EDITORIAL: State should release report about West Campbell fire

Published 12:30 pm Wednesday, April 12, 2023

Oregon’s public records law has too many exemptions that give government officials the legal authority to thwart the ostensible purpose of the law.

Which, as its name implies, is to ensure that citizens can review records generated on their behalf and, in most cases, with some of their tax dollars.

An especially annoying example of these exemptions, and one that officials too often rely on to avoid divulging information to the public, is ORS 192.345(1). That statute allows officials to exempt from public disclosure records “pertaining to litigation” if the agency “shows that such litigation is reasonably likely to occur.”

To be clear, there needn’t be any actual litigation. The mere likelihood that a lawsuit might be filed is sufficient, under the law, to justify concealing records from public purview.

This exemption is contrary to the spirit of the public records law.

After all, if a record pertains to potential litigation, it probably involves a subject that’s more likely to be of widespread public interest than the mundane records that the government produces so prodigiously.

It’s reasonable, to be sure, to give the government some flexibility in when it discloses public records. The public interest isn’t served if, for instance, the release of records could make it more difficult for a prosecutor to obtain a conviction in a criminal case.

But government officials deploy the litigation exemption in plenty of instances that have nothing to do with criminal cases.

A current example is the human-caused West Campbell fire, which burned about 130 acres just west of Baker City on Oct. 6, 2022. The fire didn’t damage any buildings or cause any injuries, but its proximity to many homes near and in Baker City no doubt made some people nervous for a few hours on that warm early autumn afternoon.

The Oregon Department of Forestry investigated the cause of the fire, and the agency has completed its report, which identifies the party allegedly responsible for the fire. The state likely will try to recoup firefighting costs that were estimated earlier this year at nearly $100,000.

But according to an agency spokesperson, because this attempt to get compensation could result in litigation — the state could file a lawsuit against the person or people identified in the report as having started the fire — the Department of Forestry is withholding the report from the public.

The law, to be clear, does not mandate this. The litigation exemption is “conditional.” ORS 192.345 states that such records are exempt from disclosure “unless the public interest requires disclosure in the particular instance.”

It is in the public interest to release the investigation report for the West Campbell fire. Certainly local residents have an interest in the results of the investigation. They shouldn’t have to wait until the conclusion of litigation that might (or might not) be filed as a result of the investigation. That could take many months.

(The exemption to disclosure no longer applies if litigation has been concluded.)

The Baker City Herald has made a public records request for the report.