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State Sunshine Laws Promise More Transparency

Ordinarily, a person’s medical records ought to be off limits to the public. On that, everyone agrees: The journalist who requested them, the state agencies who fought to keep them confidential, and the Oregon deputy attorney general (AG) who ordered the most relevant records disclosed, explaining: “This is a unique case.”
September 6, 2017

Ordinarily, a person’s medical records ought to be off limits to the public. On that, everyone agrees: The journalist who requested them, the state agencies who fought to keep them confidential, and the Oregon deputy attorney general (AG) who ordered the most relevant records disclosed, explaining: “This is a unique case.”

The records relate to Anthony Montwheeler, who was released from state psychiatric custody late last year. Less than a month later, Montwheeler was charged with kidnapping and stabbing to death his ex-wife and killing a Vale, Oregon, man in a car crash while eluding police. At the December 2016 public hearing that led to his discharge, Montwheeler testified he had faked mental illness 20 years earlier to avoid prison for kidnapping and other crimes. Oregon State Hospital (OSH) staff agreed that he probably never had a mental illness, although they thought him dangerous. Les Zaitz, a retired Oregonian reporter who recently became publisher and editor of the Malheur Enterprise, wrote the story of what happened, using the hearing’s audiotape and exhibit list, as well as the discharge order.

The next question was: How could a person feign mental illness for 20 years and then be released back into the community, despite being considered a threat? To help answer that, Zaitz had asked for the exhibits, including the mental health assessments, considered at the discharge hearing held by the Oregon Psychiatric Security Review Board (PSRB). He also directed a request to the Oregon Health Authority (OHA), the agency with oversight for the State Hospital.

Both agencies disagreed with the AG’s assessment that public interest outweighed health privacy. Keen to defend patient-provider confidentiality, the PSRB sued Zaitz in March to prevent execution of the order. The unusual move drew national attention to the public safety questions posed by Montwheeler’s release. PSRB dropped the suit in April after the governor intervened.

In a less direct approach, the House Health Care Committee rushed through a proposed statutory exemption to the state public records law for medical records provided to the state PSRB. The bill was requested by the OHA, Zaitz reported in a story that ran in both the Enterprise and The Oregonian.

According to testimony, the bill was meant to resolve “ambiguity and confusion” from a recent appellate opinion about HIPAA and patients’ medical records in public agencies, covered in another Lund Report story.

After media coverage, House democratic leadership ordered the bill back to the Committee, where it effectively died.

Public Record Reforms

This disclosure tussle may have been the most extreme case in recent years of clashes and complaints about public records and meetings in Oregon related to healthcare. Interestingly, it occurred against a backdrop of broad new reforms in the public records laws that promise greater government transparency.

The state public records law reforms came in three major bills, several in the final days of the 2017 legislative session. In some of the highlights, they establish:

  • Clear timelines requiring agencies to respond to public records requests and creation of an online catalogue of all public records exemptions and the affected agencies (SB 481);
  • A public records advocate to mediate disputes and suggest process improvements, as well as to provide public records training for executive branch agencies to understand what can and cannot be disclosed (SB 106);
  • A new Oregon Sunshine Committee to review all existing public records exemptions and report recommended changes to a Legislative Counsel Committee subcommittee (HB 2101); and
  • Open Government Impact Statements for bills moving through the Legislature, an early-warning system for any proposed bill with the potential to close off public access to information (such as the attempt to block the Zaitz request) (HB 2101).

A fourth bill blocks state agencies from using proprietary databases as a reason not to release public information by establishing an open data standard and a new position of Chief Data Officer (HB 3361).

"While none [of the bills] is huge, add it all up, and it may be the most momentous year for transparency since the public records law was passed [44 years ago],” said Portland Tribune reporter Nick Budnick, who volunteers for the Oregon Territory chapter of the Society of Professional Journalists (SPJ), which lobbied in favor of the public record reform bills.

“We’ve made more strides this year than have been made since 1973, when the public records law was first passed into law,” agreed Michael Kron, special counsel to the Office of the Oregon Attorney General and point person on public records. “There is work to be done, [such as] the cost of obtaining public records, which can be high in Oregon.”

The public records law reforms have broad-based political support. “It is significant in the macro sense, in that transparency had a lot of parents in [the 2017] legislative session, which is quite unusual,” said Zaitz, who is on the Oregon SPJ Sunshine Committee and is considered the dean of public records among Oregon journalists. “Public records are just a device to examine what the government is doing,” said Zaitz, who applauded the political weight behind greater government transparency. Zaitz looks forward to a net impact of better understanding, fewer disputes, and quicker resolutions in day-to-day public records requests.

Healthcare Transparency Lags

Despite these reforms, specific transparency efforts in healthcare have had more mixed results.

  • In one lost battle, the governing boards of CCOs will not be required to abide by the public meeting laws after all, despite the best efforts of Rep. Mitch Greenlick, chair of the House Health Care Committee. CCOs provide care for 1 million Oregon Health Plan members in the expanded Medicaid program. “These CCOs are creatures of the state and are fully funded by [$5 billion annually of] taxpayer money,” Greenlick argued in his May 7 newsletter. “They must do their business in public.”
  •  In June, CCO Oregon, an independent non-profit association, chided the OHA for a “lack of transparency” in implementing recommendations of the March 2017 Behavioral Health Collaborative, citing no notice of public meetings, no posted agendas, and no opportunity for public comment.
  • FamilyCare Health, the state’s second-largest CCO serving 115,000 Oregon Health Plan members, has sought rate-setting data from the OHA to explain why it receives 17 percent less per Medicaid member than its competitor, HealthShare, despite serving what it calls a similar population. (Meanwhile, the state has countered by arguing that FamilyCare was overpaid by $55 million, and that its payments are based on differences in population characteristics across CCOs.) Its latest lawsuit against the OHA is wending its way through the courts.

FamilyCare helped craft SB 233 in an unsuccessful bid to make prospective changes in rate-setting transparency, said FamilyCare spokesperson Jack Coleman. In a new plot twist, a secret OHA communications plan intended to undermine FamilyCare with legislators, reported Budnick. He received 26 pages of emails with massive redactions, with OHA citing pending litigation. In a public records request, The Lund Report received a full copy of the communications plan. OHA spokesperson Robb Cowie contends OHA’s rate-setting process with CCOs is transparent and collaborative.

Right to Know

The Oregon public records and meetings law assumes government records are public information, and exceptions should be narrowly defined and only permitted where there is an overwhelming public interest in maintaining confidentiality.

“Put simply, these laws establish a general expectation that Oregon’s government will be transparent to its people,” according to an introduction by Oregon AG Ellen Rosenblum. “Government records are available to the public, and governing bodies must conduct deliberations and make decisions in the open.” She added, “Transparency is vital to a healthy democracy. Public scrutiny helps ensure that government spends tax dollars wisely and works for the benefit of the people.”

The Lund Report makes extensive use of state public records to uncover details about healthcare industry finances and operations. “In our recurring stories about hospital profits, we draw on data made public by the OHA,” wrote Courtney Sherwood, editor of The Lund Report, in an email. “We used tax documents filed with the state Charitable Activities Section to write about the executive pay of hospital leaders and others involved in healthcare nonprofits.”

Sherwood noted that Oregon Health & Science University (OHSU) originally turned down requests for executive compensation figures for its leaders, citing an exemption in state law that allows it to keep private data that would put it at a competitive disadvantage if made public. When The Lund Report challenged this rejection, showing that other hospitals did make this available—so OHSU would not be at a competitive disadvantage by sharing this information—the hospital/university system released the requested salary information.

Exemption by Exemption

A particular thorn in the side of sunshine advocates has been the growing number of exemptions. “Every exemption has a political patron,” Zaitz said.

Take the law (HB 2131) protecting the whereabouts of bedbugs from public scrutiny, an example raised by Lee van der Voo, managing director of InvestigateWest, in her monthly newsletter, Redacted. But the data are not even there to make secret, because pesticide companies do not have to report bed bug exterminations at all, she discovered. “No other state offers confidentiality around bedbug infestations,” she wrote. “And Oregon doesn’t protect its residents or guests against them in the first place. The state doesn’t require landlords, hotel owners, bed and breakfasts or any other business that offers overnight accommodations (save, ironically, for campgrounds) to keep those facilities free of bedbugs, as other states do."

About three years ago, InvestigateWest put all the exemptions—then numbering 478—in an easily searchable database. A search there under “medical” turns up 52 possible exemptions, such as the OHSU medical researcher records exemption, enacted in response to threats by animal rights activists and intended to protect the safety of researchers working with primates. It also gives primate suppliers a pass on public scrutiny, wrote van der Voo, using the example of the accidental discovery that an accredited supplier to OHSU was once fined and sentenced for smuggling orangutans.

Thanks to SB 481, the fuller list of more than 550 current exemptions to the public records will be organized in a new and more extensive user-friendly Web site. Meanwhile, the new Oregon Sunshine Committee will be formed to review each exemption, probably beginning with those related to federal law, such the Health Insurance Portability and Accountability Act (HIPAA), said Rep. John Huffman, who led the charge on the Sunshine Committee review bill (HB 2101). Obsolete exemptions will go into a bill for the next legislative session to repeal.

Public Record Changes

The 2017 changes in the public records law have their roots in extensive statewide outreach beginning in 2010 with AG John Kroger, and were boosted in a big way from the AG Public Records Law Reform Task Force convened two years ago by Rosenblum. Task force member Huffman describes the trio of public records reform bills as a three-legged stool, with one directly from the AG task force (SB 481), one from the legislature (HB 2101), and one from the governor (SB 106), who staked out transparency as a key legislative agenda item.

Huffman’s bill started as a proposal to sunset all existing exemptions. The final reflected a consensus that “a number of exemptions are good and need to be there for a variety of reasons,” he said.

In a key forward-looking provision, a subcommittee of the Legislative Counsel will draft an open government statement for any proposed bills that attempts to exempt public records. The statement will let lawmakers know the impact of disclosure or non-disclosure. The bill came down the wire, passed during the last few days of the session. Meanwhile, Huffman had personally intervened to caution house leadership to slow down and take a closer look at the attempted OHA exemption to the Zaitz request.

“Exemptions are a necessary part of the law,” said Budnick, who testified in favor of adding the Sunshine Committee requirement to HB2101 to give the public a voice in the process. “In many cases, it’s appropriate. Healthcare is an arena that has special limitations, due to HIPAA, personal privacy, and medical records. That’s just reality. I don’t know any zealots who are part of the Society of Professional Journalists who think every piece of information everywhere should be public. Generally speaking, in many cases, it’s appropriate to apply a public interest test.”

In fact, public interest was the key factor cited in the Oregon AG order to release to Zaitz many—but not all—of the information in Montwheeler’s medical records used as exhibits at the December PSRB discharge hearing. “The public interest, by clear and convincing evidence, requires disclosure,” said the March 15, 2017, order signed by Deputy Attorney General Frederick Boss.

In a March 21 follow-up letter with a more thorough explanation, Boss explained that the order specified release of only those “exhibits [that] were used to convince PSRB that Montwheeler did not suffer from a mental disease.” The AG denied part of Zaitz’s petition, judging that access to Montwheeler’s physical health details and intimate details about the lives of his family members constituted an unreasonable invasion of privacy and were exempt from disclosure under Oregon public records law.

Carol can be reached at [email protected]