DORIAN DALEY 5000neiPatoesy phone +1.6303063300, Extn Vie Prod see fx. 650658.1813, Geol Cor! &Seaury Redwood Shores erdecom Cain 94065 November 2, 2015 Ellen F. Rosenblum ‘Attorney General Oregon Department of Justice 1162 Court Street NE Salem, OR 97301-4096 Dear Attorney General Rosenblum, On September 28, I wrote to you about Governor Brown’s failure to comply with Oregon’s Public Records law by unreasonably delaying and denying our public records request, including through an unprecedented private arrangement allowing former Governor Kitzhaber unilaterally ‘to determine whether documents covered by our request constitute publie records, I expressed my concern at this dramatic and troubling refusal of Governor Brown to live up to her public commitments to transparency and your office’s failure 10 meet the obligations of Oregon's Public Records law. Because six months had already passed since we filed our Public Records request, I noted that Oracle would file a lawsuit to ensure compliance with the law if we did not receive the documents requested within seven days. ‘The evening before the date we had informed you we would be forced to file suit, Deputy General Counsel Misha Isaak transmitted for the first time a production of documents from Kitzhaber’s jk hundredthmeridian@gmail.com and jk hundredthmeridian@att.net email accounts (‘the Hundredth Meridian Accounts”). Isaak wrote that he was “making this production to [Oracle] now, before it is publicly announced, in the interest of providing you with documents as quickly as is practicable.” But Governor Brown’s press release the next moming made clear that her private arrangement with Kitzhaber was still in effect, and that you and Governor Brown are continuing to abdicate your responsibilities by allowing her predecessor to make the decisions about what constitutes a public record.! * http://www.oregon. govinewsroom/Pages/NewsDetail aspx?newsid-807. (“...former Governor Kitzhaber has identified to the Office of the Governor emails from the second account that he concedes are public records.")ORACLE While Governor Brown has publicly touted the release of 1,000 pages of documents from the Hundredth Meridian Accounts, even a cursory review of the production demonstrates that these statements are misleading. © Of the 1,026 pages of documents relating to the Hundredth Meridian account, roughly half are from two books photocopied in their entirety. Literally, page afier page of “Everything We Know About Leadership Is Less Than We Still Have To Learn,” by Jeff Golden, and “Government That Works: The Results Revolution in the States,” by John M, Bemard. It goes without saying that these books are not responsive to Oracle’s Public Records Requests, which seek communications related to the Oregon health insurance exchange, which would include emails with individuals such as Cover Oregon’s Executive Directors Rocky King, Bruce Goldberg, or Clyde Hamstreet. ‘+ Examples from the remaining approximately 500 pages of Governor Brown’s document dump include: more than 20 pages entirely in Chinese; Two copies of John Kitzhaber for Governor 2010’s “A Plan to Rebuild and Reinvest in Oregon”; a 23-page report from Ceres, Inc., titled “Benchmarking Utility Clean Energy Deployment: 2014”; 33 pages photocopied from a “Health Care Without Harm” paper and brochure produced by the Catholic Health Association; and a 34-page draft of Kitzhaber’s theoretical paper on pursing the American Dream, titled “The Unified Theory of Everything.” © Ultimately, only one document was responsive to our request ~ an email with attachments of Kitzhaber’s public remarks and his related talking points at a legislative preview session sponsored by the Associated Press on January 30, 2014. Kitzhaber’s opening remarks include statements on the progress of Cover Oregon and the talking points address how he should answer journalists’ questions regarding Cover Oregon. Of course, Kitzhaber’s public remarks were previously available, and the Associated Press contemporancously published news articles about the interviews.” Along with the Governor's press release, this “disclosure” appears to have been intended to tout the Governor's stated commitment to transparency, but all she has actually released is 35,000 “pages” of largely meaningless paper. Compliance with the Public Records laws is not a game, After waiting moze than six months and being told repeatedly by Mr. Isaak and your Assistant Attomey General, Jermaine Brown, that they would prioritize documents from the Hundredth Meridian Account responsive to our request, producing a single responsive email chain and another 1,000 pages of non-responsive filler is unacceptable. While Governor Brown makes public statements about her commitment to transparency, it appears the reality is a disturbing continuation of the same delay, denial, and destruction policies of the prior administration. In recent years, the State has earned a reputation for repeatedly 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 (finding the Oregon Department of Justice violated the Public Records Law in failing to respond to public records request in a timely fashion); Lane v. Kitzhaber, 3:12-ev-00138-ST (D. Or.) ? See, e.g, ttp:/koin.com/2014/01/30/kitzhaber-claims-he-was-misled-about-cover-orezon |itp://mwnewsnetwork.org/postikitzhaber-has-concerns-about-grocery-stores-liquor-salesORACLE’ (Docket Entry 323) (discovery sanctions imposed against State for failure to produce documents); ‘see also http://www. wweek.com/portland/article-24792-the whistleblower. html (noting that DAS employee Michael Rodgers was placed on administrative leave after taking steps to ensure the preservation of public record emails (which are the subject of Oracle’s public records requests) and further noting Rodger’s observation that “[hJe had seen the state repeatedly fail to tum over public records in a timely or complete fashion”) 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, As you know, the Publi 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 192.410(4)(a); see also Brown v. Guard Publ’g Co., 267 Or. App. 552, 563 (2014). When a public records request is made, the State has an obligation to respond “as soon as practicable and without unreasonable delay.” ORS 192.4402). Governor Brown and you have uttérly failed to meet this obligation. This produetion only further evidences your failure to comply with the OPRL. Governor Brown and your office are taking the position that you cannot produce the Hundredth Meridian emails because of former Governor Kitzhaber’s threat of litigation, you have withheld many of the Governor Kitzhaber emails citing a laundry list of exemptions, and you continue to unreasonably delay production of many other responsive records. ‘The State recently produced records’ in response to the request in my letter of September 28 that reveal the extent to which the State has abdicated its responsibility to Kitzhaber and his attomey, Janet Hoffman, These communications with Kitzhaber’s attorney detail that Kitzhaber gets to decide was constitutes a “public record” within the Hundredth Meridian Accounts, Kitzhaber gets to then “produce” batches to the State of what he decides are public records, and Kitzhaber decides when he will produce batches: * May 18: Kitzhaber’s lawyer writes an email titled “Document review” to Benjamin Souede, General Counsel at the Governor's office, arranging a phone call “to discuss protocol and specifies.” (First Production, at 78.) © May 19, 2015: Kitzhaber’s lawyer writes to the Governor’s lawyer, Misha Isaak: “After reviewing the contents of the email demanded by Oracle’s subpoena, we have determined that the email does not fit the statutory definition of a public record....” (First Production, at 80.) ‘There were two components to this production. The first was an email acknowledging that a recent production of public records to the Oregonian was responsive also to my request. That production consisted of a single pdf of 452 ppages. We cite emails from that production by referring to the “First Production” and citing the appropriate page number or range from the pdf document, which is available for download here: nips:/drive google com/file/d/0BzMvBq LbaUUN28VEloYnFIUIkiview. The second component was a production received by me on October 26. We cite emails from that release by referring to the “Second Production” and giving the file name of the native file produced to me.ORACLE June 1, 2015: Kitzhaber’s lawyer writes to Isaak: “[W]e’re currently uploading the documents to dropbox and should send you a link in a matter of minutes.” This is followed by an email from Hofiman’s office with a dropbox link for the “first production of Kitzhaber emails.” (First Production, at 138-41.) July 15, 2015: Kitzhaber’s lawyer writes to the State’s lawyers in the Oracle litigation, ‘Markowitz Herbold PC, about an upcoming call with Oracle and the arrangement “we initially spoke to Schwabe about... We will provide hundredth meridian docs and the ‘governor’s office will provide on our behalf Governor John Kitzhaber Gmail docs.” Isaak, the Governor's lawyer, is also CC’d on the chain. (First Production, at 242-43.) July 15, 2015: Kitzhaber’s lawyer writes to Isaak confirming that they will provide Isaak with the “public records” from the Hundredth Meridian Accounts next week. First Production, at 245.) July 11, 2015: Kitzhaber’s lawyer writes to Isaak regarding “litigation issues”: “Our [OJracle call is Thursday at 11. Our contact persons [sic] last name is Lee. It may make more sense for us to handle the call alone with an understanding you will need to follow up. Thoughts?” (First Production, at 235-239.) July 18, 2015: Kitzhaber’s lawyer writes to the State’s lawyer in the Oracle litigatio “Some problems with Oracle. J think I have a way around the impasse, But need your help.” (First Production, at 246.) July 19, 2015: A series of emails from Kitzhaber’s lawyer, Hoffman, to the State’s lawyer in the Oracle litigation on this date illustrate that a plan of Hoffman's devising for coordinating on the response to public records requests for the Hundredth Meridian Accounts is coalescing: ©. Inthe aftemoon, Hoffman writes the State’s lawyer, David Markowitz, to thank him for speaking with her on a Sunday and to note, “It is my understanding after talking with Misha [Isaak] yesterday that the state will not begin to review hundredthmeridian while our discussions are pending. (First Production, at 248,) ‘© That same evening, Hoffman sends Markowitz a long email outlining her plan for coordination with the State in responding to Oracle. She notes what she believes Oracle is trying, “[s}trategically,” to accomplish, and expresses her own “{s}trategic[]” concems. She then presents her proposal: “I believe the best way to handle the Oracle demand ... is to deputize in some fashion my firm to conduct the document review for the state.” (Second Production, “hundredthmeridian and governor.kitzhaber document review.”) July 24, 2015: Kitzhaber’s lawyer writes to Isaak, just five days after the July 19 agreement reflected above, to inform him that she had sent a thumb drive “containingORACLE public records from the jk hundredthmeridian@amail.com account” and expects to send another production set in the next two weeks. (First Production, at 249-52.) ‘© August 14, 2015: Kitzhaber’s lawyer writes to Isaak inquiring into how they should handle documents within their review of the Hundredth Meridian Accounts (responding to Congress's request) that “may” be privileged. She also mentions sending along a new production set that aftemoon. (First Production, at 297.) © August 24, 2015: Isaak replies to a question in a voicemail he received from Kitzhaber’s lawyer by saying that his office will take care of the redactions of personal contact information within the public records productions for them. (First Production, at 303- 307.) ‘These communications show an arrangement between former Governor Kitzhaber and the State by which Kitzhaber gets to decide what is and what is not a public record. Governor Brown's and your actions, along with this private arrangement with Kitzhaber, constitute a denial of Oracle's public records request by both a current and former elected official for purposes of ORS. 192.480. Oracle therefore has immediate recourse to the courts to vindicate its rights, and fully intends to pursue those rights. In addition, as the chief law enforcement officer for the State of Oregon, it is incumbent upon you to uphold the Public Records laws. Consequently, Oracle hereby submits the attached Petition for a Public Records Order to your office in accordance with ORS 192.450 due to the Office of the Govemor's denial of our April 6, 2015, records request. Sincerely, Dorian: ba Executive Vice President, General coal and Secretary DD: Ics ce: Assistant Attomey General Jermaine Brown Encl. i According to ORS 192.480, the procedure for challenging a denial from an elected official is to immediately file a lawsuit in court. Nonetheless, we are filing this petition according to ORS 192.450 out of an abundance of caution because the State has not been transparent about who or what agency denied Oracle’s request ‘or why the request was denied. Further, our interest is simply in disclosure, and thus, we would like to give your office an opportunity to ensure compliance with the law.