For some time I have been chronicling my efforts to examine and evaluate the due diligence conducted by the Port on its various economic development schemes before it invests public resources. Most recently, since last June, I have tried to establish what process the Port employed to confirm that an emergency should be declared on the Coos Bay Rail Link in order to bypass competitive bidding.

To that end I requested any documentation or evidence of due diligence conducted by the Port and was initially denied this information claiming the Port had signed a non-disclosure agreement with Roseburg Forest Products and that marketing strategies for any applicant for services are exempt from public records law. Elise Hamner wrote to me in a June 29, 2011 email –

Documents relating to negotiations with Roseburg Forest Products concerning market/sales strategies are exempt from disclosure under ORS 192.502 (17).

So I responded to Hamner, “Clearly the NDA is not exempted. Additionally, the ORS indicates that the exemptions apply to applicants for investment funds, loans, services, etc… Please provide a copy of the application from Roseburg FP and or any of its assigns for these emergency rail repair services. Feel free to redact ‘Marketing strategy information’.” After waiting for a month and issuing a second request and filing an appeal of denial with the Attorney General, Hamner admitted that RFP had not signed a NDA with the Port or filed an application for emergency services.

Now the Port says evidence of due diligence does exist but is claiming attorney client privilege as an excuse not to provide these documents.

The Oregon International Port of Coos Bay is responding to your public record request for “documentation that shows the Port conducted proper due diligence before declaring a state of emergency in order to bypass competitive bidding for repairs on the Coos Bay Rail Link to be made on behalf of Roseburg Forest Products.”
There are documents that exist related to your request, however some of those documents are exempt pursuant to ORS 192.502(9)(b), because of attorney client privilege set out in ORS 40.225.

My follow up email asks the Port to clarify just who is the client and who is the attorney covered under this claim of counsel privilege. Is the Port claiming that any documents it shares with its legal counsel are exempt from public records law? Or is the Port claiming that RFP is covered by some privilege with the Port’s counsel?

This latest denial argues that my suspicion the Port did no due diligence whatsoever is untrue, “documents exist” they say, but we the public are being denied any opportunity to vet the deals before the Port executes. The Port is refusing to let the public in on the game.

Additionally, sources allege that Port counsel is demanding $10,000 for 1500 pages of documents relating to coal export siting at the Port of Coos Bay, requested by the Sierra Club. That is almost $7 per page. The Port acts like the public don’t own and fund the Port’s activities.

Again, what is the Port hiding? It is hard not to believe they are attempting to hide their own incompetence and/or irresponsible handling of public assets.