IN THE CIRCUITCOURT OF THE STATE OF...

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PAGE 1 - COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF PURSUANT TO ORS 192.480 AND 192.490

IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF MARION

ORACLE AMERICA, INC., a Delaware corporation,

Plaintiff,

v.

GOVERNOR KATE BROWN, in her official capacity as Governor for the State of Oregon,

Defendant.

)))))))))))))))

Case No. __________

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF PURSUANT TO ORS 192.480 AND 192.490

Prayer Amount: Declaratory and Injunctive Relief

Fee Authority: ORS 21.135(1), (2)(g)

CLAIM NOT SUBJECT TO MANDATORY ARBITRATION

Plaintiff Oracle America, Inc. alleges as follows:

INTRODUCTION

1.

Plaintiff Oracle America, Inc. (“Oracle”) brings this Complaint against defendant

Governor Kate Brown (“Governor Brown”) for injunctive and declaratory relief under Oregon’s

Public Records Law (“OPRL”), ORS 192.410, et seq. Governor Brown has failed to provide a

single public record from the state’s archive of the [email protected] and

[email protected] accounts in response to Oracle’s April 6, 2015 public records

request, relying instead on former Governor Kitzhaber to pass along what he determines to be

public records from his personal archive. In fact, Governor Brown has failed to even begin

review of the state archive of these accounts. Instead, she has made a private agreement with a

former government official to: (1) ignore her legal obligation to produce responsive public

records in the state’s archive of these accounts; (2) produce only documents currently in the

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possession of Kitzhaber that may or may not be similar to, or may or may not be full or partial

copies of the public records in the state’s archive; and (3) accept all determinations that

Kitzhaber makes regarding which similar documents or full or partial copies will be produced.

Governor Brown’s approach does not satisfy the OPRL’s requirement to produce all responsive,

non-exempt public records she possessed on April 6, 2015, when Oracle made its request.

Governor Brown’s refusal to produce public records from the state’s archive of the

[email protected] and [email protected] accounts is a denial of

Oracle’s April 6 request with respect to those records.

2.

The records in question include copies of emails sent to or from

[email protected] and [email protected] email accounts that Kitzhaber

used to conduct official state business during his tenure as Governor, in the possession of the

State of Oregon on or before the date of Oracle’s requests.1 These documents have been

archived on the state’s servers since, at the latest, June 2013 (the Hundredth Meridian Archive).

3.

Governor Brown does not dispute that the Hundredth Meridian Archive contains public

records or that such records have been preserved on state email servers and are within her

custody and control. To the contrary, lawyers for Governor Brown acknowledged that they have

possession of the Hundredth Meridian Archive, purported to accept Oracle’s request to prioritize

review and production of records Oracle requested from the Hundredth Meridian Archive, and

repeatedly assured Oracle of their intention to produce public records from the Hundredth

Meridian Archive to Oracle promptly.

1 Former Governor Kitzhaber also used another commercial email account to conduct state business: [email protected]. While Oracle’s Public Records Requests encompass public records from that account as well, Oracle prioritized production of the Hundredth Meridian Archive emails in discussions with the Governor’s Office. Oracle focuses on the failure to provide those documents here.

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4.

Despite these representations, Governor Brown has failed to produce any of these records

from the state-possessed Hundredth Meridian Archive in the nearly seven months since Oracle

requested them. In recent communications with Oracle, Governor Brown has expressly refused

to commit to producing any public records contained in the Hundredth Meridian Archive. She

has refused to even review those records as required by the OPRL.

5.

Governor Brown’s stated reason for refusing to produce or even review such records is

that Kitzhaber, through his attorney, has claimed that Governor Brown is in possession of the

Hundredth Meridian Archive “unlawfully” and Kitzhaber has threatened to sue the Governor if

she reviews or produces such emails. In the face of this threat, Governor Brown has abdicated

her responsibility to timely review and produce these public records.

6.

Instead, the Governor has attempted to construct what would be, at best, an alternative to

compliance with the OPRL. She has agreed to allow Kitzhaber to review his personal archive2

of emails from the Hundredth Meridian accounts and unilaterally determine what he thinks

should be produced in response to Oracle’s request. Governor Brown is allowing Kitzhaber to

provide the documents that he selects to the Governor’s Office. At that point, the Governor may

or may not forward those documents to Oracle in lieu of reviewing the public records from the

Hundredth Meridian Archive.3 In effect, Governor Brown has outsourced her duty to review and

2 The term “personal archive” refers to whatever collection of emails Kitzhaber is in fact reviewing, whether they are emails directly from his email accounts or copies of emails that the state had archived and then provided to him, or some other population of emails. Communications between Governor Brown and Kitzhaber reveal only that they have gone to pains to have a consistent story. For example, in an email sent only two months ago, Kitzhaber’s lawyer wrote to Governor Brown’s lawyer, “What is the first date you archived at att.net. This will help us to understand when the down load began and will also help us know if our sets are the same.” (Emphasis added.)3 Even within this proxy production, only two documents have been provided that were responsive to Oracle’s request.

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produce public records to a former politician who has a personal interest in keeping documents

out of the public eye.

7.

As a result of Governor Brown’s agreement with Kitzhaber, Governor Brown has

declined to produce any of the public records requested by Oracle within the Hundredth

Meridian Archive. This violates the OPRL, which requires her to respond to public record

requests “as soon as practicable and without unreasonable delay.” ORS 192.440. Oracle has

been denied access for nearly seven months, and continues to be denied access, to public records

it is legally entitled to receive.

8.

Oracle therefore seeks an order declaring that Governor Brown has violated the OPRL in

failing to timely respond and provide documents responsive to Oracle’s public records requests;

ordering Governor Brown to produce all documents responsive to Oracle’s public records

requests immediately and without further delay, including those from the Hundredth Meridian

Archive; and enjoining Governor Brown from further preventing Oracle from receiving

documents responsive to its public records requests.

PARTIES

9.

Oracle is a Delaware corporation lawfully registered to conduct business in the state of

Oregon. As such, Oracle is a “person” within the meaning of ORS 192.410(2).

10.

Governor Brown is the current governor for the state of Oregon. As such, she is a

“public body” and “state agency” under ORS 192.410, and an “elected official” within the

meaning of ORS 192.480.

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11.

Governor Brown maintains, cares for, or controls the Hundredth Meridian Archive.

The existence of the Hundredth Meridian Archive was first reported in February 2015. At that

time, the state’s Department of Administrative Services (“DAS”), which provides email hosting

services for the Governor, had possession on its servers of the Hundredth Meridian Archive. It

was around that time that then-Governor Kitzhaber requested that the Hundredth Meridian

Archive be deleted, a request with which DAS did not comply. Copies of the emails in the

Hundredth Meridian Archive were provided both to DAS personnel and to representatives from

within then-Governor Kitzhaber’s Office. Governor Brown is subject to a public records request

from Oracle that requires review of the Hundredth Meridian Archive.

JURISDICTION

12.

The Circuit Court for Marion County has subject matter jurisdiction over this lawsuit

pursuant to ORS 192.480 and 192.490. ORS 192.480 provides that when a person is denied the

right to receive a copy of a public record within the custody of an elected official, or in the

custody of any other person but as to which an elected official claims the right to withhold

disclosure, such person may institute proceedings for injunctive or declaratory relief in the

appropriate court. ORS 192.490 provides that the court has jurisdiction in such suits to enjoin

the public body from withholding records and to order the production of any records improperly

withheld from the person seeking disclosure.

13.

Pursuant to ORS 192.450(2), the appropriate venue for this action, arising under

ORS 192.480, is the Circuit Court for Marion County.

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PUBLIC RECORDS CONTAINED IN THE HUNDREDTH MERIDIAN ARCHIVE

14.

On February 13, 2015, Kitzhaber resigned from his position as Governor, amidst a

criminal investigation and growing influence peddling scandal involving his fiancée, Cylvia

Hayes.

15.

In or around February 2015, Oracle learned that Kitzhaber used

[email protected] and [email protected] to conduct official state

business, including official state business related to the Oregon Health Insurance Exchange

(“Oregon HIX”), and that these emails had been archived on state servers. Oracle learned these

facts after a state employee—subsequently identified as Interim Administrator for the Enterprise

Technology Services division of DAS, Michael Rodgers (“Rodgers”)—leaked emails from the

Hundredth Meridian Archive to Willamette Week.

16.

Rodgers’ stated reason for leaking the emails is that Kitzhaber staffers asked state

employees to destroy the emails. According to Rodgers, destruction of the emails would have

been a crime because ORS 162.305 prohibits tampering with public records.

17.

The Hundredth Meridian Archive includes numerous emails containing information

relating to the conduct of the public’s business. Such emails are public records within the

meaning of 192.410(4)(a).

18.

Governor Brown, directly or indirectly, creates, maintains, cares for or controls these

public records and thus is a custodian within the OPRL.

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19.

Emails contained in the Hundredth Meridian Archive include emails that are highly

relevant to pending litigation, initiated at Kitzhaber’s urging, against Oracle by the State of

Oregon, Rosenblum et. al. v. Oracle America, Inc., Marion County Case No. 14C20043

(the “Marion County case”), in which Oregon seeks billions of dollars from Oracle related to

Oracle’s work helping Oregon to develop the Oregon HIX. In particular, the emails are likely to

be relevant to Oracle’s defenses and to show, among other things, that:

Kitzhaber was concerned about political fallout during his reelection campaign and

vested his reelection campaign consultants, including Patricia McCaig (“McCaig”), with

decision-making authority over the Oregon HIX;

McCaig and other campaign consultants oversaw the decision to shut down the Oregon

HIX;

McCaig and other campaign consultants drove the decision to sue Oracle and to launch a

media campaign to mislead the public by suggesting that problems with the Oregon HIX

were Oracle’s fault, and not that of Cover Oregon and the Kitzhaber Administration; and

McCaig and other campaign advisors’ decisions with regard to the Oregon HIX were

based on polling results and perceptions of how issues associated with the Oregon HIX

might affect Kitzhaber’s reelection, rather than an objective assessment of Oracle’s

technology or the best interests of the people of Oregon.

ORACLE’S PUBLIC RECORD REQUESTS

20.

Under the OPRL, every person has a right to inspect public records of any public body of

the State of Oregon, unless certain narrow exemptions apply. ORS 192.420(1). For these

reasons, even when a lawsuit is pending, a party to the case may seek disclosure of public

records, ORS 192.420(2), and no public body of the state, including Governor Brown, may

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refuse to disclose public records to a party to pending litigation merely because there is litigation

pending. ORS 192.501(1).

21.

The OPRL requires a public body, including Governor Brown, to respond to public

records requests “as soon as practicable and without unreasonable delay.” ORS 192.440.

22.

Beginning at least as early as February 2015, numerous media organizations requested

public records contained in the Hundredth Meridian Archive. For example, on February 12,

2015, Hannah Hoffman of the Statesman Journal requested “[a] log of all emails belonging to

Gov. John Kitzhaber's personal email account or accounts that have been contained on the state

server and were considered for deletion by the Department of Administrative Services in 2015.”

Similarly, Kirk Johnson of the New York Times requested “[a]ll Governor’s Office emails from

the Kitzhaber administration maintained by the Department of Administrative Services

regardless of the address or domain name” on February 19, 2015.

23.

On February 27, 2015, Oracle requested copies of responses to these requests. Oracle

submitted a “me too” public records request for “[a]ll records that have been provided to any

Oregon Public Records Law requester since October 1, 2013 based on requests related to former

Governor Kitzhaber, Cover Oregon, Oracle, Kevin Looper, Patricia McCaig, Scott Nelson, Tim

Raphael, Mark Weiner, Mike Bonetto, or Cylvia Hayes.” Oracle noted that there was a backlog

of outstanding requests on these issues and requested copies of records produced in the future in

response to requests pending as of February 27, 2015.

24.

On April 6, 2015, Oracle sent a public records request to the Office of the Governor and

other state agencies including DAS, OHA, DOJ, and Cover Oregon. The request to the

Governor’s Office is attached as Exhibit 1. The request seeks:

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1. All records since October 1, 2013 related to, in whole or in part(including having as a sender or recipient): Patricia McCaig, KevinLooper, Mark Wiener, or the “Kitzhaber for Governor” campaign.

2. All records since January 1, 2014 related to, in whole or in part(including having as a sender or recipient): Tim Raphael and ScottNelson.

3. All records since October 1, 2013 related to, in whole or in part(including having as a sender or recipient), both: (1) formerGovernor John Kitzhaber or Mike Bonetto; and (2) Cover Oregon,the Oregon Health Authority, Oracle, the Oregon health insuranceexchange (“HIX”), or the Federal Government health insuranceexchange (“HIX”) or Federally Facilitated Marketplace (“FFM”).

4. All records since October 1, 2013 related to, in whole or in part,the launch or readiness to launch of the Oregon HIX, includingtesting, cost/requirements to complete, or other assessments of thetechnical performance of the Oregon HIX, including recordsregarding the Technology Options Workgroup.

25.

On June 1, 2015, Governor Brown’s Deputy General Counsel Misha Isaak first

communicated with Oracle regarding the April 6, 2015 request. He informed Oracle that its

public records requests were being processed. In addition, Mr. Isaak produced a single email

chain, dated February 6 and 7, 2014, which reflected communications between Kitzhaber and his

campaign consultants. It now appears that this email chain was not produced from the

Hundredth Meridian Archive, but was provided to Mr. Isaak by Kitzhaber from Kitzhaber’s

personal archive.

26.

Governor Brown passed along this single email chain only after Oracle subpoenaed

Kitzhaber for the document and Oracle was preparing to litigate a motion to quash filed by

Kitzhaber. Mr. Isaak explained that he produced the email chain in the “interest of efficiency,”

saying, “It has come to my attention that an email exchange between former Governor John A.

Kitzhaber and Patricia McCaig, as well as the associated email chain, is the subject both of a

subpoena to Governor Kitzhaber and of a motion to quash by his counsel.” He further stated,

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“I have possession of this email exchange, which is responsive to your client’s public records

request.” This email chain and other chains obtained by Oracle through litigation confirm that

Kitzhaber used [email protected] regularly to discuss state business, including

the Oregon HIX. The copies of these chains contained in the Hundredth Meridian Archive, as

well as any other copies or related chains in the state’s possession, are therefore public records in

the state’s possession.

27.

Oracle subsequently learned that Mr. Isaak received the document from Kitzhaber and

that Kitzhaber’s attorney took the position that it was not a public record even though it clearly

involved discussion of public business. On May 19, 2015, Kitzhaber’s lawyer wrote to

Mr. 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 * * *.” Then, on

June 1, 2015, Kitzhaber’s lawyer wrote to Mr. Isaak: “[W]e’re currently uploading the

documents to dropbox and should send you a link in a matter of minutes.” This was followed by

an email from Kitzhaber’s lawyer’s office, with a dropbox link for the “first production of

Kitzhaber emails.” In a recent filing in Rosenblum, et al. v. Oracle, et al., the state described the

arrangement: “The Governor’s Office produced the email chain from documents provided to the

Governor’s Office by former-Governor Kitzhaber’s counsel. (McIntire Decl. Ex. 5 ¶ 2.) The

State did not review or retrieve it from the archived Private Gmail Account.” (Id.; Plaintiff’s

Memorandum in Opposition to Oracle’s Motion to Compel Production of Documents from

Plaintiffs at 8:16-18.)

28.

Oracle spent the next several months attempting to cooperate with Governor Brown and

the state regarding its public records requests, including through communications with both DOJ

Assistant Attorney General Jermaine Brown (“AAG Brown”) and Mr. Isaak.

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29.

On or about June 25, 2015, in an effort to resolve delay in producing public records in

response to Oracle’s public records requests, Oracle asked for prioritized production of public

records contained in the Hundredth Meridian Archive. In a letter to AAG Brown, Mr. Edward

Siskel, counsel for Oracle, stated, “As recently discussed, we ask that DAS and OHA prioritize

production of relevant documents from former Governor Kitzhaber's email account,

[email protected].”

30.

Subsequent to Oracle’s request, Mr. Isaak represented to Oracle that Governor Brown

was going to produce emails from the Hundredth Meridian Archive promptly. During a phone

call on July 2, 2015, AAG Brown and Mr. Isaak stated that the Hundredth Meridian emails

would be addressed within Oracle’s public records request to the Governor’s Office. Mr. Isaak

stated that Governor Brown was close to beginning review and production of such documents,

and Mr. Isaak promised to provide a written estimate within a week of the cost and time to

produce them. Mr. Isaak also stated that any delay in the production of such documents had

nothing to do with the fact that the state and Oracle were involved in the Marion County case.

31.

A week later, by letter dated July 9, 2015, AAG Brown informed Oracle that that the

“Governor’s Office expects to begin a rolling production of emails from [the two Gmail accounts

used by Dr. Kitzhaber] by September 1, 2015.”

32.

A week later, on July 16, 2015, Mr. Isaak responded by email to Oracle’s inquiry

regarding whether the Hundredth Meridian Archive emails had been gathered by stating: “[W]e

will begin reviewing the jk.hundredthmeridian emails next week.”

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33.

On August 28, 2015, AAG Brown informed Oracle that the date of production of the

Gmail accounts was extended one week, from September 1 to September 8, 2015.

34.

On September 8, 2015—after months of communications regarding producing documents

from the Hundredth Meridian Archive—Oracle received a document production from Governor

Brown. The production included some public records from Governor Kitzhaber’s personal

archive of his email account, but did not include a single public record from the Hundredth

Meridian Archive. This was directly contrary to Oracle’s request that Governor Brown prioritize

public records from the Hundredth Meridian Archive. It was directly contrary to Mr. Isaak’s

representations that Governor Brown was reviewing such emails and that they would be included

in the production on September 8. Mr. Isaak provided no explanation for this failure in his

transmission email to Oracle’s counsel on September 8.

35.

Moreover, even with regard to the [email protected] account, Governor

Brown withheld public records citing the following exemptions: “192.502(1) (internal advisory

communications); 192.502(2) (information of a personal nature); 192.502(4) (information

submitted to the Governor’s Office in confidence); 192.502(9) (which incorporates the privilege

for attorney-client confidential communications); and/or ORS 192.410(4) (does not meet the

definition of a public record).” Governor Brown did not provide an exemption log or any other

information that would allow Oracle to discern whether the cited exemptions applied to any

particular public record.

36.

As noted, Governor Brown failed to produce a single public record from the Hundredth

Meridian Archive in the September 8 production, and Mr. Isaak provided no explanation for this

failure in his transmission email on September 8. Governor Brown’s website included a notice

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accompanying the release of these same documents, stating: “The

[email protected] email address also used by former Governor Kitzhaber is

presently the subject of litigation; emails from this account are not included in this production.”

Governor Brown’s website did not identify “the pending litigation” or explain how any such

litigation would justify delaying production of these public records.

37.

On September 18, 2015, AAG Brown sent a letter in which he stated that, even though

Kitzhaber acknowledged that the Hundredth Meridian Archive contains public records under

ORS 192.410(4), Kitzhaber had threatened to sue Governor Brown if she “independently gathers

and reviews these emails.” Mr. Brown’s letter disclosed that Governor Brown had not reviewed

a single document in the Hundredth Meridian Archive, and would not do so.

38.

The letter revealed that, in lieu of reviewing the Hundredth Meridian Archive and

producing non-exempt relevant public records, Governor Brown was merely going to forward

copies of Hundredth Meridian emails provided by Kitzhaber from his personal archive.

Kitzhaber would unilaterally determine what could be reviewed and released as a public record.

The letter revealed that Governor Brown was refusing to provide Oracle with the requested

public records, or even ensuring that Oracle would receive a proxy production from Kitzhaber

that was complete or forwarded without further unreasonable delay.

39.

The same letter conceded that former Governor Kitzhaber had already identified “fewer

than 1,000 emails that constitute public records” from within his personal archive. The letter did

not explain why Governor Brown had not produced even these documents that Kitzhaber had

apparently already approved for release.

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40.

AAG Brown’s letter concluded that, “[t]hrough this procedure, it is [his] expectation that

the Office of the Governor will produce substantially all of the non-exempt public records in its

possession associated with the [email protected] account.” (Emphasis added.)

Thus, Governor Brown responded that her office will not produce the public records from the

Hundredth Meridian Archive in her possession, nor will it even produce all public records in

Kitzhaber’s possession under its unprecedented proxy approach to complying with OPRL. And

Governor Brown would not commit to any definite time frame for producing even those

documents that Kitzhaber unilaterally decides may be produced. Governor Brown has abdicated

her obligation under the OPRL to Kitzhaber, who now is the one to decide what is and what is

not a public record and when any records will be produced.

41.

On September 29, 2015, Oracle wrote to the Attorney General, in her capacity as counsel

for the Governor, describing Governor Brown’s repeated failures to meet her obligations under

the OPRL and notifying the Attorney General and Governor that it would file a lawsuit to

enforce its rights under the OPRL if the records were not produced as requested within seven

days.

42.

On October 5, 2015—the sixth day after Oracle wrote to the Attorney General—

Governor Brown passed on to Oracle approximately 1,000 pages provided to her by Kitzhaber.

This production appears to be designed to allow Governor Brown to create the impression that

she is complying with the OPRL when in fact she has neither reviewed nor produced even a

single record from the state’s Hundredth Meridian Archive, relying instead on her attempted

proxy: selected records provided to her by Kitzhaber from his own personal archive. Further, the

entire production contains only one document that discusses the Oregon HIX. In fact, nearly half

of the pages were reproductions from two books—“Everything We Know About Leadership Is

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Less Than We Still Have To Learn,” by Jeff Golden, and “Government That Works: The Results

Revolution in the States,” by John M. Bernard.

43.

In an email transmitting the production of October 5, 2015, the Governor claimed that an

unspecified number of records were exempt from disclosure under one or more of ten different

exemptions. The Governor did not specify which exemption applied to which document that she

intended to withhold from disclosure as required by the OPRL. These claims of exemption

constitute a further denial of access even to the proxy copies of those records requested by

Oracle.

44.

Governor Brown’s delay and abdication of her obligation under the OPRL is further

highlighted by the recent revelation that the DOJ and Governor Brown have known, since at least

February 19, 2015, that Kitzhaber claimed that the state, including Governor Brown, was in

wrongful possession of the Hundredth Meridian Archive and insisted that neither Governor

Brown nor any other public body of the state should review them until Kitzhaber’s attorneys had

an opportunity to review them first.

45.

This revelation demonstrates that Governor Brown never prioritized the review of the

Hundredth Meridian Archive despite Deputy General Counsel Isaak’s assurances that she would,

assurances upon which Oracle relied for months while awaiting a response to its public records

request. It further demonstrates that Governor Brown never was close to beginning review and

production of such documents, as Mr. Isaak said she was. It shows that Mr. Isaak’s assertion on

July 16, 2015, “[W]e will begin reviewing the jk.hundredthmeridian emails next week,” was not

true.

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46.

Governor Brown’s unreasonable delay and abdication of her obligations under the OPRL

were laid out in detail when the state produced records in October in response to a separate

public records request showing the state’s private arrangement with Kitzhaber and his attorney.4

These communications with Kitzhaber’s attorney detail Governor Brown’s attempt at a proxy

arrangement in which Governor Brown will not comply with her obligation to review and

produce public records within the Hundredth Meridian Archive, but will instead merely forward

whichever documents Kitzhaber decides should be produced from his personal archive of the

[email protected] and [email protected] accounts. And for even that

proxy production, Kitzhaber decides what constitutes a “public record;” Kitzhaber decides when

he will produce these batches of documents and what will be included in the batches he gives to

Governor Brown; and then Governor Brown may or may not forward Kitzhaber’s chosen

documents to Oracle, apparently intending to withhold even some of these proxy documents

based on unsubstantiated claims of exemption.

47.

The released records include a series of emails on July 19, 2015, from Kitzhaber’s

lawyer, Janet Hoffman, to the state’s lawyer in the Oracle litigation that illustrate Hoffman’s plan

for coordinating the response to public records requests for the Hundredth Meridian emails. Five

days later, on July 24, 2015, Kitzhaber’s lawyer wrote to Mr. Isaak, counsel to Governor Brown,

to inform him that she had sent a thumb drive “containing public records from the

[email protected] account” and that she expected to send another production set

in the next two weeks.

4 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 Oracle’s records request. That production consisted of a single pdf of 452 pages. The second component was a production received by Oracle on October 26. That production consisted of approximately 100 native emails.

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48.

Many more emails reveal the extent of this arrangement between former Governor

Kitzhaber and the state by which the state will not review or produce documents from the

Hundredth Meridian Archive, and instead Kitzhaber will feed a selected portion of his own

documents to Governor Brown to produce:

May 18, 2015: 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 specifics.”

May 19, 2015: Kitzhaber’s lawyer writes to Mr. 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 * * *.”

June 1, 2015: Kitzhaber’s lawyer writes to Mr. 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 Hoffman’s office with a dropbox link for the “first production of Kitzhaber emails.”

July 11, 2015: Kitzhaber’s lawyer writes to Mr. Isaak regarding “litigation issues:” “Our [O]racle call is Thursday at 11 * * *. It may make more sense for us to handle the call alone with an understanding you will need to follow up. Thoughts?”

July 15, 2015: Kitzhaber’s lawyer writes to Mr. Isaak confirming that they will provide Mr. Isaak with “public records” next week.

July 18, 2015: Kitzhaber’s lawyer writes to the state’s lawyer in the Oracle litigation: “Some problems with Oracle. I think I have a way around the impasse. But need yourhelp.”

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 the response to public records requests for the Hundredth Meridian emails is coalescing:

o In the afternoon, 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.”

o 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

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Oracle is trying, “[s]trategically,” to accomplish, and expresses her own “[s]trategic[]” concerns. 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.”

July 24, 2015: Kitzhaber’s lawyer writes to Mr. Isaak, just five days after the July 19 agreement reflected above, to inform him that she had sent a thumb drive “containing public records from the [email protected] account” and expects to send another production set in the next two weeks.

August 14, 2015: Kitzhaber’s lawyer writes to Mr. Isaak inquiring as to how they should handle documents they are reviewing in the course of responding to a document request from Congress, some of which “may” be privileged. She also mentions sending along a new production set that afternoon.

August 24, 2015: Mr. 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.

September 18, 2015: Kitzhaber’s lawyer writes to Mr. Isaak, “What is the first date you archived at att.net[?] This will help us to understand when the down load began and will also help us know if our sets are the same. Att.net is a far older account then [sic]hundredth meridian.” (Emphasis added.)

49.

This arrangement allows a former government official to determine if, when, and to what

extent public records are produced. The Attorney General has stated that such arrangements run

counter to, and threaten to eviscerate, Oregon’s Public Records Law. In a recent amicus filing in

Hayes v. Oregonian Publishing Company, the Attorney General pointed out that if individual

government officials can control whether public records are produced, the OPRL becomes

meaningless: “[R]ecalcitrant public officials could completely evade the operation of the Oregon

Public Records Law. Under Ms. Hayes’ proposed interpretation of the statutes, a state official

could gain total immunity from the public records law by moving across the river to Washington

and keeping public records in his or her sole custody, so long as the official’s specific position in

the state agency was not statutorily (or constitutionally) created.” (Brief of Amicus Curiae

Attorney General Ellen Rosenblum Regarding Jurisdiction at 5 (July 28, 2015).) Here, the

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recalcitrant public official (Kitzhaber) has only had to threaten a lawsuit to gain the Governor’s

agreement to abdicate her obligations under the OPRL and deny Oracle’s request for public

records from the Hundredth Meridian Archive. The contrast between the Attorney General’s

approach in the Cylvia Hayes case and in response to Oracle’s request is striking: in the Hayes

case, the Attorney General advocated for respecting Oregon’s Public Records Law’s purpose;

but, in response to Oracle’s request, the Attorney General’s office has assisted Governor Brown

and former Governor Kitzhaber in their efforts to delay, dissemble, and deny Oracle’s request.

The only difference between the two public records requests is that, unlike the news

organizations seeking the Hayes emails, Oracle is in ongoing litigation with the Attorney

General’s Office and the public records requested are crucial to Oracle’s defense.

50.

Governor Brown, an elected official, has denied Oracle’s public records request under

ORS 192.480 by unreasonably delaying production of responsive documents in her possession,

by taking the position that she can neither review nor produce any records from the Hundredth

Meridian Archive because of former Governor Kitzhaber’s threat of litigation, by withholding

many public records based on unsubstantiated claims of exemption, and by engaging in a pattern

or practice of withholding public records.

51.

Oracle’s interest is simply in disclosure. Thus, while Oracle believed that Governor

Brown’s denial provided Oracle a right of action in this court under ORS 192.480, Oracle

continued its efforts to seek cooperative resolution of this issue. On November 2, 2015, it

additionally submitted a Petition for a Public Records Order according to ORS 192.450, to give

the Attorney General an opportunity to ensure compliance with the law. In its letter

accompanying the petition, Oracle explained, “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

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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.”

52.

On November 9, 2015, the Attorney General’s office responded to the Petition with a

three sentence letter confirming that an elected official denied Oracle’s public records request:

“This letter responds to your letter of November 2, 2015. You attached a petition asking this

office to order the governor’s office to disclose public records to you under ORS 192.410 to

192.505. As your letter acknowledges, however, ORS 192.480 prohibits this office from

considering your petition.”

53.

Oracle is now left with one course of action: to file a lawsuit ordering Governor Brown

to disclose the public records. Governor Brown’s actions, including her private arrangement

with former Governor Kitzhaber, constitute a denial of Oracle’s public records request by an

elected official for purposes of ORS 192.480, giving Oracle a right to pursue this court action

pursuant to ORS 192.490.

CLAIM FOR RELIEF

(Declaratory and Injunctive Relief Pursuant to ORS 192.490(1))

54.

Plaintiff brings this action pursuant to ORS 192.490(1) in conjunction with ORS 192.480

for injunctive and declaratory relief from Governor Brown’s unlawful denial to produce the

public records included in the Hundredth Meridian Archive.

55.

Oracle submitted public records requests encompassing public records within the

Hundredth Meridian Archive to Governor Brown on April 6, 2015.

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56.

Governor Brown, directly or indirectly, creates, maintains, cares for, or controls these

public records, as defined in ORS 192.410. Governor Brown has repeatedly acknowledged that

she has possession and custody of the Hundredth Meridian Archive. For example, Mr. Isaak

acknowledged that the Hundredth Meridian Archive was in Governor Brown’s possession when

he stated, on July 16, 2015: “[W]e will begin reviewing the jk.hundredthmeridian emails next

week.”

57.

Pursuant to ORS 192.480, when an elected official denies a person the right to inspect a

public record in the custody of the elected official or in the custody of any other public agency,

the person denied the right to inspect the record may initiate court proceedings to challenge the

denial through injunctive or declaratory relief.

58.

Plaintiff is being denied records by Governor Brown as a result of one or more of the

following:

(a) Governor Brown has denied Oracle’s April 6, 2015 Public Records Request by refusing to review or produce any documents from the Hundredth Meridian Archive and constructing a proxy arrangement in which a former official will unilaterally review and produce documents from that official’s personal archive.

Governor Brown has abdicated her responsibility to former Governor Kitzhaber. Former

Governor Kitzhaber claims that the state, including Governor Brown, is in wrongful possession

of the Hundredth Meridian Archive, and that neither Governor Brown nor any other public body

of the state should review or produce emails from the Hundredth Meridian Archive, even in

response to subpoenas. In response, Governor Brown has decided that she will not review or

produce public records from the Hundredth Meridian Archive. In fact, she has been working

with Governor Kitzhaber to block review and production of the Hundredth Meridian Archive.

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By failing for seven months, in deference to Kitzhaber, to produce—or even review—a single

document from the Hundredth Meridian Archive, Governor Brown has denied Oracle’s request.

(b) Governor Brown failed to deny or grant a decision within seven days of Oracle’s public records requests.

ORS 192.465(2) states that “[t]he failure of an elected official to deny, grant, or deny in

part and grant in part a request to inspect or receive a copy of a public record within seven days

from the day of receipt of the request shall be treated as a denial of the request for the purpose of

determining whether a person may institute proceedings for injunctive or declaratory relief.” On

April 6, 2015, Oracle sent its public records request to Governor Brown. Governor Brown did

not respond until June 1, 2015, and only then to state that she had possession of and was

producing a single email chain. Therefore, Governor Brown failed to fully or partially deny or

grant the public records requests within seven days, which constitutes a denial according to

192.465(2).

(c) Governor Brown is unreasonably delaying production and has engaged in a pattern or practice of withholding public records.

ORS 192.440(2) requires that a public body “shall respond as soon as practicable and

without unreasonable delay.” In the seven months since Oracle’s request, Governor Brown has

refused to provide any public records from the Hundredth Meridian Archive and repeatedly

extended self-determined deadlines, even for production of documents resulting from her proxy

arrangement with Kitzhaber. Governor Brown has refused to review and produce public records

contained in the Hundredth Meridian Archive simply because Kitzhaber, who resigned from

office under a cloud of suspicion for potential influence peddling, asserts that they should never

have been stored on DAS’s servers. A seven-month delay is unreasonable. In this case, it is all

the more unreasonable because it results from the Governor’s decision to allow a third party—

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whose personal interests are in direct conflict with the requirements of the OPRL—to determine

production. This is a violation of the OPRL.

(d) At a minimum, Governor Brown partially denied Oracle’s request on September 18, 2015.

Even if the proxy arrangement could satisfy the OPRL, AAG Brown conceded in a letter

on September 18, 2015, that Governor Brown will not produce to Oracle all non-exempt public

records: “Through this procedure, it is my expectation that the Office of the Governor will

produce substantially all of the non-exempt public records in its possession associated with the

[email protected] account.” (Emphasis added.) This indicates that not all of the

public records will be produced, and constitutes at least a partial denial.

(e) Governor Brown has denied Oracle the right to inspect or to receive a copy of a public record through the use of vague and overbroad exemption claims.

Even if the proxy arrangement could satisfy the OPRL, Governor Brown claimed on

October 5, 2015, that an unspecified number of records are exempt from disclosure under one or

more of ten different exemptions. These claims of exemption constitute a denial of access to

those records. Further, Governor Brown has not described the documents she is withholding

from production, nor has she specified which exemption applies to each document that is being

withheld from disclosure as required by the OPRL.

59.

Therefore, Governor Brown has denied Oracle’s public records request related to the

Hundredth Meridian Archive. This was confirmed by the Attorney General’s November 9, 2015,

response to Oracle’s Petition, which cited ORS 192.480, the provision that describes denials by

elected officials, as the reason the Attorney General’s office was precluded from reviewing the

request.

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60.

Thus, Plaintiff seeks an order from the Court directing Governor Brown to make the

public records requested by the Plaintiff in the public records requests available to Plaintiff,

including those from the Hundredth Meridian Archive.

61.

The burden lies with Governor Brown to sustain an action to withhold public records

when challenged in court, according to ORS 192.490. Additionally, the Court, on its own

motion, may view the documents in controversy in camera before reaching a decision.5

62.

Oracle is entitled to its reasonable attorney’s fees, costs, and disbursements pursuant to

ORS 192.490(3).

PRAYER

WHEREFORE, Oracle prays for relief as follows:

Oracle requests this Court to enter judgment in favor of Plaintiff and against Defendant:

(1) Declaring that Governor Brown has violated the OPRL in failing to timely

respond and provide documents responsive to Oracle’s public records requests;

(2) Ordering Governor Brown to produce all documents responsive to Oracle’s public

records requests immediately and without further delay, including those from the Hundredth

Meridian Archive;

(3) Enjoining Defendant from further preventing Oracle from receiving responsive

documents to its public records requests;

(4) Determining that Plaintiff is the prevailing party in this action and, as such, is

entitled to an award of Plaintiff’s costs, disbursements, and reasonable attorney’s fees to be

determined pursuant to ORCP 68; and

5 If the Court does not hold that the records can be immediately produced, Plaintiff seeks a Court Order establishing a mandatory production schedule.

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(5) Granting such further and additional relief as is just and proper.

DATED: November 12, 2015

LANE POWELL PC

By s/ Milo PetranovichMilo Petranovich, OSB No. 813376Pilar C. French, OSB No. [email protected]

Attorneys for Plaintiff

Exhibit 1 Page 1

WILMERHALE

April 6, 2015 Edward N Siskel

By Federal Express +1 202 663 6272 (t) +1 202 663 6363 (f)

[email protected]

Jennifer Andrew Office of the Governor Public Records Request 160 State Capitol 900 Court Street NE Salem, OR 97301

Dear Ms. Andrew:

Pursuant to the Oregon Public Records Law, ORS 192.410-505, my client Oracle America, Inc. requests the following items from your agency. This request is submitted on behalf of Oracle America, Inc., which is the party in interest. The records requested are as follows:

1. All records since October 1, 2013 related to, in whole or in part (including having as a sender or recipient): Patricia McCaig, Kevin Looper, Mark Wiener, or the "Kitzhaber for Governor" campaign.

2. All records since January 1, 2014 related to, in whole or in part (including having as a sender or recipient): Tim Raphael and Scott Nelson.

3. All records since October 1, 2013 related to, in whole or in part (including having as a sender or recipient), both: (1) former Governor John Kitzhaber or Mike Bonetto; and (2) Cover Oregon, the Oregon Health Authority, Oracle, the Oregon health insurance exchange ("HIX"), or the Federal Government health insurance exchange ("HIX") or Federally Facilitated Marketplace ("FFM").

4. All records since October 1, 2013 related to, in whole or in part, the launch or readiness to launch of the Oregon HIX, including testing, cost/requirements to complete, or other assessments of the technical performance of the Oregon HIX, including records regarding the Technology Options Workgroup.

Oracle America, Inc. is willing to pay reasonable costs associated with this request. Oracle requests an estimate of fees prior to producing records if the estimated costs exceed $250. Oracles desires that the records be produced in electronic format.

Pursuant to ORS 192.442, you are required to respond to this request "as soon as practicable and without unreasonable delay." We believe it is practicable for you to respond within 10 days of

Wilmer Cutler Pickering Hale and Dorr LLP, 1875 Pennsylvania Avenue NW, Washington, DC 20006 Beijing Berlin Boston Brussels Denver Frankfurt London Los Angeles New York Oxford Palo Alto Washington

Exhibit 1 Page 2

Jennifer Andrew April6, 2015 Page 2

WILMERHALE

this request, and appreciate your response within that time. We request a written explanation if you deny all or part of this request. In particular, please state which specific statutory exemptions you believe prevent disclosure of a certain document or set of documents.

Please send the requested information to:

Mr. Edward Siskel WilmerHale LLP 1875 Pennsylvania Avenue, NW Washington, DC 20006

If you have any questions concerning this request, please contact me at (202) 663-6272 or [email protected]. Thank you for your prompt attention to this matter.

Respectfully,

e~.s~;~ Edward N Siskel

cc: Office of Attorney General, Oregon Department of Justice

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