an assistant attorney general whose career, in many cases, spans several decades as well as several attorneys general.

By necessity, the open records and open meetings merit staff interacts with the attorney general's nonmerit management staff on a regular basis. It isn't always easy. Tempers flare, tensions rise, and competing interpretations of the law must be reconciled.

The Office of Attorney General may be a political one, but the open records and open meetings process *must not be politicized.*

At its best, this process yields well-reasoned and well-written decisions that the staff — and even the courts — confidently rely on in future open records and open meetings disputes. At its worst, it yields poorly reasoned decisions that saddle the merit staff for years to come. It also generates confusion and uncertainty in interpretation and application of the law by public officials *and* the public.

There is more than one example of an open records or meetings decision that the merit staff declined to sign because the decision was legally unprincipled and indefensible. The most well-known and egregious was the last open records decision issued by Jack Conway in the waning hours of his last day in office relating to communications about public business conducted by public officials/employees on privately owned devices or accounts.

https://ag.ky.gov/orom/2015/15ORD226.doc

No open records merit staff assistant attorney general would agree to sign the decision, and most of Conway's nonmerit staffers were reluctant to do so.

Fortunately, the open records staff has managed to limit the ill-effects of this inexplicable decision, but a less committed merit staff might just as easily have perpetuated bad "law."

This issue is particularly timely as we approach the November elections for attorney general. The person elected to that office must understand that he cannot alter or abandon a well-developed body of law that reflects a judicially recognized "bias favoring disclosure," and a legislative recognition that "free and open examination of public records is in the public interest."

He cannot make the same mistakes as Oregon's governor and attempt to subordinate the public's interest to his interests. He must recognize the expertise of his merit open records staff and their commitment to advancing the public's interest. He must accord the staff respect, deference, and a reasonable measure of independence.

To cast an informed vote, we *must* hear from each of the candidates for attorney general on his intentions for implementing one of the most critical roles the office plays. It is not the role that earns him praise, garners favorable headlines, or secures the support of particular constituencies, but it is the role that, arguably, represents his greatest long term service to the public.

That service consists of ensuring transparency and accountability in government even at a cost to his personal interests, alliances, and ambitions.

Failure to go on record suggests a lack of candor and transparency that is inimical to Kentucky's open government laws.

One of the candidates will hold the office of attorney general for four to eight years. The open records and open meetings laws will live beyond his term, as robust, we hope, on the day he leaves office as the day he takes office.