It seems self-evident that the entire process of making new laws should be open to the public. Legislating is inherently of public interest - actions by government to tax, mandate, restrict or otherwise exert control over its constituents should be something that those constituents can weigh in on from the very start. But for reasons that remain unclear, that's not the tack that Gov. Kate Brown's administration is taking.

Contrary to previous years, the state recently denied a Portland attorney's request for documents showing the 234 proposals for bills that the governor's office is sending on for legislative consideration. As The Portland Tribune's Paris Achen reported, attorney Gregory Chaimov has routinely received copies of the documents - in which state agencies outline the problem they want to solve and their proposed fix - since 2010. Chaimov uses the information to advise and assist clients who may be affected by such proposals.

This time, however, the Oregon Department of Administrative Services refused to release the forms, claiming they were protected by attorney-client privilege - an interpretation backed by Oregon Attorney General Ellen Rosenblum. The forms will be released only after the Office of Legislative Counsel, which drafts bills for consideration by the Legislature, submits the written proposals to the governor's office for approval - by the end of November, weeks after Brown's tight gubernatorial race with challenger Knute Buehler is decided.

Legally, there are a couple problems with the state's position, according to Chaimov's attorney John DiLorenzo, who is suing to force the state to release the documents. Bill drafting services by the Office of Legislative Counsel aren't legal services protected by attorney-client privilege, DiLorenzo maintains. The Legislative Counsel may only represent the Legislature. Allowing the Legislative Counsel to serve as the attorney for the state agencies that make up the executive branch would violate the Oregon Constitution's separation of powers clause, he told The Oregonian/OregonLive Editorial Board.

Now it's worth pointing out that Chaimov is not just any Portland attorney. He served as the legislative counsel from 1998 until 2004. So, he intimately knows the role of the legislative counsel and whom the office serves. It's also worth noting that the current legislative counsel, Dexter Johnson, declined to comment on whether he believes that drafting bills for executive branch proposals is a service protected by attorney-client privilege.

But there are other aspects that should trouble Oregonians. As Achen wrote, the forms now warn that "Although it is expected that agencies will have discussed legislative concept ideas with stakeholders, agencies are directed to treat this document as confidential and privileged and, accordingly, not to share the text of this form outside of state government before legislation is drafted and finalized."

In other words, some select members of the public - those "stakeholders" deemed relevant by state agencies - have been privy to the legislative ideas that are outlined in the documents that the state refuses to disclose. That suggests those concepts are not in fact confidential, a critical component for attorney-client privilege. And more important, there's the inherent unfairness of allowing favored "stakeholders" to know what's on deck for the coming legislative session while keeping others in the dark as long as possible.

Department of Administrative Services spokeswoman Liz Craig claims there's no change in policy, despite the fact that the state never denied Chaimov access to the documents in the past. She said the state agencies wanted to bring their practices in line with the Legislature, which has the authority to exert privilege over its work with Legislative Counsel - though lawmakers often choose not to. But this is not a compelling reason to hide documents, especially when compared with the benefit of telling the public what state agencies and the governor are teeing up for 2019.

The motivation for the refusal to disclose these forms may or may not be the pending election. It may or may not be a housekeeping move. But one thing is clear: It's another disappointing stand by a governor who pledged transparency from Day One. Brown should direct the Department of Administrative Services to release the documents and accept the scrutiny.

- Helen Jung for The Oregonian/OregonLive Editorial Board

Oregonian editorials

Editorials reflect the collective opinion of The Oregonian/OregonLive editorial board, which operates independently of the newsroom. Members of the editorial board are Laura Gunderson, Helen Jung, Therese Bottomly and John Maher.

Members of the board meet regularly to determine our institutional stance on issues of the day. We publish editorials when we believe our unique perspective can lend clarity and influence an upcoming decision of great public interest. Editorials are opinion pieces and therefore different from news articles. However, editorials are reported and written by either Laura Gunderson or Helen Jung.

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