DORIAN DALEY 500 Oracle Parkway phone 1.650.506.5500 Exam-Mina Vice P-rwidwr 5 op7 fax 1.65 0.633.181?) Genera! Canary! 67 Sea-crag- Redwood Shores oraclecom California 94065 September 29, 2015 Via Priority Overnight Mail and E?Mail ellen.f.rosenblum@doi .state.or.us Ellen F. Rosenblum Attorney General Oregon Department of Justice 1162 Court Street NE Salem, OR 97301?4096 Dear Attorney General Rosenblum, I am writing in response to a September 18 letter from your of?ce regarding Oracle?s request for public records generated by former Governor Kitzhaber using his jk.hundredthmeridian@gmail.com email account (?the Hundredth Meridian ACcount?). Thank you for con?rming that you are now representing Governor Brown in connection with Oracle?s public records request. In your letter, you state for the ?rst time?more than ?ve months after Oracle submitted its public records request and after several months of discussions with your of?ce and Governor Brown?s Deputy General Counsel, Misha Isaak?that Governor Brown and the State have made a private arrangement with former Governor Kitzhaber to allow Kitzhaber to review documents covered by Oracle?s public records request and make determinations as to whether they constitute public records. Without consulting with Oracle (the requestor), the State has apparently accepted the former Governor?s demand that he?and his lawyers?Hbe given the exclusive right to review and produce public records created by former Governor Kitzhaber while using the Hundredth Meridian Account to conduct of?cial business. It does not appear that this private arrangement has been discussed or disclosed to any of the several news organizations that have requests pending since February for many of these same public records. This arrangement is highly improper. Not only is it inconsistent with Governor Brown?s public statements about her commitment to transparency, but it violates the State?s legal obligations to locate and produce public records in the State?s possession. The State cannot outsource its duty to produce public records, particularly through a private arrangement with a former politician who has a personal interest in keeping the documents out of the public eye. ORAC Former Governor Kitzhaber sent and received emails relating to public business using the Hundredth Meridian Account. Copies of these emails are stored on state servers. In accordance with Oregon?s Public Records Law, the Department of Administrative Services properly maintained an archive of the Hundredth Meridian Account on its server. These are ?public records? within the meaning of ORS Unlawful destruction of any public record, regardless of medium or physical format, is a crime. ORS 162.305. Unlawfully concealing or removing a public record is also a crime. Id. Thus, the State has a mandatory and continuing obligation to preserve these records, and to allow the public to exercise its legal right to inspect them. The State has not met its obligation. As you know, the Public Records Law weighs heavily in favor of disclosure and a policy of public transparency. A public record ?includes any writing that contains information relating to the conduct of the public?s business . . . used 'or retained by a public body regardless of physical form or characteristics.? ORS see also Brown v. Guard Pub! ?g Ca, 267 Or. App. 552, 563 (2014). You have acknowledged that former Governor Kitzhaber used this email account to conduct state business and generate public records.1 When a public records request is made, the State has an obligation to reSpond ?as soon as practicable and without unreasonable delay.? ORS Governor Brown has acknowledged this obligation and the need to change from the approach of delay and obfuscation adOpted by former Governor Kitzhaber. During her ?rst press conference, Governor Brown participated in the following exchange: 1 In the September 18 letter from your of?ce, Jermaine Brown writes, am told, Dr. Kitzhaber did sometimes use this account to send emails relating to his of?cial duties as governor.? In the same letter, Jermaine Brown writes that Governor Kitzhaber?s attorney is tendering . . . emails from the jk.hundrethmeridian@gmail.com account that she concedes are public records.? On June 1, 2015, Deputy General Counsel Misha Isaak produced an email exchange from this same account, acknowledging that it was ?responsive to [Oracle?s] public records request,? that shows Kitzhaber used the Hundredth Meridian account to discuss of?cial business. Notably, Mr. Isaac?s June 1, letter was the ?rst time Governor Brown even acknowledged Oracle?s public records request. Mr. lsaak?s letter wrongly states that our request for documents relating to Patricia McCaig was issued on April 6, 2015. In fact, our request was issued on February 27, 2015, months prior to his response, and our request merely mirrored public records requests made by media outlets in 2014. 2 In recent years, the State has deveIOped a reputation for failing to produce public records in a timely and complete fashion pursuant to the public record laws or even when in litigation. See Long v. Kroger, Marion County Case No. 11C14422 (?nding the Oregon Department of Justice violated the Public Records Law in failing to respond to public records request in a timely fashion); Lane v. Kirzhaber, 3:12? cv?00133?ST (D. Or.) (Docket Entry 323) (discovery sanctions imposed against State for failure to produce documents); see also (noting that DAS employee Michael Rodgers was placed on administrative leave after preventing Governor Kitzhaber?s of?ce from deleting public record emails (which are the subject of Oracle?s public records requests) and further noting Rodger?s observation that had seen the state repeatedly fail to turn over public records in a timely or complete fashion?). Q: Public trust has obviously been shattered, you talked about that during your swearing-in speech. What?s your plan to make Oregon government more transparent? Governor Brown: We will of course be releasing public records, as many public records as we can, as quickly as possible. I?ve also spoken with the Attorney General about providing special counsel to help us make sure that the records we can release will be released in an orderly manner. The State?s handling of Oracle?s public records request?and similar requests by multiple news organizations for emails from the Hundredth Meridian Account?runs counter to Governor I Brown?s stated commitment to transparency and is inconsistent with the requirements of the Public Records Law. The State?s refusal to review public records in its possession from the Hundredth Meridian Account is even more troubling considering the State?s representations over the last four months as we have cooperated with your and Governor Brown?s offices and agreed to be patient: I On June 25, 2015, in an effort to resolve the delay in producing responsive documents to our public records requests, Oracle?s counsel asked Governor Brown?s Deputy General Counsel Misha Isaak and Assistant Attorney General Jermaine Brown to prioritize production of responsive emails contained in the jk.hundredthmeridian@gmail.com account: As recently discussed, we ask that DAS and OHA prioritize production of relevant documents from former Governor Kitzhaber?s email account, The Governor?s of?ce has already produced emails ?'om this account in response to our April 6, 2015 requests. 0 Subsequent to this request for prioritization, Mr. Isaak told Oracle that we were going to receive these docnments During a phone call on July 2, Mr. Isaak stated that the Govemor?s Of?ce was close to beginning review and production of these documents and promised to provide a written estimate within a week of the cost and time to produce them. 0 A week later, by letter dated July 9, Mr. Jermaine Brown stated: With respect to the two Gmail accounts used by Dr. Kitzhaber, as we discussed, the Governor's Of?ce plans to produce documents associated with these accounts in response to several public records requests for similar information (many of which precede your public records requests). In light of the fact that your request is similar to ORACLE others, and in the interest of ef?ciency, public records responsive to the portion of your request that relates to Dr. Kitzhaber's two Gmail accounts will be included in these productions. The Governor's Of?ce expects to begin a rolling production of emails ?om those accounts by September 1, 2015. Because your request is duplicative of others, the Governor?s Of?ce will waive all fees associated with review and production from Dr. Kitzhaber?s two Gmail accounts. Then, another week later, on July 16, Mr. Isaak responded by email to our inquiry regarding whether the Hundredth Meridian Account emails had been gathered by stating: will begin reviewing the jk.hundredthmeridian emails next week.? By email of August 28, Mr. Jermaine Brown revised the date that production would begin to September 8: In my letter of July 9, 2015, I advised that the Governor?s Of?ce expected to begin a rolling production of emails from former Oregon Governor Dr. John Kitzhaber?s Gmail accounts on September 1, 2015. The Governor?s Of?ce now expects to begin production of those emails on September 8, 2015. On September 8, 2015, we received a document production that failed to produce a single document from the Hundredth Meridian Account. It does not say why the Hundredth Meridian emails were omitted ?om the response, and absent a successful lawsuit by former Governor Kitzhaber enjoining the state from releasing public records, the State is responsible for determining the nature of and producing public records in its possession. However, Governor Brown?s website includes a notice stating: ?The jk.hundredthmeridian@gmail.com email address also used by former Governor Kitzhaber is presently the subject of litigation; emails from this account are not included in this production.? It is not clear what litigation Governor Brown is referring to or how any such litigation would justify delaying production of these public records. On September 18, 2015, Mr. Jermaine Brown sent a letter in which he stated that former Governor Kitzhaber acknowledges that the Hundredth Meridian account contains public records under ORS but has threatened to sue Governor Brown if she ?independently gathers and reviews these emails.? The letter states that Governor Brown is letting Governor Kitzhaber?s attorney decide what to produce. The letter further states that you cannot guarantee with any certainty when we will receive the documents or even that all non-exempt records Will be produced.3 3 You write that the Of?ce of the Governor ?will apply statutory exemptions? to the public records in the Hundredth Meridian Account. Your formulation of the exemption process may con?ate the State?s obligations under the Public Records Law. public body is ordinarily free to disclose a record or information even if an exemption applies to that record or information.? Attorney General?s Public 4 No mention is made of the fact that Governor Brown has already produced a public record from the Hundredth Meridian Account--on June 1, 2015, Mr. Isaak produced an email exchange between former Governor Kitzhaber and Patricia McCaig from this same account, acknowledging that it was ?responsive to [Oracle?s] public records request.? And the situation was the same then: as Mr. Isaak noted, the email exchange in question was then the subject of litigation because former Governor Kitzhaber had refused, in the face of a court-ordered subpoena, to produce it. Nonetheless, Mr. Isaak wrote that, he had ?possession of this email exchange,? and was producing it ?in the interest of ef?ciency.? Mr. Brown?s September 18 letter then provides an estimate that even the limited production identi?ed by Governor Kitzhaber? lawyer will not start until November. [See enclosed] The same letter notes that former Governor Kitzhaber?s lawyer has already identi?ed ?fewer than 1,000 emails that constitute public records.? Assuming that this statement is true, the letter does not explain why in the more than ?ve months that our public records request has been pending the State has not already reviewed and produced this manageable number of public records that have already been identi?ed. The letter concludes that, eventually, ?[t]hrough this procedure, it is my expectation that the Of?ce of the Governor will produce substantially all of the non-exempt public records in its possession associated with the jk.hundredthmeridian@gmail.com account.? (Emphasis added.) Your response indicates that you will not produce all public records that are required to be produced by law. Fear of a lawsuit by a former public of?cial is not a permitted exemption from disclosure under Oregon?s public records law. Absent a successful lawsuit by former Governor Kitzhaber enjoining the state from releasing public records, the State is responsible for determining and producing public records in its possession.4 Because Governor Brown is taking the position that she cannot produce the Hundredth Meridian emails because of former Governor Kitzhaber?s Records and Meetings Manual, at 27. There are a limited number of unconditional exemptions that the Of?ce of the Governor must apply. Id. at 29. ?But, more commonly a public body may choose to disclose records even if they are exempt from disclosure. The availability of an applicable exemption, without more, simply means that disclosure is not required by the Public Records Law.? Id. at 28. The Of?ce of the Governor should not ?apply statutory exemptions? mechanically, should ?generally favor disclosure even if an exemption from disclosure is available,? and should favor disclosure when determining whether a conditional exemption applies at all. Id. at 28?29. 4 See Oregon AFSCAZIE Council 75 12. Oregon, 150 Or. App. 87, 93?94 (1997). You further assert that the issue is properly under review by Judge Geyer, who is presiding over litigation between the State and Oracle. But Former Governor Kitzhaber is not a party to, nor is the public records request served on Governor Brown the subject of, that litigation. Obviously, Judge Geyer cannot render an advisory opinion in Rosenblum v. Oracle America, Inc, Marion County Case No. 14C20043, as to whether Governor Brown has to produce the documents under her separate obligations pursuant to the Public Records Law. ORACLE. threat of litigation, and because Governor Brown has withheld many of the Governor Kitzhaber emails citing various exemptions, Oracle intends to ?le suit against Govemor Brown and former Governor Kitzhaber for violation of the public records law within seven days from today?s date, if the records are not produced as requested. See ORS 192.480. We and the other requesters have waited months for a response. Your delay is not reasonable and is in violation of Governor Brown?s obligations under the law. Considering that you have abdicated your duties to a former public of?cial whose issues with transparency ended his administration, your conduct raises serious questions about whether the State is able to execute its obligations under the Public Records Law. Finally, pursuant to the Oregon Public Records Law, ORS 192410-505, Oracle America, be, hereby requests that you produce all communications between the State, including the Of?ce of Governor or the Department of Justice and former Governor Kitzhaber, his attorneys or other representatives, including Janet Hoffman or anyone at Janet Hoffman 85 Associates LLC, that concern the course of action and positions taken by the State in its June 1, 2015 and September 18, 2015 letters, including but not limited to the private arrangement between your o?ce, the Of?ce of the Governor, and former Governor Kitzhaber for review by Kitzhaber of documents responsive to Oracle?s public records request. EVP, General Counsel and Secretary DD:lcs Encls. cc: Assistant Attorney General, Jermaine Brown (via email to ELLEN F. ROSENBLUM FREDERICK M. BOSS Attorney General Deputy Attorney General DEPARTIVIENT OF JUSTICE CIVIL ENFORCEMENT DIVISION September 18, 2015 Edward N. Siskel (by?rst?class mail and email) Wilmer Cutler Pickering Hale Dorr LLP 1875 Avenue, NW Washington, DC 20006 Dear Mr. Siskel: I represent the Of?ce of the Governor in connection with public records requests made by you on behalf of your client Oracle America, Inc. (?Oracle?). As you know, the Of?ce of the Governor is producing on a rolling basis emails sent to or from two email accounts used by former~Governor Kitzhaber. The purpose of this rolling production is to satisfy (at least in part) numerous public records requests, including your requests on behalf of Oracle. This letter will update you on our progress and plans for this rolling production. 1. Emails To or From Governor.Kitzhaber@gmail.com The Of?ce of the Governor made the ?rst installment of its rolling production on September 8, 2015. This installment consisted of approximately 5,000 emails, more than 18,000 pages, all of which were sent to or from Governor.Kitzhaber@gmail.com, which, it is my understanding, was the email account that Dr. Kitzhaber used primarily for communications relating to his duties as governor. The Department of Administrative Services possesses, in total, approximately 12,000 emails that were sent to or from the Governor.Kitzhaber@gmail.com account. DAS did not begin archiving emails from this account until August 2011. Dr. Kitzhaber?s attorney, Janet Hoffman, has said that she will transmit to the Of?ce of the Governor all emails sent to or from this account prior to August 2011. She estimates that there are approximately 1,5 00 such emails. The Of?ce of the Governor will review and, subject to application of statutory exemptions, produce these emails together with the 12,000 emails in possession. I cannot guarantee with certainty when the Of?ce of the Governor?s review and production of emails from the Govemor.Kitzhaber@gmail.com account will be complete. The Office of the Governor has retained a contract attorney who is working full-time on reSponding to public records requests. The vast majority of his time is spent reviewing Dr. Kitzhaber?s emails. My best ?good faith estimate? is that the Of?ce of the Governor will produce approximately 5,000 emails per month until the production is complete. 1515 SW Fifth Ave, Suite 410, Portland, OR 97201 Telephone: (971) 673?1380 Fax: (9'71) 673-1882 TTY: (800) 735-2900 Edward N. Siskel September 18, 2015 Page 2 2. Emails T0 or From jk.hundredthmeridian@gmail.com As you know, DAS also has possession of emails associated with a second account used by Dr. Kitzhaber, which, it is my understanding, was used primarily for his private/non?state correspondence (although, I am told, Dr. Kitzhaber did sometimes use this account to send emails relating to his of?cial duties as governor). Dr. Kitzhaber?s attorney, Janet Hoffman, contends that the Of?ce of the Governor is in possession of these emails unlawfully, and that many of the emails in this account are not public records. She has threatened legal action against the Of?ce of the Governor if it independently gathers and reviews these emails. As you know, Ms. Hoffman?s position, and your client?s responsive position, are now under review by Judge Geyer in Rosenblum 12. Oracle America, Inc. N0. 14C20043 (Marion County). If Judge Geyer?s ruling clari?es whether the Of?ce of the Governor is in lawful possession of emails associated with the jk.hundredthmeridian@gmail.com account, as I hope it will, the Of?ce of the Governor will apply that ruling in this context too. In the meantime, while that issue is pending before Judge Geyer, the Of?ce of the Governor will review and, subject to application of statutory exemptions, produce two categories of public records from the jk.hundredthmeridian@gmail.com account that are not in dispute before Judge Geyer. First, Ms. Hof?nan is tendering to the Of?ce of the Governor emails from the jk.hundredthmeridian@gmail.com account that she concedes are public records under ORS The Of?ce of the Governor will apply statutory exemptions and then produce emails tendered by Ms. Hoffman. Second, with respect to emails between and any Of?ce of the Governor email account, to the extent not already tendered by Ms. Hoffman, the Of?ce of the Governor will, if technically possible, gather this set of emails, apply statutory exemptions, and then produce them as well. Through this procedure, it is my expectation that the Of?ce of the Governor will produce substantially all of the non-exempt public records in its possession associated with the jk.hundredthmeridian@gmail.com account. As with Dr. Kitzhaber?s other email account, I cannot guarantee with certainty when the Of?ce of the Governor?s review and production of emails from the account, as described above, will be complete. It is my understanding, based on representations from Ms. Hoffman, that this account contains fewer than 1,000 emails that constitute public records. Accordingly, my best ?good faith estimate? is that emails from both accounts will be produced by the end of November 2015. Sincerely, Jermaine F. Bro Assistant Attorney General Oregon Department of Justice 68003 I 2-vl