Professor fights state over records manual

Posted by Daily Emerald Archives on Friday, Oct. 2 at 12:00 am.
Shawn Hatjes

Correction appended:

Officially, Bill Harbaugh is a University economics professor with a focus on neuroeconomics ­— the study of how people make decisions.

In his spare time, however, he is the University administration’s foremost gadfly.

Harbaugh has filed ethics complaints against former University president Dave Frohnmayer, raised issues about the school’s diversity plan and questioned the legality of the Underrepresented Minority Recruitment Program. Along the way, he’s had to file
numerous public records requests.

And now Harbaugh is needling the state attorney general.

Specifically, he illegally scanned the Attorney General’s Public Records and Meetings Manual, which describes in detail Oregon’s labyrinthine public information laws, and posted it on the Internet.

“In the process of getting some public records, I needed some advice from the manual,” Harbaugh explained. “I figured this would be the kind of thing the A.G. would be happy to post on the Internet. Turns out he wasn’t happy to do that.”

In fact, it turns out the manual is not available on the Internet, and obtaining a hard copy of the 326-page book costs $25.

Oregon Department of Justice spokesperson Tony Green said in an interview with The Register-Guard that the price recoups the department for the $11,000 printing costs, as well $60,000 for hiring lawyers to write and update the manual every two years.

In an e-mail exchange, the justice department offered to sell Harbaugh a password-protected PDF file of the manual, but warned him that the state “owns copyright to the Manual, and it is not to be redistributed without our permission in any format.”

Harbaugh said he found the justice department’s position ironic, given the James Madison quote printed on the front of the manual: “Knowledge will forever govern ignorance. And a people who mean to be their own governors, must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both.”

Harbaugh found a copy of the manual in the law library, but it still irked him that it wasn’t free for the public.

“Not everybody has easy access to a law library, if you can imagine,” he said.

So Harbaugh took Madison’s words to heart and, as he said, “scanned it, put it on the Web and told the attorney general to do something about it.”

He posted a link to the document on his Web site, urging viewers to “Get your free and illegal copy of the Oregon Attorney General’s Public Records and Meeting Manual here.”
Harbaugh’s actions were picked up by a few state media outlets, and then by the hugely popular technology website Slashdot.

The hoopla soon caught the attention of Carl Malamud, the president of public.resource.org, which works to make government information more
accessible to the public. Malamud is a big name in online circles and backed by such heavyweights as Google, eBay and the Electronic Frontier Foundation.

Malamud sent Attorney General John Kroger a letter requesting the manual and stating his intention “to scan these documents and place them online for public use.”

Malamud also disagreed with the attorney general’s claim that the manual was copyrighted, citing the 1834 case Wheaton v. Peters, which found that “no one has or can have copyright” over the law.

In a phone interview, Malamud said that while it’s up to a judge to decide if the Justice Department can assert copyright over the manual, “courts have been pretty clear that primary legal documents — judicial opinions, regulations, things that have the force of law — can’t be copyrighted. They belong to the citizens.”

However, the justice department disagrees.

“Without a copyright, anyone would be able to take the manual and sell it, and the taxpayers of Oregon would not see a dime,” Green wrote in an e-mail.

Malamud was still unconvinced.

“That’s a wonderful claim, and I sympathize with them,” he said. “That said, you can’t assert ownership of something that’s not yours.”

Since it was originally posted, Harbaugh said the manual has been downloaded hundreds of times. So far, the Justice Department hasn’t taken any action against him.

Harbaugh’s actions over the years haven’t won him many friends in high places. For example, at one point in his ongoing battle with the Frohnmayer administration, University
general counsel Melinda Grier sent Harbaugh a letter telling him the administration would only respond to his questions and requests insofar as it was required to by law.

“It does not appear productive to continue the dialogue regarding your disagreement with the University’s approach to increasing diversity,” Grier wrote in 2007. “Thus, I believe we must agree to disagree.”

However, Harbaugh’s goading sometimes does get results. The attention may speed up the justice department’s plan to put up an electronic version of
the manual.

“We have been planning since last summer to put the manual online,” Green wrote. “The question has always been how to recover the approximately $60,000 cost in attorney time and printing costs to prepare it. We are continuing to move forward on that project. No final decisions have been made.”

Harbaugh Highlights

Some of the things Bill Harbaugh has dug up through public records requests:

  • Oregon University System consulting contracts
  • A consultant’s report on Matthew Knight Arena that predicted drastically lower annual income figures than official estimates
  • The contracts of University administrators
  • Information on the University’s diversity plan and Underrepresented Minority Recruitment Plan
  • Expense reports for John Moseley, special assistant to the provost and head of the satellite campus in Bend

cciaramella@dailyemerald.com