Oracle v. Governor of Oregon Re: Kitzhaber Emails

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IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF MARION
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ORACLE AMERICA, INC., a Delaware

corporation,
Plaintiff,
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)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
v.
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GOVERNOR KATE BROWN, in her official

capacity as Governor for the State of Oregon,
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Defendant.
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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:
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INTRODUCTION
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1.
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Plaintiff Oracle America, Inc. (Oracle) brings this Complaint against defendant
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Governor Kate Brown (Governor Brown) for injunctive and declaratory relief under Oregons
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Public Records Law (OPRL), ORS 192.410, et seq. Governor Brown has failed to provide a
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single public record from the states archive of the jk.hundredthmeridian@gmail.com and
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hundredthmeridian@att.net accounts in response to Oracles April 6, 2015 public records
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request, relying instead on former Governor Kitzhaber to pass along what he determines to be
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public records from his personal archive. In fact, Governor Brown has failed to even begin
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review of the state archive of these accounts. Instead, she has made a private agreement with a
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former government official to: (1) ignore her legal obligation to produce responsive public
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records in the states archive of these accounts; (2) produce only documents currently in the
PAGE 1 - COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF PURSUANT

TO ORS 192.480 AND 192.490
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601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204-3158
503.778.2100 FAX: 503.778.2200
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 states archive; and (3) accept all determinations that
Kitzhaber makes regarding which similar documents or full or partial copies will be produced.
Governor Browns approach does not satisfy the OPRLs requirement to produce all responsive,
non-exempt public records she possessed on April 6, 2015, when Oracle made its request.
Governor Browns refusal to produce public records from the states archive of the
jk.hundredthmeridian@gmail.com and hundredthmeridian@att.net accounts is a denial of
Oracles April 6 request with respect to those records.

2.
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The
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records
in
question
include
copies
of
emails
sent
to
or
from
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jk.hundredthmeridian@gmail.com and hundredthmeridian@att.net email accounts that Kitzhaber
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used to conduct official state business during his tenure as Governor, in the possession of the
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State of Oregon on or before the date of Oracles requests.1 These documents have been
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archived on the states servers since, at the latest, June 2013 (the Hundredth Meridian Archive).
3.
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Governor Brown does not dispute that the Hundredth Meridian Archive contains public
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records or that such records have been preserved on state email servers and are within her
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custody and control. To the contrary, lawyers for Governor Brown acknowledged that they have
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possession of the Hundredth Meridian Archive, purported to accept Oracles request to prioritize
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review and production of records Oracle requested from the Hundredth Meridian Archive, and
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repeatedly assured Oracle of their intention to produce public records from the Hundredth
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Meridian Archive to Oracle promptly.
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Former Governor Kitzhaber also used another commercial email account to conduct state
business: governor.kitzhaber@gmail.com. While Oracles Public Records Requests encompass
public records from that account as well, Oracle prioritized production of the Hundredth
Meridian Archive emails in discussions with the Governors Office. Oracle focuses on the
failure to provide those documents here.

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4.
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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.
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Governor Browns 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
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Hundredth Meridian Archive unlawfully and Kitzhaber has threatened to sue the Governor if
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she reviews or produces such emails. In the face of this threat, Governor Brown has abdicated
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her responsibility to timely review and produce these public records.

6.
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Instead, the Governor has attempted to construct what would be, at best, an alternative to
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compliance with the OPRL. She has agreed to allow Kitzhaber to review his personal archive2
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of emails from the Hundredth Meridian accounts and unilaterally determine what he thinks
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should be produced in response to Oracles request. Governor Brown is allowing Kitzhaber to
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provide the documents that he selects to the Governors Office. At that point, the Governor may
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or may not forward those documents to Oracle in lieu of reviewing the public records from the
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Hundredth Meridian Archive.3 In effect, Governor Brown has outsourced her duty to review and
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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, Kitzhabers
lawyer wrote to Governor Browns 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.)
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Even within this proxy production, only two documents have been provided that were
responsive to Oracles 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.
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As a result of Governor Browns 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.

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Oracle therefore seeks an order declaring that Governor Brown has violated the OPRL in
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failing to timely respond and provide documents responsive to Oracles public records requests;
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ordering Governor Brown to produce all documents responsive to Oracles public records
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requests immediately and without further delay, including those from the Hundredth Meridian
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Archive; and enjoining Governor Brown from further preventing Oracle from receiving
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documents responsive to its public records requests.
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PARTIES
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9.
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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.
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Governor Brown is the current governor for the state of Oregon. As such, she is a
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public body and state agency under ORS 192.410, and an elected official within the
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meaning of ORS 192.480.
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TO ORS 192.480 AND 192.490
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11.
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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 states 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 Kitzhabers Office. Governor Brown is subject to a public records request
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from Oracle that requires review of the Hundredth Meridian Archive.
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JURISDICTION
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12.
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The Circuit Court for Marion County has subject matter jurisdiction over this lawsuit
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pursuant to ORS 192.480 and 192.490. ORS 192.480 provides that when a person is denied the
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right to receive a copy of a public record within the custody of an elected official, or in the
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custody of any other person but as to which an elected official claims the right to withhold
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disclosure, such person may institute proceedings for injunctive or declaratory relief in the
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appropriate court. ORS 192.490 provides that the court has jurisdiction in such suits to enjoin
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the public body from withholding records and to order the production of any records improperly
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withheld from the person seeking disclosure.

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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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TO ORS 192.480 AND 192.490
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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 fiance, Cylvia
Hayes.
15.
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In
or
around
February
2015,
Oracle
learned
that
Kitzhaber
used
jk.hundredthmeridian@gmail.com and hundredthmeridian@att.net to conduct official state
business, including official state business related to the Oregon Health Insurance Exchange
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(Oregon HIX), and that these emails had been archived on state servers. Oracle learned these
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facts after a state employeesubsequently identified as Interim Administrator for the Enterprise
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Technology Services division of DAS, Michael Rodgers (Rodgers)leaked emails from the
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Hundredth Meridian Archive to Willamette Week.
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Rodgers stated reason for leaking the emails is that Kitzhaber staffers asked state
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employees to destroy the emails. According to Rodgers, destruction of the emails would have
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been a crime because ORS 162.305 prohibits tampering with public records.
17.
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The Hundredth Meridian Archive includes numerous emails containing information
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relating to the conduct of the publics business. Such emails are public records within the
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meaning of 192.410(4)(a).
18.
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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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TO ORS 192.480 AND 192.490
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19.
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Emails contained in the Hundredth Meridian Archive include emails that are highly
relevant to pending litigation, initiated at Kitzhabers 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
Oracles work helping Oregon to develop the Oregon HIX. In particular, the emails are likely to
be relevant to Oracles defenses and to show, among other things, that:
vested his reelection campaign consultants, including Patricia McCaig (McCaig), with
decision-making authority over the Oregon HIX;
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McCaig and other campaign consultants oversaw the decision to shut down the Oregon
HIX;
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Kitzhaber was concerned about political fallout during his reelection campaign and
McCaig and other campaign consultants drove the decision to sue Oracle and to launch a
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media campaign to mislead the public by suggesting that problems with the Oregon HIX
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were Oracles fault, and not that of Cover Oregon and the Kitzhaber Administration; and
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McCaig and other campaign advisors decisions with regard to the Oregon HIX were
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based on polling results and perceptions of how issues associated with the Oregon HIX
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might affect Kitzhabers reelection, rather than an objective assessment of Oracles
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technology or the best interests of the people of Oregon.
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ORACLES PUBLIC RECORD REQUESTS
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20.
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Under the OPRL, every person has a right to inspect public records of any public body of
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the State of Oregon, unless certain narrow exemptions apply. ORS 192.420(1). For these
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reasons, even when a lawsuit is pending, a party to the case may seek disclosure of public
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records, ORS 192.420(2), and no public body of the state, including Governor Brown, may
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TO ORS 192.480 AND 192.490
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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.
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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.
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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
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Gov. John Kitzhaber's personal email account or accounts that have been contained on the state
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server and were considered for deletion by the Department of Administrative Services in 2015.
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Similarly, Kirk Johnson of the New York Times requested [a]ll Governors Office emails from
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the Kitzhaber administration maintained by the Department of Administrative Services
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regardless of the address or domain name on February 19, 2015.

23.
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On February 27, 2015, Oracle requested copies of responses to these requests. Oracle
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submitted a me too public records request for [a]ll records that have been provided to any
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Oregon Public Records Law requester since October 1, 2013 based on requests related to former
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Governor Kitzhaber, Cover Oregon, Oracle, Kevin Looper, Patricia McCaig, Scott Nelson, Tim
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Raphael, Mark Weiner, Mike Bonetto, or Cylvia Hayes. Oracle noted that there was a backlog
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of outstanding requests on these issues and requested copies of records produced in the future in
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response to requests pending as of February 27, 2015.

24.
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On April 6, 2015, Oracle sent a public records request to the Office of the Governor and
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other state agencies including DAS, OHA, DOJ, and Cover Oregon.
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Governors Office is attached as Exhibit 1. The request seeks:
The request to the

TO ORS 192.480 AND 192.490
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503.778.2100 FAX: 503.778.2200
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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, 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.
25.
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On June 1, 2015, Governor Browns Deputy General Counsel Misha Isaak first
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communicated with Oracle regarding the April 6, 2015 request. He informed Oracle that its
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public records requests were being processed. In addition, Mr. Isaak produced a single email
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chain, dated February 6 and 7, 2014, which reflected communications between Kitzhaber and his
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campaign consultants.
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Hundredth Meridian Archive, but was provided to Mr. Isaak by Kitzhaber from Kitzhabers
19
personal archive.
It now appears that this email chain was not produced from the
26.
20
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Governor Brown passed along this single email chain only after Oracle subpoenaed
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Kitzhaber for the document and Oracle was preparing to litigate a motion to quash filed by
23
Kitzhaber. Mr. Isaak explained that he produced the email chain in the interest of efficiency,
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saying, It has come to my attention that an email exchange between former Governor John A.
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Kitzhaber and Patricia McCaig, as well as the associated email chain, is the subject both of a
26
subpoena to Governor Kitzhaber and of a motion to quash by his counsel. He further stated,

TO ORS 192.480 AND 192.490
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503.778.2100 FAX: 503.778.2200
I have possession of this email exchange, which is responsive to your clients public records
request. This email chain and other chains obtained by Oracle through litigation confirm that
Kitzhaber used jk.hundredthmeridian@gmail.com 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 states possession, are therefore public records in
the states possession.

27.
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Oracle subsequently learned that Mr. Isaak received the document from Kitzhaber and
that Kitzhabers attorney took the position that it was not a public record even though it clearly
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involved discussion of public business.
On May 19, 2015, Kitzhabers lawyer wrote to
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Mr. Isaak, After reviewing the contents of the email demanded by Oracles subpoena, we have
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determined that the email does not fit the statutory definition of a public record * * *. Then, on
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June 1, 2015, Kitzhabers lawyer wrote to Mr. Isaak:
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documents to dropbox and should send you a link in a matter of minutes. This was followed by
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an email from Kitzhabers lawyers office, with a dropbox link for the first production of
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Kitzhaber emails. In a recent filing in Rosenblum, et al. v. Oracle, et al., the state described the
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arrangement: The Governors Office produced the email chain from documents provided to the
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Governors Office by former-Governor Kitzhabers counsel. (McIntire Decl. Ex. 5 2.) The
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State did not review or retrieve it from the archived Private Gmail Account. (Id.; Plaintiffs
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Memorandum in Opposition to Oracles Motion to Compel Production of Documents from
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Plaintiffs at 8:16-18.)
[W]ere currently uploading the
28.
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Oracle spent the next several months attempting to cooperate with Governor Brown and
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the state regarding its public records requests, including through communications with both DOJ
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Assistant Attorney General Jermaine Brown (AAG Brown) and Mr. Isaak.
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TO ORS 192.480 AND 192.490
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29.
1
2
On or about June 25, 2015, in an effort to resolve delay in producing public records in
response to Oracles 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,
jk.hundredthmeridian@gmail.com.
30.
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Subsequent to Oracles request, Mr. Isaak represented to Oracle that Governor Brown
10
was going to produce emails from the Hundredth Meridian Archive promptly. During a phone
11
call on July 2, 2015, AAG Brown and Mr. Isaak stated that the Hundredth Meridian emails
12
would be addressed within Oracles public records request to the Governors Office. Mr. Isaak
13
stated that Governor Brown was close to beginning review and production of such documents,
14
and Mr. Isaak promised to provide a written estimate within a week of the cost and time to
15
produce them. Mr. Isaak also stated that any delay in the production of such documents had
16
nothing to do with the fact that the state and Oracle were involved in the Marion County case.
31.
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A week later, by letter dated July 9, 2015, AAG Brown informed Oracle that that the
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Governors Office expects to begin a rolling production of emails from [the two Gmail accounts
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used by Dr. Kitzhaber] by September 1, 2015.

32.
21
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A week later, on July 16, 2015, Mr. Isaak responded by email to Oracles inquiry
23
regarding whether the Hundredth Meridian Archive emails had been gathered by stating: [W]e
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will begin reviewing the jk.hundredthmeridian emails next week.
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33.
1
2
3
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.
4
5
On September 8, 2015after months of communications regarding producing documents
from the Hundredth Meridian ArchiveOracle received a document production from Governor
Brown. The production included some public records from Governor Kitzhabers personal
archive of his email account, but did not include a single public record from the Hundredth
Meridian Archive. This was directly contrary to Oracles request that Governor Brown prioritize
10
public records from the Hundredth Meridian Archive. It was directly contrary to Mr. Isaaks
11
representations that Governor Brown was reviewing such emails and that they would be included
12
in the production on September 8. Mr. Isaak provided no explanation for this failure in his
13
transmission email to Oracles counsel on September 8.

35.
14
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Moreover, even with regard to the governor.kitzhaber@gmail.com account, Governor
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Brown withheld public records citing the following exemptions: 192.502(1) (internal advisory
17
communications); 192.502(2) (information of a personal nature); 192.502(4) (information
18
submitted to the Governors Office in confidence); 192.502(9) (which incorporates the privilege
19
for attorney-client confidential communications); and/or ORS 192.410(4) (does not meet the
20
definition of a public record). Governor Brown did not provide an exemption log or any other
21
information that would allow Oracle to discern whether the cited exemptions applied to any
22
particular public record.

36.
23
24
As noted, Governor Brown failed to produce a single public record from the Hundredth
25
Meridian Archive in the September 8 production, and Mr. Isaak provided no explanation for this
26
failure in his transmission email on September 8. Governor Browns website included a notice

TO ORS 192.480 AND 192.490
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accompanying
the
release
of
these
same
documents,
stating:
The
jk.hundredthmeridian@gmail.com 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 Browns website did not identify the pending litigation or explain how any such
litigation would justify delaying production of these public records.

37.
6
7
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
10
and reviews these emails. Mr. Browns letter disclosed that Governor Brown had not reviewed
11
a single document in the Hundredth Meridian Archive, and would not do so.
38.
12
13
The letter revealed that, in lieu of reviewing the Hundredth Meridian Archive and
14
producing non-exempt relevant public records, Governor Brown was merely going to forward
15
copies of Hundredth Meridian emails provided by Kitzhaber from his personal archive.
16
Kitzhaber would unilaterally determine what could be reviewed and released as a public record.
17
The letter revealed that Governor Brown was refusing to provide Oracle with the requested
18
public records, or even ensuring that Oracle would receive a proxy production from Kitzhaber
19
that was complete or forwarded without further unreasonable delay.

39.
20
21
The same letter conceded that former Governor Kitzhaber had already identified fewer
22
than 1,000 emails that constitute public records from within his personal archive. The letter did
23
not explain why Governor Brown had not produced even these documents that Kitzhaber had
24
apparently already approved for release.
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40.
1
2
AAG Browns 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 jk.hundredthmeridian@gmail.com 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
Kitzhabers 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
10
her obligation under the OPRL to Kitzhaber, who now is the one to decide what is and what is
11
not a public record and when any records will be produced.

41.
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On September 29, 2015, Oracle wrote to the Attorney General, in her capacity as counsel
14
for the Governor, describing Governor Browns repeated failures to meet her obligations under
15
the OPRL and notifying the Attorney General and Governor that it would file a lawsuit to
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enforce its rights under the OPRL if the records were not produced as requested within seven
17
days.
42.
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19
On October 5, 2015the sixth day after Oracle wrote to the Attorney General
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Governor Brown passed on to Oracle approximately 1,000 pages provided to her by Kitzhaber.
21
This production appears to be designed to allow Governor Brown to create the impression that
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she is complying with the OPRL when in fact she has neither reviewed nor produced even a
23
single record from the states Hundredth Meridian Archive, relying instead on her attempted
24
proxy: selected records provided to her by Kitzhaber from his own personal archive. Further, the
25
entire production contains only one document that discusses the Oregon HIX. In fact, nearly half
26
of the pages were reproductions from two booksEverything We Know About Leadership Is

TO ORS 192.480 AND 192.490
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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.
3
4
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.
10
11
Governor Browns delay and abdication of her obligation under the OPRL is further
12
highlighted by the recent revelation that the DOJ and Governor Brown have known, since at least
13
February 19, 2015, that Kitzhaber claimed that the state, including Governor Brown, was in
14
wrongful possession of the Hundredth Meridian Archive and insisted that neither Governor
15
Brown nor any other public body of the state should review them until Kitzhabers attorneys had
16
an opportunity to review them first.

45.
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18
This revelation demonstrates that Governor Brown never prioritized the review of the
19
Hundredth Meridian Archive despite Deputy General Counsel Isaaks assurances that she would,
20
assurances upon which Oracle relied for months while awaiting a response to its public records
21
request. It further demonstrates that Governor Brown never was close to beginning review and
22
production of such documents, as Mr. Isaak said she was. It shows that Mr. Isaaks assertion on
23
July 16, 2015, [W]e will begin reviewing the jk.hundredthmeridian emails next week, was not
24
true.
25
26
TO ORS 192.480 AND 192.490
710118.0003/6487165.1
LANE POWELL PC
503.778.2100 FAX: 503.778.2200
46.
1
2
Governor Browns 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 states private arrangement with Kitzhaber and his attorney.4
These communications with Kitzhabers attorney detail Governor Browns 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
jk.hundredthmeridian@gmail.com and hundredthmeridian@att.net accounts. And for even that
10
proxy production, Kitzhaber decides what constitutes a public record; Kitzhaber decides when
11
he will produce these batches of documents and what will be included in the batches he gives to
12
Governor Brown; and then Governor Brown may or may not forward Kitzhabers chosen
13
documents to Oracle, apparently intending to withhold even some of these proxy documents
14
based on unsubstantiated claims of exemption.

47.
15
16
The released records include a series of emails on July 19, 2015, from Kitzhabers
17
lawyer, Janet Hoffman, to the states lawyer in the Oracle litigation that illustrate Hoffmans plan
18
for coordinating the response to public records requests for the Hundredth Meridian emails. Five
19
days later, on July 24, 2015, Kitzhabers lawyer wrote to Mr. Isaak, counsel to Governor Brown,
20
to inform him that she had sent a thumb drive containing public records from the
21
jk.hundredthmeridian@gmail.com account and that she expected to send another production set
22
in the next two weeks.
23
24
25
26
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 Oracles 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.

TO ORS 192.480 AND 192.490
710118.0003/6487165.1
LANE POWELL PC
503.778.2100 FAX: 503.778.2200
48.
1
2
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: Kitzhabers lawyer writes an email titled Document review to
Benjamin Souede, General Counsel at the Governors office, arranging a phone call to
discuss protocol and specifics.
May 19, 2015: Kitzhabers lawyer writes to Mr. Isaak: After reviewing the contents of
the email demanded by Oracles subpoena, we have determined that the email does not fit
the statutory definition of a public record * * *.
June 1, 2015: Kitzhabers lawyer writes to Mr. Isaak: [W]ere currently uploading the
documents to dropbox and should send you a link in a matter of minutes. This is
followed by an email from Hoffmans office with a dropbox link for the first production
of Kitzhaber emails.
July 11, 2015: Kitzhabers 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: Kitzhabers lawyer writes to Mr. Isaak confirming that they will provide
Mr. Isaak with public records next week.
July 18, 2015: Kitzhabers lawyer writes to the states lawyer in the Oracle litigation:
Some problems with Oracle. I think I have a way around the impasse. But need your
help.
July 19, 2015: A series of emails from Kitzhabers lawyer, Hoffman, to the States
lawyer in the Oracle litigation on this date illustrate that a plan of Hoffmans devising for
coordinating the response to public records requests for the Hundredth Meridian emails is
coalescing:
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
o In the afternoon, Hoffman writes the states 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

TO ORS 192.480 AND 192.490
710118.0003/6487165.1
LANE POWELL PC
503.778.2100 FAX: 503.778.2200
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.
2
3
4
July 24, 2015: Kitzhabers 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 jk.hundredthmeridian@gmail.com account and expects to send
another production set in the next two weeks.
August 14, 2015: Kitzhabers 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
Kitzhabers 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: Kitzhabers 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.)
5
6
7
8
9
10
11
12
13
14
49.
15
16
This arrangement allows a former government official to determine if, when, and to what
17
extent public records are produced. The Attorney General has stated that such arrangements run
18
counter to, and threaten to eviscerate, Oregons Public Records Law. In a recent amicus filing in
19
Hayes v. Oregonian Publishing Company, the Attorney General pointed out that if individual
20
government officials can control whether public records are produced, the OPRL becomes
21
meaningless: [R]ecalcitrant public officials could completely evade the operation of the Oregon
22
Public Records Law. Under Ms. Hayes proposed interpretation of the statutes, a state official
23
could gain total immunity from the public records law by moving across the river to Washington
24
and keeping public records in his or her sole custody, so long as the officials specific position in
25
the state agency was not statutorily (or constitutionally) created. (Brief of Amicus Curiae
26
Attorney General Ellen Rosenblum Regarding Jurisdiction at 5 (July 28, 2015).) Here, the

TO ORS 192.480 AND 192.490
710118.0003/6487165.1
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503.778.2100 FAX: 503.778.2200
recalcitrant public official (Kitzhaber) has only had to threaten a lawsuit to gain the Governors
agreement to abdicate her obligations under the OPRL and deny Oracles request for public
records from the Hundredth Meridian Archive. The contrast between the Attorney Generals
approach in the Cylvia Hayes case and in response to Oracles request is striking: in the Hayes
case, the Attorney General advocated for respecting Oregons Public Records Laws purpose;
but, in response to Oracles request, the Attorney Generals office has assisted Governor Brown
and former Governor Kitzhaber in their efforts to delay, dissemble, and deny Oracles 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
10
Generals Office and the public records requested are crucial to Oracles defense.
50.
11
12
Governor Brown, an elected official, has denied Oracles public records request under
13
ORS 192.480 by unreasonably delaying production of responsive documents in her possession,
14
by taking the position that she can neither review nor produce any records from the Hundredth
15
Meridian Archive because of former Governor Kitzhabers threat of litigation, by withholding
16
many public records based on unsubstantiated claims of exemption, and by engaging in a pattern
17
or practice of withholding public records.

51.
18
19
Oracles interest is simply in disclosure. Thus, while Oracle believed that Governor
20
Browns denial provided Oracle a right of action in this court under ORS 192.480, Oracle
21
continued its efforts to seek cooperative resolution of this issue. On November 2, 2015, it
22
additionally submitted a Petition for a Public Records Order according to ORS 192.450, to give
23
the Attorney General an opportunity to ensure compliance with the law.
24
accompanying the petition, Oracle explained, According to ORS 192.480, the procedure for
25
challenging a denial from an elected official is to immediately file a lawsuit in court.
26
Nonetheless, we are filing this petition according to ORS 192.450 out of an abundance of caution
In its letter

TO ORS 192.480 AND 192.490
710118.0003/6487165.1
LANE POWELL PC
503.778.2100 FAX: 503.778.2200
because the state has not been transparent about who or what agency denied Oracles 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.
4
5
On November 9, 2015, the Attorney Generals office responded to the Petition with a
three sentence letter confirming that an elected official denied Oracles public records request:
This letter responds to your letter of November 2, 2015. You attached a petition asking this
office to order the governors office to disclose public records to you under ORS 192.410 to
192.505.
10
As your letter acknowledges, however, ORS 192.480 prohibits this office from
considering your petition.

53.
11
12
Oracle is now left with one course of action: to file a lawsuit ordering Governor Brown
13
to disclose the public records. Governor Browns actions, including her private arrangement
14
with former Governor Kitzhaber, constitute a denial of Oracles public records request by an
15
elected official for purposes of ORS 192.480, giving Oracle a right to pursue this court action
16
pursuant to ORS 192.490.
17
CLAIM FOR RELIEF
18
(Declaratory and Injunctive Relief Pursuant to ORS 192.490(1))
19
54.
20
Plaintiff brings this action pursuant to ORS 192.490(1) in conjunction with ORS 192.480
21
for injunctive and declaratory relief from Governor Browns unlawful denial to produce the
22
public records included in the Hundredth Meridian Archive.

55.
23
24
25
Oracle submitted public records requests encompassing public records within the
Hundredth Meridian Archive to Governor Brown on April 6, 2015.
26
TO ORS 192.480 AND 192.490
710118.0003/6487165.1
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503.778.2100 FAX: 503.778.2200
56.
1
2
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 Browns possession when
he stated, on July 16, 2015: [W]e will begin reviewing the jk.hundredthmeridian emails next
week.
57.
8
9
Pursuant to ORS 192.480, when an elected official denies a person the right to inspect a
10
public record in the custody of the elected official or in the custody of any other public agency,
11
the person denied the right to inspect the record may initiate court proceedings to challenge the
12
denial through injunctive or declaratory relief.

58.
13
14
Plaintiff is being denied records by Governor Brown as a result of one or more of the
15
following:
16
(a)
18
Governor Brown has denied Oracles 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 officials personal archive.
19
Governor Brown has abdicated her responsibility to former Governor Kitzhaber. Former
20
Governor Kitzhaber claims that the state, including Governor Brown, is in wrongful possession
21
of the Hundredth Meridian Archive, and that neither Governor Brown nor any other public body
22
of the state should review or produce emails from the Hundredth Meridian Archive, even in
23
response to subpoenas. In response, Governor Brown has decided that she will not review or
24
produce public records from the Hundredth Meridian Archive. In fact, she has been working
25
with Governor Kitzhaber to block review and production of the Hundredth Meridian Archive.
17
26
TO ORS 192.480 AND 192.490
710118.0003/6487165.1
LANE POWELL PC
503.778.2100 FAX: 503.778.2200
By failing for seven months, in deference to Kitzhaber, to produceor even reviewa single
document from the Hundredth Meridian Archive, Governor Brown has denied Oracles request.
(b)
Governor Brown failed to deny or grant a decision within seven days of Oracles
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
10
not respond until June 1, 2015, and only then to state that she had possession of and was
11
producing a single email chain. Therefore, Governor Brown failed to fully or partially deny or
12
grant the public records requests within seven days, which constitutes a denial according to
13
192.465(2).
14
15
Governor Brown is unreasonably delaying production and has engaged in a

pattern or practice of withholding public records.
16
ORS 192.440(2) requires that a public body shall respond as soon as practicable and
17
without unreasonable delay. In the seven months since Oracles request, Governor Brown has
18
refused to provide any public records from the Hundredth Meridian Archive and repeatedly
19
20
21
22
(c)
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
23
office under a cloud of suspicion for potential influence peddling, asserts that they should never
24
have been stored on DASs servers. A seven-month delay is unreasonable. In this case, it is all
25
the more unreasonable because it results from the Governors decision to allow a third party
26
TO ORS 192.480 AND 192.490
710118.0003/6487165.1
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whose personal interests are in direct conflict with the requirements of the OPRLto determine
production. This is a violation of the OPRL.
3
4
At a minimum, Governor Brown partially denied Oracles 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
jk.hundrethmeridian@gmail.com account. (Emphasis added.) This indicates that not all of the
10
11
(d)
public records will be produced, and constitutes at least a partial denial.

(e)
12
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.
13
Even if the proxy arrangement could satisfy the OPRL, Governor Brown claimed on
14
October 5, 2015, that an unspecified number of records are exempt from disclosure under one or
15
more of ten different exemptions. These claims of exemption constitute a denial of access to
16
those records. Further, Governor Brown has not described the documents she is withholding
17
from production, nor has she specified which exemption applies to each document that is being
18
withheld from disclosure as required by the OPRL.

59.
19
20
Therefore, Governor Brown has denied Oracles public records request related to the
21
Hundredth Meridian Archive. This was confirmed by the Attorney Generals November 9, 2015,
22
response to Oracles Petition, which cited ORS 192.480, the provision that describes denials by
23
elected officials, as the reason the Attorney Generals office was precluded from reviewing the
24
request.
25
26
TO ORS 192.480 AND 192.490
710118.0003/6487165.1
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60.
1
2
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.
5
6
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 attorneys fees, costs, and disbursements pursuant to
10
11
ORS 192.490(3).
PRAYER
12
13
WHEREFORE, Oracle prays for relief as follows:
14
Oracle requests this Court to enter judgment in favor of Plaintiff and against Defendant:
15
(1)
16
Declaring that Governor Brown has violated the OPRL in failing to timely
respond and provide documents responsive to Oracles public records requests;

(2)
17
Ordering Governor Brown to produce all documents responsive to Oracles public
18
records requests immediately and without further delay, including those from the Hundredth
19
Meridian Archive;
20
(3)
21
Enjoining Defendant from further preventing Oracle from receiving responsive
documents to its public records requests;

(4)
22
Determining that Plaintiff is the prevailing party in this action and, as such, is
23
entitled to an award of Plaintiffs costs, disbursements, and reasonable attorneys fees to be
24
determined pursuant to ORCP 68; and
25
26
If the Court does not hold that the records can be immediately produced, Plaintiff seeks a Court
Order establishing a mandatory production schedule.

TO ORS 192.480 AND 192.490
710118.0003/6487165.1
LANE POWELL PC
503.778.2100 FAX: 503.778.2200
(5)
Granting such further and additional relief as is just and proper.
DATED: November 12, 2015
LANE POWELL PC
4
5
By s/ Milo Petranovich
Milo Petranovich, OSB No. 813376
Pilar C. French, OSB No. 962880
docketing-pdx@lanepowell.com
Attorneys for Plaintiff
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

TO ORS 192.480 AND 192.490
710118.0003/6487165.1
LANE POWELL PC
503.778.2100 FAX: 503.778.2200
WILMERHALE
Edward N Siskel
April 6, 2015
+1 202 663 6272 (t)

+1 202 663 6363 (f)
edward.siskel@wilmerhale.com
By Federal Express
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

Beijing
Berlin
Boston
Brussels
Denver
LLP,
Frankfurt
1875 Pennsylvania Avenue NW, Washington, DC 20006

London
Los Angeles
New York
Oxford
Palo Alto
Washington
Exhibit 1
Page 1
WILMERHALE
Jennifer Andrew
April6, 2015
Page 2
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
edward.siskel@wilmerhale.com. Thank you for your prompt attention to this matter.
Respectfully,
e~.s~;~
Edward N Siskel
cc:
Office of Attorney General, Oregon Department of Justice
Exhibit 1
Page 2

Oracle v. Governor of Oregon Re: Kitzhaber Emails

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Oracle v. Governor of Oregon Re: Kitzhaber Emails

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1

IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF MARION

ORACLE AMERICA, INC., a Delaware

GOVERNOR KATE BROWN, in her official

Case No. __________

Plaintiff Oracle America, Inc. alleges as follows:

hundredthmeridian@att.net accounts in response to Oracles April 6, 2015 public records

PAGE 1 - COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF PURSUANT

jk.hundredthmeridian@gmail.com and hundredthmeridian@att.net accounts is a denial of

Oracles April 6 request with respect to those records.

jk.hundredthmeridian@gmail.com and hundredthmeridian@att.net email accounts that Kitzhaber

Meridian Archive to Oracle promptly.

PAGE 2 - COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF PURSUANT

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

her responsibility to timely review and produce these public records.

should be produced in response to Oracles request. Governor Brown is allowing Kitzhaber to

PAGE 3 - COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF PURSUANT

out of the public eye.

As a result of Governor Browns agreement with Kitzhaber, Governor Brown has

it is legally entitled to receive.

documents responsive to its public records requests.

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

meaning of ORS 192.480.

from Oracle that requires review of the Hundredth Meridian Archive.

withheld from the person seeking disclosure.

PUBLIC RECORDS CONTAINED IN THE HUNDREDTH MERIDIAN ARCHIVE

jk.hundredthmeridian@gmail.com and hundredthmeridian@att.net to conduct official state

Hundredth Meridian Archive to Willamette Week.

The Hundredth Meridian Archive includes numerous emails containing information

be relevant to Oracles defenses and to show, among other things, that:

decision-making authority over the Oregon HIX;

might affect Kitzhabers reelection, rather than an objective assessment of Oracles

technology or the best interests of the people of Oregon.

ORACLES PUBLIC RECORD REQUESTS

pending. ORS 192.501(1).

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

the Kitzhaber administration maintained by the Department of Administrative Services

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

response to requests pending as of February 27, 2015.

Governors Office is attached as Exhibit 1. The request seeks:

The request to the

PAGE 8 - COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF PURSUANT

1. All records since October 1, 2013 related to, in whole or in part

PAGE 9 - COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF PURSUANT

Kitzhaber used jk.hundredthmeridian@gmail.com regularly to discuss state business, including

the states possession.

involved discussion of public business.

On May 19, 2015, Kitzhabers lawyer wrote to

June 1, 2015, Kitzhabers lawyer wrote to Mr. Isaak:

Memorandum in Opposition to Oracles Motion to Compel Production of Documents from

[W]ere currently uploading the

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

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

will begin reviewing the jk.hundredthmeridian emails next week.

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

transmission email to Oracles counsel on September 8.

Moreover, even with regard to the governor.kitzhaber@gmail.com account, Governor

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

particular public record.

PAGE 12 - COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF PURSUANT

jk.hundredthmeridian@gmail.com email address also used by former Governor Kitzhaber is

litigation would justify delaying production of these public records.