The open government community was shocked by the departure of two of the country's fiercest open government advocates in 2019.

We wrote at some length about the untimely departure of Oregon's public records advocate, Ginger McCall, in September and reported on subsequent developments.

https://www.facebook.com/419650175248377/posts/511899776023416/?d=n

McCall resigned under considerable duress from Oregon Governor Kate Brown's office after less than two years on the job, expressing disappointment that she was unable to operate independently and fulfill "a mandate to serve the public interest."

She wrote:

"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."

At last report, the Oregon Public Records Council has demanded a new law that would make the public records advocate "as independent as allowed" under the Oregon constitution. McCall's position is currently held by an acting public records advocate, her former deputy Todd Albert.

We did not report on the June 2019 firing of Robert Freeman, an attorney with the New York Committee on Open Government since 1976 and executive director of the committee for many of those 40 plus years.

https://www.nytimes.com/2019/06/25/nyregion/robert-freeman-sexual-haras…

Freeman, whose name was synonymous with government transparency across the country, was fired after an investigation into allegations confirmed that he "engaged in extensive sexual harassment of women who were either co-workers or journalists."

The state inspector general's report documenting Freeman's misconduct found that he often stated that he "answered to no one" in state government and that this unrestricted independence "enabled his unbridled harassment." Consequently, the inspector general recommended "implementation of a clear supervisory and reporting structure for Freeman's successor."

Freeman's misconduct will, it appears, have long term negative consequences for New Yorkers' right to know by undermining needed, but not unfettered, independence.

On January 14, the Times Union reported that Freeman's successor as New York's top government transparency official and executive director of its Committee on Open Government, Shoshana Bewlay, was hired in complete secrecy. Members of the state's open government committee received news of her appointment only hours before it was publicly announced.

The newpaper reports:

"The [Gov. Andrew M.] Cuomo administration's extensive efforts to tightly control public information are well-established. New York is widely viewed as among the most challenging states in the country to obtain public records, despite a law on the books outlining the information that is presumed to be public. In her new role, it's also not clear if Bewlay will be allowed to push back – or if she wants to.

"During her prior four years in the Cuomo administration, Bewlay was general counsel at the state Office of Information Technology Services and oversaw agency responses to open records requests. She routinely wrote opinions in favor of delaying and denying Freedom of Information Law (FOIL) requests, ruling against the Times Union in 10 of out 10 decisions she issued last year to the newspaper."

Bewlay refused the Times Union's request for an interview for its article, refused to answer written questions about her past work, and refused to provide copies of her past legal decisions concerning freedom of information requests to Information Technology Services, "stating that those records themselves would have to be provided through [a freedom of information request]."

Not an auspicious start.

At the time of Ginger McCall's resignation, we asked, "Why should we care?" We answered:

"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).

"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/Priorities/Government-Transparency/orom/2015/15ORD226…

"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."

As Kentucky's new attorney general, Daniel Cameron, assumes this role — one of many with which he is statutorily charged — he would do well to strike a fair balance between the extremes in Oregon and New York.

(Cameron has posted the open records and meetings decisions for all of 2019 on his website, but we are still waiting for the decisions issued in 2020).

He should commit to further the good work of his merit staff, and the body of law that has guided public officials committed to open government and influenced courts in adjudicating open government disputes that are not finally resolved in his office.

It may not be the most important of his many roles, but it is one he can ill-afford to subvert in his own, or any other public official's, interest. The only relevant interest to be considered is the public's interest in determining whether its servants are indeed serving the public.