March 5, 2008 · Open government advocates received a disappointing setback last month when the Oregon Attorney General’s Office issued an opinion declaring that the state’s two largest public universities can keep sports broadcast and marketing rights contracts confidential under the state public records law.
The opinion, issued Feb. 25, held that the University of Oregon and Oregon State do not need to disclose the contracts because they’re considered “trade secrets,” which are exempt under Oregon’s public records law.
“[T]he public interest in maintaining the confidentiality of the redacted information outweighs the public interest in compelling its disclosure,” wrote Deputy Attorney General Peter Shepherd.
The nine-page opinion came in response to a petition from The Oregonian, after the two schools released past and present media marketing contracts with the guaranteed annual amounts each receives redacted.
“The state has an economic interest in maximizing payments made to its universities pursuant to sports marketing contracts,” Shepherd wrote. “In sum, would-be contractors who know exactly what the UO or OSU agreed to accept in the past might offer less than they otherwise would have offered.”
Open government advocates see the issue quite differently. Peter Scheer, executive director of the California First Amendment Coalition, said the basic concept behind keeping secret this type of public information is absurd.
“Most people would find it rather strange that their government could enter into a contract for a lot of money on their behalf and keep the information about that deal a secret,” Scheer said. “And, some might insist that even if it is a confidential contract that the state do what it can to release that information.”
Citing the “trade secrets” exemption raises concerns among advocates of open government because the University of Oregon had, prior to redacting the financial amounts of the requested contracts, released other financial amounts regarding marketing revenues for legislative purposes when it was seeking to build a new basketball arena.
This information, Scheer said, appears to be very similar to the information the university, as well as Oregon State, refused to release to The Oregonian.
“If they let out some information about supposedly confidential contracts but not other information,” Scheer said, “then that undercuts the legal claim that what they’re still holding on to is a trade secret.”
In response to such criticism, Shepherd said the attorney general’s office is only concerned with what the schools are legally allowed to do, which does include keeping the information private, even if they lawfully can choose to disclose it.
“The basic principle of Oregon’s public records law states that an agency can choose to release information even if it could have asserted an exemption,” Shepherd said.
Laurie Hieb, the executive director of the Oregon Newspapers Publishers Association, said that since the schools cited the “trade secrets” exemption, the only way to effectively get around this issue is to change the law. She also said that not knowing what it is about these contracts that make the government deem them “trade secrets” complicates the issue.
“This always sends a wave of fear through the media any time there are any issues like this,” Hieb said. “It’s ironic that it’s called a trade secret because the word ‘secret’ is definitely something that we work against having in government. It’s hard to make a judgment call if you don’t know, which is why we fight every day for open government.”