I.A. Who Has the Right to Inspect Public Records?
Under ORS 192.420 "every person" has a right to inspect any nonexempt public record of a public body in Oregon. This right extends to any natural person, any corporation, partnership, firm or association, and any member or committee of the Legislative Assembly. ORS 192.410(2). The definition of "person" in ORS 192.410(2) does not mention a "public body," and we have concluded that a public body may not use the Public Records Law to obtain public records from another public body. Similarly, a public official, other than a legislator, acting within his or her official capacity may not rely on the Public Records Law to obtain records, although the individual could do so in his or her individual capacity.
Generally, the identity, motive and need of the person requesting access to public records are irrelevant. Interested persons, news media representatives, business people seeking access for personal gain, persons seeking to embarrass government agencies, and scientific researchers all stand on an equal footing.
However, the identity and motive of the person seeking disclosure of a particular public record may be relevant in determining whether a record is exempt from disclosure under a conditional exemption. ORS 192.501 conditionally exempts certain records from disclosure "unless the public interest requires disclosure in the particular instance." As the discussion of exemptions below demonstrates, many of the exemptions listed in ORS 192.502 call for a balancing of privacy rights, governmental interests, and other confidentiality policies, on the one hand, and the public interest in disclosure on the other. In cases requiring a balancing of interests, the identity of the requester and the use to be made of the record may be relevant in determining the weight of the public interest in disclosure. See What Is "The Public Interest in Disclosure," discussed below. In addition, the identity and motives of the requester may be relevant to whether a fee waiver or reduction is appropriate.
I.B. Who is Subject to the Public Records Law?
I.B.1. Public Bodies
ORS 192.420 broadly extends the coverage of the Public Records Law to any public body in this state. For purposes of the records law, ORS 192.410(3) defines the term "public body" as including:
every state officer, agency, department, division, bureau, board and commission; every county and city governing body, school district, special district, municipal corporation, and any board, department, commission, council, or agency thereof; and any other public agency of this state.
ORS 192.410(5) defines the term "state agency" to mean:
any state officer, department, board, commission or court created by the Constitution or statutes of this state but does not include the Legislative Assembly or its members, committees, officers or employees insofar as they are exempt under section 9, Article IV of the Oregon Constitution.
Thus, all state and local government instrumentalities are subject to the Public Records Law, including "public corporations" such as the Oregon State Bar, the SAIF Corporation, and the Oregon Health and Science University. 
Generally, legislative records are public records subject to inspection. However, a person may not demand disclosure of legislative records through a petition for disclosure to the Attorney General or to the circuit court during the period the legislature is in session and the 15 days immediately preceding the start of the session. See ORS 192.410(5).
I.B.2. Private Bodies
On its face, the Public Records Law does not apply to private entities such as nonprofit corporations and cooperatives. However, in a 1994 case, the Oregon Supreme Court held that if the ostensibly private entity is the "functional equivalent" of a public body, the Public Records Law applies to it. The court stated that the following factors, although not exclusive, are relevant in determining whether a private entity is the functional equivalent of a public body:
the entity's origin (was it created by government or was it created independently?);
the nature of the function(s) assigned and performed by the entity (are these functions traditionally performed by government or are they commonly performed by a private entity?);
the scope of the authority granted to and exercised by the entity (does it have the authority to make binding decisions or only to make recommendations to a public body?);
the nature and level of any governmental financial and nonfinancial support;
the scope of governmental control over the entity;
the status of the entity's officers and employees (are they public employees?).
In weighing the listed factors, the court explained that no single factor was strictly necessary and no one factor would be determinative in all instances. In weighing the significance of the various factors, the court's focus was on whether the policies underlying the Public Records Law required that the private entity's records be available for inspection.
The Court of Appeals subsequently applied the factors listed above to determine whether a city could be compelled to disclose records of a fire department. The city asserted that the fire department was an independent, non-profit organization, and the fire department had not been made party to the suit. The court determined that the analysis described above, including the specifically listed factors, provided the proper framework for deciding whether the city could be compelled to disclose the fire department's records, and answered in the affirmative.
Even if a private entity might meet this test, we have determined that not all of its records are necessarily subject to the public records law. Instead, we think it is appropriate to examine whether the entity possesses the requested records for purposes that are governmental in nature.
As government "privatizes" various governmental functions, as the Legislative Assembly exempts state agencies from the application of various statutes and as government is directed to perform various functions through contracts with private entities, numerous quasi-public entities are being created. A similar analysis would be used to determine if a quasi-public entity is a public body.
Even if a private entity is not the functional equivalent of a public body, if it contracts with a public body, its records may be obtained under the Public Records Law from the public body if the public body has custody of copies of the records. In addition, a public body by rule or contract may require private bodies with which it deals to make pertinent records available for public inspection. Records in a private body's possession may also be subject to disclosure where a public body actually owns the records.
I.C. What Records Are Covered by the Law?
The definition of "public record" in ORS 192.410(4) and the policy statement in ORS 192.420 make it clear that the records law applies broadly. ORS 192.410(4)(a) defines a "public record" as including:
any writing that contains information relating to the conduct of the public's business, including but not limited to court records, mortgages, and deed records, prepared, owned, used or retained by a public body regardless of physical form or characteristics.
The definition of "public record" includes "court records," paralleling the express reference to courts in the definition of "state agency." ORS 192.410(5). The intended scope of the term "court records" in ORS 192.410(4) is not clear from the legislative history of this statute. There is evidence in the legislative history that the legislature intended the term to embrace only those records enumerated in ORS 7.010(1) and (2) ("The records of the circuit and county courts include a register, judgment docket and jury register"; and "The record of the Supreme Court and the Court of Appeals is a register.") However, evidence in the history also suggests that the legislature intended for the Public Records Law to provide access to the materials submitted into evidence in a judicial proceeding. We leave this question for future resolution.
Public records include any "writing" containing information relating to the conduct of the public's business. ORS 192.410(4). The term "writing" is defined expansively by ORS 192.410(6) to mean:
handwriting, typewriting, printing, photographing and every means of recording, including letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, files, facsimiles or electronic recordings.
This definition includes information stored on virtually any medium. ORS 192.440(2) expressly recognizes that public records may be in "machine readable or electronic form." Telephone messages left on a voicemail system are writings under ORS 192.410(6), and therefore subject to inspection to the extent that they exist. However, public bodies are not required to retain their telephone messages.
Many public bodies use electronic mail (e-mail) for communications. E-mail is a public record. Even after individual e-mail messages are "deleted" from an individual's computer work area, the messages generally continue to exist on computer back-up tapes, which are also public records. As with any public record, a public body must make all nonexempt e-mail available for inspection and copying regardless of its storage location.
The Public Records Law does not impose on public bodies the duty to create public records. Public bodies are not required to create a record to disclose the "reasoning" behind their actions, or other "knowledge" their staff might have. Nor does the Public Records Law require public bodies to explain or to answer questions or provide legal research or analysis about their public records.
The distinction between disclosing an existing record and creating a record is especially important in relation to computer-stored data. We have concluded that although computer data and printouts generated for use by the public body are public records, a public body is not required to create new information using its computer programs or to create a new program to extract the data in its computer in a manner requested by the public.
Public bodies at every level of government use computers and electronic storage mechanisms extensively. The public's access to this information depends on its retrieval by public bodies through the use of computer software or programs developed or acquired by the public bodies at public expense. We believe that the Public Records Law requires public bodies to retrieve and make available nonexempt computer or electronically stored data and information, when requested, through the computer software or programs in use by the public body. See ORS 192.440(2). This does not mean that public bodies must develop or acquire new or additional software or programs in order to retrieve the requested information. Nor does it mean that public bodies must use existing programs to develop entirely new information. But when a public body uses computer software or programs to retrieve information for its own purposes, the public body must, upon request, use that same software or program to retrieve and make available existing data or information stored by the public body in computer or electronic form.
I.C.2. Prepared, Owned, Used or Retained
Records need not have been prepared originally by the public body to qualify as public records. If records prepared outside government contain "information relating to the conduct of the public's business," and are "owned, used or retained" by the public body, the records are within the scope of the Public Records Law. For example, we concluded that a contract giving an agency ownership of everything created by the contractor meant that a record never in the agency's possession was a public record subject to disclosure under the Public Records Law. We also concluded that a letter from the American Assembly of Collegiate Schools of Business to Portland State University (PSU) was a public record because it was retained and used by PSU.
However, a document prepared by a private entity does not become a public record merely because a public official reviews the document in the course of official business so long as the official neither uses nor retains the document. And not all documents in the possession of a public officer or agency employee necessarily constitute public records. For instance, correspondence between the Oregon Government Ethics Commission (OGEC) and a public official concerning the official's possible violation of ethical obligations in ORS chapter 244 is not a public record in the hands of the individual public official, because the OGEC investigation pertains to the official in his or her individual capacity and the liability of the public official is personal. That same correspondence may be a public record in the hands of OGEC.
I.D. How Can a Person Inspect or Obtain Public Records?
I.D.1. Making a Request
Requests for records of Oregon public bodies must be made under the Oregon Public Records Law, not the federal Freedom of Information Act (FOIA).  Nevertheless, public bodies should not deny a request for their records merely because the requester calls it a FOIA request. Oregon public bodies are not bound by FOIA timeframes or any other provisions of that federal act.
We believe that a public body may require the records request to be in writing. A state agency should adopt such a requirement in compliance with the state Administrative Procedures Act. See App B for a sample form of written records request. Requiring written requests assists in identifying the records requested. It also creates a record of the reason the public body released the record, which is helpful if releasing the record results in a legal challenge.
A public body must make available to the public a written procedure for making public records requests. The procedure must include: 1) the name of one or more persons to whom public record requests may be sent, with addresses; and 2) the amounts of and the manner of calculating fees that the public body charges for responding to requests for public records. See App B for a sample procedure.
When a person who is a party to litigation involving a public body or who has filed a tort claim notice under ORS 30.275(5)(a) uses the Public Records Law to request information relating to the litigation or notice, the party must notify the attorney for the public body. ORS 192.420(2). An attorney may request public records directly from a public body without consent of the public body's legal counsel, but the attorney could violate Section 4.2 of the Oregon State Bar's Rules of Professional Conduct by asking questions about the meaning of records or attempting to elicit admissions when the attorney knows that the public body is represented by legal counsel on a matter to which the records are relevant.
I.D.2. Records Custodian
The "custodian" of public records bears the duty to make nonexempt public records available for inspection and copying under the Public Records Law. The term "custodian" is defined as that public body mandated to create, maintain, care for or control the records. ORS 192.410(1)(b). More than one public body can be a custodian of a given public record, and each custodian is responsible for responding to public record requests directed to it. However, the term does not include a public body that has custody of a public record as an agent for another public body that is the custodian, unless the record is not otherwise available. ORS 192.410(1)(b). When a public body that is a custodian of public records has received the records from another public body, it should consult with the originating body regarding whether the records may be exempt from disclosure. See ORS 192.502(10).
I.D.3. Acknowledging a Request
If a request is made in writing, the public body must provide a response acknowledging receipt of the request "as soon as practicable and without unreasonable delay." The response must also include one of the following:
- A statement that the public body does not possess, or is not the custodian of, the public record.
Copies of all requested public records for which the public body does not claim an exemption from disclosure under ORS 192.410 to 192.505.
A statement that the public body is the custodian of at least some of the requested public records, an estimate of the time the public body requires before the public records may be inspected or copies of the records will be provided and an estimate of the fees that the requester must pay as a condition of receiving the public records.
A statement that the public body is the custodian of at least some of the requested public records and that an estimate of the time and fees for disclosure of the public records will be provided by the public body within a reasonable time.
A statement that the public body is uncertain whether the public body possesses the public record and that the public body will search for the record and make an appropriate response as soon as practicable.
A statement that state or federal law prohibits the public body from acknowledging whether the record exists or that acknowledging whether the record exists would result in the loss of federal benefits or other sanction. A statement under this paragraph must include a citation to the state or federal law relied upon by the public body.
See App B for a sample form of response to a public records request. The public body may request additional information or clarification from the requester for the purpose of expediting the public body's response to the request. Except in the rare cases where the last of these responses may be implicated, this requirement is straightforward. Although recipients of record requests may wish to take a brief time to make a more informed response, the primary goal of this process is to inform the requester that the process of responding is underway. A number of the responses permitted by the statute facilitate a prompt response by the public body, even in cases where it is uncertain whether the public body has custody of responsive records.
I.D.4. Proper and Reasonable Opportunity to Inspect
ORS 192.430 requires a custodian of public records to provide "proper and reasonable opportunities for inspection and examination of the records in the office of the custodian" during usual business hours to persons seeking access to public records. See App B for Helpful Hints for Responding to Public Records Requests. The public is entitled to inspect non-exempt records as promptly as a public body reasonably can make them available. How quickly a public body reasonably can make non-exempt records available will depend on factors like the specificity of the request, the volume of records requested, the staff available to respond to the records request, and the difficulty of determining whether any of the records are exempt from disclosure. In the usual case, we think that it should be possible to make requested records available within ten working days. We recognize that in some case more time – even significantly more time – may be required.
Merely failing to comply with a timeframe set by the requester is not a denial entitling the requester to petition for release of the records. We have also concluded that failing to timely acknowledge a public records request does not, by itself, amount to a denial of the request.
The custodian's duty to provide reasonable opportunities for inspection of records applies to records "maintained in machine readable or electronic form." ORS 192.430(1). The law also requires the custodian to provide persons inspecting records with "reasonable facilities" for making memoranda or abstracts from the records. In short, the law directs public bodies to take reasonable steps to accommodate members of the public while they inspect public records.
The Americans with Disabilities Act (ADA) prohibits discrimination against persons with disabilities in governmental activities and requires public bodies to ensure that their communications with individuals with disabilities are as effective as communications with others. Providing nonexempt public records under the Oregon Public Records Law is a governmental activity covered by the ADA. Thus, when making public records available, a public body must provide an opportunity for individuals with disabilities to request an alternative form (large print, Braille, audio tape, etc.). The public body must give primary consideration to the choice expressed by the individual, but is not required to provide personal devices such as prescription glasses or readers for personal use or study. The public body is entitled to consider the resources available for the program from which the records are sought in responding to a request for alternative format, and may conclude that compliance with the request would create undue burdens. Before refusing a request for accommodation under the ADA, a public body that is unsure of its obligations should consult with its legal counsel.
Note that a public body may not charge a person with a disability to cover any additional costs of providing records in an alternative form, although the public body may charge a fee for all other "actual costs" that may be recovered under the Public Records Law just as it would for any other requester. See Waiver or Reduction of Fees, discussed below.
A person may require the public body to provide a copy of a requested record if the record is susceptible to copying. ORS 192.440(1) also requires public bodies to furnish "reasonable opportunity to inspect or copy" public records. This duty includes allowing requesters to use their own equipment to make copies, subject to reasonable restrictions imposed by the public body to protect the integrity of the records and to prevent interference with the regular duties of the public body. A person requesting a record generally can choose between receiving a copy of the record provided by the custodian, physically inspecting the record, or making a copy of the record using the requester's own equipment at the custodian's place of business.
Although an individual's signature submitted under ORS chapter 247 for the purpose of registering to vote is subject to inspection as a public record, it is not subject to the copying requirements. ORS 192.440(8). Oregon election law prohibits the copying of such a signature, except by elections officials acting in their official capacity for purposes of administering election laws and rules.
ORS 192.440(3) explains a custodian's duty to provide copies of records maintained in machine readable or electronic form:
If the public record is maintained in a machine readable or electronic form, the custodian shall provide a copy of the public record in the form requested, if available. If the public record is not available in the form requested, the custodian shall make the public record available in the form in which the custodian maintains the public record.
See App A for discussion of copyrighted materials. See also Section 1.D.6.b. Fees, below, for discussion of costs.
I.D.6. Public Body Prerogatives
The statutes implementing the public's right to inspect nonexempt public records allow "reasonable" limits on inspection, examination and copying of public records. Those "reasonable" limits are allowed in order to protect identified governmental interests.
I.D.6.a. Protective Rules
The Public Records Law authorizes a public body to take reasonable measures to preserve the integrity of its records and to maintain office efficiency and order:
The custodian of the records may adopt reasonable rules necessary for the protection of the records and to prevent interference with the regular discharge of duties of the custodian.
ORS 192.430(2). When public bodies establish protective rules to maintain the integrity of public records or to prevent interference with the duties of the records custodian, we recommend they do so with notice and opportunity for public comment. This avoids the appearance of arbitrary action. Public bodies subject to the state Administrative Procedures Act must adopt such rules in conformity with that Act. A rule designed solely to make public access to records more difficult is not valid. A rule or regulation carefully designed to prevent destruction of public records or to expedite staff identification of requested records is lawful. For example, we denied a petition for disclosure of records where the requester failed to comply with the Department of Corrections' administrative rule requiring that requests be in writing and "specify the record(s) from which information is requested, if known."
Again the crucial term is "reasonable." The statutory right to inspect public records encompasses a right to examine original records, and inspection of originals ordinarily should be allowed if requested. But the right to inspect does not include a right to rummage through file cabinets, file folders or electronic files, and a public body may adopt administrative measures to supervise original document review. Nor does the right to examine original records require inspection of an original record that contains some information that is exempt from disclosure. In such a case, a public body acts reasonably if it furnishes a copy of the original, with the exempt material blanked out. See ORS 192.505. Furthermore, a public body's rule or determination under ORS 192.430 that copies will be furnished in lieu of inspection of original documents would be valid if "necessary for the protection of the records and to prevent interference with the regular discharge of [the public body's] duties."
The Public Records Law authorizes a public body to establish fees "reasonably calculated to reimburse the public body for the public body's actual cost of making public records available." ORS 192.440(4)(a). The statute also permits a public body to include in its fees "costs for summarizing, compiling or tailoring the public records, either in organization or media, to meet the person's request." ORS 192.440(4)(a). A public body has authority to charge a fee in excess of $25 only if it first provides a written cost estimate to the requester and receives confirmation that the requester wants the public body to proceed with responding to the request. ORS 192.440(4)(c). A public body may require prepayment of its estimated charges before taking further action on a request. Of course, if the actual charges are less than the prepayment, any overpayment should be refunded promptly.
"Actual cost" may include a charge for the time spent by the public body's staff in locating the requested records, reviewing the records in order to delete exempt material, supervising a person's inspection of original documents in order to protect the records, copying records, certifying documents as true copies, or sending records by special methods such as express mail. "Actual cost" also may include the cost of time spent by the public body's attorney reviewing, redacting and segregating records at the public body's request, although the cost of the attorney's time spent determining the application of the Public Records Law is not a recoverable cost.
Public bodies may charge for search time even if they fail to locate any records responsive to the request or even if the records located are subsequently determined to be exempt from disclosure. However, public bodies may not include charges for any additional costs incurred to provide records in an alternative format to individuals with vision or hearing impairments when required by the Americans with Disabilities Act.
I.D.6.b.(1) Fee Schedules
As noted above, public bodies must make available to the public the amounts of and the manner of calculating fees that the public body charges for responding to requests for public records. We recommend that public bodies establish their fees for public record inspection and copying with notice and opportunity for public comment so that the public is aware of the justification for the fees. State agencies should adopt their fee schedules in compliance with the state Administrative Procedures Act.
A public body may wish to consider adopting a fee schedule that provides some degree of flexibility in assessing fees, but it may not charge more than its actual cost. A per-page charge for copies may include the reasonably calculated cost of a routine file search, and in that case no additional charge should be made except where the public body incurs additional costs due to extraordinary circumstances. In other words, a per-page charge in excess of the cost of the copy itself (paper, ink, equipment depreciation, etc.) is lawful if the excess is related to the additional costs of making the copy, including the staff time necessary to locate, prepare and copy the record. However, where an agency's per-page fee exceeds the cost of the copy itself and the public body also charges for its other expenses, the fee may not be reasonably calculated to reimburse the public body's actual recoverable costs.
Whether a per-page or other fee approach is adopted, public bodies must be prepared to demonstrate that their fee schedules are based upon an evaluation of their actual costs in making public records available for inspection or copying. While there is no provision in the Public Records Law that authorizes a person to petition the Attorney General to review an agency's fees established under ORS 192.440(4), the Oregon Court of Appeals has held that state courts have jurisdiction to review the reasonableness of a public body's fees. The Attorney General's authority to enforce the inspection provisions of the public records law may require the Attorney General to evaluate an agency's fees where the amount of the fee in comparison to the nature of the request suggests that the true purpose of the fee is to constructively deny the request, rather than to recoup the agency's actual costs.
I.D.6.b.(2) Waiver or Reduction of Fees
ORS 192.440(5) and (6) allow a waiver or reduction of fees and provide a process for petitioning from unreasonable denials of fee waivers or reductions:
(5) The custodian of any public record may furnish copies without charge or at a substantially reduced fee if the custodian determines that the waiver or reduction of fees is in the public interest because making the record available primarily benefits the general public.
(6) A person who believes that there has been an unreasonable denial of a fee waiver or fee reduction may petition the Attorney General or the district attorney in the same manner as a person petitions when inspection of a public record is denied under ORS 192.410 to 192.505. The Attorney General, the district attorney and the court have the same authority in instances when a fee waiver or reduction is denied as it has when inspection of a public record is denied.
The law requires a three-part analysis to evaluate fee waiver or reduction requests. Under this analysis, a public body determines (a) whether a waiver or reduction is prohibited by law, (b) whether the "public interest" test is satisfied, and (c) whether to grant a fee waiver or reduction.
I.D.6.b.(2)(a) Prohibitions on Fee Waivers/Reductions
Some public bodies cannot waive or reduce the fees for making records available, even if the provisions of ORS 192.440(5) are met. If a public body's sole funding for a particular program is from statutorily or constitutionally dedicated funds, the public body may not provide public records at less than its actual costs because to do so would be an illegal diversion of those funds. For example, we have advised the Motor Vehicles Division that because it is supported by funds dedicated by Article IX, section 3a of the Oregon Constitution to specific "highway purposes," the division must charge a fee to cover its actual costs in responding to public record requests, except when the cost of charging for the records would approach or be greater than the cost of furnishing the information. Public bodies that believe they may be prohibited from providing public records without charge should consult their legal counsel. If a fee waiver or reduction is not legally prohibited, public bodies should proceed with the analysis below.
I.D.6.b.(2)(b) Public Interest Test
Under ORS 192.440(5), a public body may reduce or waive fees if it determines that doing so is in "the public interest because making the record available primarily benefits the general public." The Oregon Court of Appeals construed the public interest requirement for granting a fee waiver or reduction in a 2005 decision. It concluded that "[a] matter or action is commonly understood to be 'in the public interest' when it affects the community or society as a whole, in contrast to a concern or interest of a private individual or entity." In addition, it stated that "a matter or action 'primarily benefits the public,' * * * when its most important or significant utility or advantage accrues to the public." Therefore, the public interest test is satisfied "when the furnishing of the record has utility – indeed, its greatest utility – to the community or society as a whole."
The Court of Appeals' analysis is consistent with the federal courts' construction of former 5 USC § 552(a)(4)(A), the fee waiver standard contained in the federal Freedom of Information Act before that section was amended in 1986. The public interest test in ORS 192.440(5) was modeled on that federal statute. Therefore, we continue to look to federal cases applying that statute for guidance as to how Oregon courts may apply the state standard.
Application of the public interest test requires analysis of whether disclosure of a record will benefit the interests of the community or society as a whole, i.e., "the public." A personal benefit to be derived by the requester alone is insufficient to permit a fee waiver. Under federal law, if a requester seeks information relating solely to the requester in order to aid his or her defense against criminal prosecution, there is insufficient public benefit to require a fee waiver. We have likewise concluded that the disclosure of records sought for that purpose does not satisfy the public interest test under Oregon law. 
Similarly, if a requester seeks records relating to the requester, a mere allegation that the public body has treated the individual oppressively, absent a broader public interest, does not satisfy the public interest standard. On the other hand, investigative reporters with established credentials, who sought records concerning military aviation safety with the intent of reporting on those records, were able to satisfy the public interest standard by demonstrating that fee requirements inhibited their ability to obtain government records. And a requester who intended to use records in connection with lectures and articles on the history of the labor movement, with no financial benefit to himself, demonstrated sufficient public interest.
However, the public interest in the subject matter covered in the requested records is insufficient when the requester fails to demonstrate the ability to disseminate the information to the public. Additionally, if the requester seeks technical information, the public interest standard demands a showing that the requester is able to understand that information and disseminate it to the public in a meaningful form.
The federal courts have required requesters to identify the asserted public interest in disclosure with reasonable specificity, and have permitted federal agencies to infer a lack of sufficient public interest when a requester fails to do so. Public bodies may seek additional information from a requester to help clarify the basis for seeking a fee waiver. In determining whether the requester has established a sufficient public interest, relevant factors include: the requester's identity, the purpose for which the requester intends to use the information, the character of the information, whether the requested information is already in the public domain, and whether the requester can demonstrate the ability to disseminate the information to the public. The requester's inability to pay is also a factor, but is not, on its own, a sufficient basis for a fee waiver.
I.D.6.b.(2)(c) Decision on Fee Waiver or Reduction
ORS 192.440(5) does not require a public body to grant a fee waiver or reduction, even if the public interest test is met. Instead, the decision to waive or reduce fees is discretionary with the public body, although it must act reasonably. The Oregon Court of Appeals has said that reasonableness is "an objective standard," which requires examination of "the totality of the circumstances presented." Requests for a fee waiver or reduction must be evaluated on a case-by-case basis.
Notwithstanding its directive to consider all of the relevant circumstances, the In Defense of Animals decision does not explain how various circumstances should be weighed as part of an overall assessment of reasonableness. The court does observe that "the Public Records Law as a whole embodies a strong policy in favor of the public's right to inspect public records." And the court notes that "the public body's discretion must be exercised within the range of lawful options available to it under the relevant law." Consequently, the appropriate inquiry appears to be whether the public body's decision impedes the policies favoring disclosure of public records to the extent that the decision cannot be said to reflect a "lawful option" under the Public Records Law. In general, we think that a public body's fee-waiver decision should consider (1) the character of the public interest in the particular disclosure, (2) the extent to which the fee impedes that public interest, and (3) the extent to which a waiver would burden the public body. Of course, we do not foreclose the possibility that other considerations may be appropriate in any given case.
Factors relevant to evaluating the burden on the public body include financial hardship on the public body, the extent of time and expense and interference with the business of the public body, the volume of the records requested, the necessity to segregate exempt from nonexempt materials, and the extent to which an inspection of the records is insufficient for the public interest or for the particular needs of the requester. We have concluded that a public body may consider the aggregate effect of numerous public records requests from the same requester in assessing its burden.
Under ORS 192.440(6), the procedure for challenging a public body's denial of a fee waiver or reduction is the same as that for challenging the denial of the right to inspect public records. On review, the issue is whether there has been an "unreasonable" denial of a fee waiver or fee reduction. ORS 192.440(6).
We have concluded, under the facts of several cases, that fee reductions of approximately 25 percent were not unreasonable. But we review petitions challenging fee waiver denials or reductions on a case-by-case basis.
I.D.6.c. Consultation with Legal Counsel
Public bodies often must consult with legal counsel regarding public record requests. Briefly postponing the disclosure of records for that purpose does not violate the Public Records Law. It is reasonable for a public body to obtain legal advice before responding to an extensive public records disclosure request when compliance will seriously disrupt the records custodian's operations. Similarly, it is reasonable for a public body to consult counsel about disclosure of documents that appear to be exempt, in whole or in part, from the disclosure requirements of the Public Records Law. When a public body receives a request for records that the public body believes may be pertinent to a legal claim or litigation against the public body, it is also reasonable to consult counsel.
We advise state agencies to consult with counsel when presented with physically extensive or legally complex requests for disclosure of public records. We have concluded that "when a public body does so, it does not thereby actually or constructively deny the request." However, it is unreasonable to use consultation with counsel merely as a tactic to delay or to frustrate the inspection process.
I.D.6.d. Destruction of Public Records
ORS 192.410 to 192.505, the statutes to which we refer in this manual, do not govern the retention and destruction of public records. The statutes regulating the custody and maintenance of public records by state agencies and political subdivisions of the state are ORS 192.001 to 192.170. Those provisions also confer rulemaking authority relating to retention and destruction on the State Archivist. For purposes of the record retention and destruction laws, "public record" includes correspondence, but excludes extra copies of a document preserved only for convenience. ORS 192.005(5)(d). The State Court Administrator is authorized to prescribe minimum retention schedules for all records of the state courts and the administrative offices of the state courts. Legislative records are excluded from the provisions on retention in ORS 192.001 to 192.170; other statutes apply specifically to legislative records.
Under the retention and destruction provisions, state agencies and political subdivisions must follow the document retention schedule rules promulgated by the State Archivist under ORS 192.105. Even public records exempt from disclosure are subject to the retention schedules. For more information about document retention schedules and preservation of public records, contact the State Archivist, 800 Summer Street, Salem, OR 97310.
It is a crime to knowingly destroy, conceal, remove or falsely alter a public record.
I.E. What Public Records Are Exempt from Disclosure?
I.E.1. The Nature of the Exemptions
The Public Records Law is primarily a disclosure law, not a confidentiality law. Exemptions in ORS 192.501 and 192.502 are limited in their nature and scope of application because the general policy of the law favors public access to government records. Accordingly, a public body that denies a request for records has the burden of proving that the information is exempt from disclosure. ORS 192.450(1); ORS 192.490(1). Oregon courts interpret the exemptions of the Public Records Law narrowly, as does the Attorney General.
A public body is ordinarily free to disclose a record or information even if an exemption applies to that record or information. But there are some categories of records and information that public bodies are legally prohibited from disclosing or that they may disclose only to specified entities or in specified circumstances. For example, ORS 192.445 prohibits a public body from disclosing specified records containing home address, personal telephone number or electronic mail address if the requirements of that section are met. ORS 192.447 prohibits a public body from disclosing an employee's identification badge or card without that employee's written consent if the badge or card meets the criteria of the section. Also, the "catch-all" exemption in ORS 192.502(9)(a) incorporates Oregon statutes outside the Public Records Law, and some of those prohibit the public release of certain types of information. For example, ORS 314.835 prohibits and criminally punishes the disclosure of income tax return information, except when the disclosure is made to certain public officials. The federal law exemption in ORS 192.502(8) incorporates only federal laws that prohibit disclosure of particular types of records, such as student record information that cannot be disclosed by virtue of 20 USC § 1232g.
In some other cases, disclosure of exempt records might create potential legal liabilities to third parties. This possibility might arise, for example, with regard to disclosures of trade secret information that is exempt under ORS 192.501(2), financial account information that is exempt under ORS 192.501(27), Social Security numbers that are exempt under ORS 192.501(28) and 192.502(3), information in paternity or support records that is exempt under ORS 192.502(34), and information that is exempt under ORS 192.502(2) because its disclosure would constitute a highly offensive invasion of personal privacy. In such cases, a public body should consult with its attorney before deciding to disclose exempt records.
But, more commonly a public body may choose to disclose records even if they are exempt from disclosure. The availability of an applicable exemption, without more, simply means that disclosure is not required by the Public Records Law.
Public bodies receiving a public records request should first determine whether disclosure is prohibited by ORS 192.445, ORS 192.447, or by another state or federal law. If disclosure is not prohibited, and the public body sees no reason to withhold a requested record, the public body may disclose the record without further analysis.
Even if the public body perceives reasons to withhold the record, it must disclose the record unless an express statutory exemption applies to the record. Naturally, the type of information appearing in a record will always be relevant to determining whether an exemption applies. Many exemptions in the Public Records Law also require a public body to weigh public interests favoring nondisclosure against public interests favoring disclosure, with a presumption favoring disclosure. Moreover, unless disclosure is prohibited, the policies underlying the Public Records Law mean that public bodies should generally favor disclosure even if an exemption from disclosure is available.
Whenever a public body discloses less than all of the information requested because it determines that one or more records, or portions of records, are exempt from disclosure, the public body should inform the requester of that fact. The public body should also state the reason for nondisclosure. Communicating with the requester places the requester on notice that additional records exist and gives the requester the information necessary to decide whether to seek review of the denial.
If a public body asserts an exemption that is ultimately rejected by the courts, the public body may be required to pay the requester's litigation costs and attorney fees, as well as its own costs. See discussion of Court Proceedings, below. In addition, knowingly concealing a public record is a crime unless there is lawful authority for concealment. ORS 162.305.
I.E.2. What Are Conditional and Unconditional Exemptions from Disclosure?
All of the exemptions described in ORS 192.501 are conditional; they exempt certain types of information from disclosure "unless the public interest requires disclosure in the particular instance." In other words:
[T]he policy [underlying the conditional exemption statutes] is that disclosure decisions should be based on balancing those public interests that favor disclosure of governmental records against those public interests that favor governmental confidentiality, with the presumption always being in favor of disclosure.
The conditional exemptions, therefore, require public bodies to conduct a careful balancing of confidentiality interests against public disclosure interests.
Although ORS 192.502 does not contain a blanket public interest balancing test like the one in ORS 192.501, several of the exemptions described in ORS 192.502 are conditioned on the extent to which recognized governmental and private interests in confidentiality outweigh the public interest in disclosure. Others, however, are "unconditional." With respect to those "unconditional" exemptions, the legislature has determined that confidentiality interests outweigh public disclosure interests as a matter of law.
In determining whether an exemption applies, public bodies should be aware that the identity of the requester and the circumstances surrounding the request are irrelevant to the question whether the information fits within the category of the exemption. The circumstances of a particular request become relevant only if the requested information comes under an exemption that requires a balancing of interests. In that context, the requester's purpose in seeking disclosure may be relevant to determining whether the public interest requires disclosure.
I.E.3. What Is "The Public Interest in Disclosure"?
To properly balance public and private interests in confidentiality against the public interest in disclosure, a public body must know what the term "public interest in disclosure" means. The Public Records Law does not define the term. However, the Oregon Court of Appeals has stated that "the Public Records Law expresses the legislature's view that members of the public are entitled to information that will facilitate their understanding of how public business is conducted." Similarly, the Court of Appeals previously characterized the public interest in disclosure as "the right of the citizens to monitor what elected and appointed officials are doing on the job." This might include, for example, the right to inspect records of alleged misuse and theft of public property by public employees or to inspect records that bear directly on the integrity of a high ranking police officer to enforce the law evenhandedly. Public interest means the value to the public at large, not to a particular person at a particular time. For example, we concluded that a labor organization's interest was private and did not represent the public interest when the interest of the organization's membership in obtaining disciplinary documents could be remedied under state collective bargaining laws.
Accordingly, we advise public bodies to measure confidentiality interests against the public interest in learning, not only how the public bodies generally are conducting their business, but also how they are administering particular programs. If disclosure would prejudice or prevent the carrying out of the public body's functions, that fact would be relevant. The Oregon Court of Appeals has indicated that the fact that a government action attracts significant attention or provokes heated controversy may be relevant to weighing the strength of the public interest in disclosure of related public records.
Although the Public Records Law does not require a requester to reveal the reasons for requesting public records, providing that information can help to evaluate the public interest. For example, when a requester did not state the reason for the request, the lack of information prevented our office from finding that the public interest, by clear and convincing evidence, required disclosure of the names and addresses of some employees of the Oregon Department of Human Services whom the requester had threatened to harass.
I.E.4. The Catalogue of Exemptions.
I.E.4.a. The Personal Safety Exemption
ORS 192.445(1) prohibits disclosure of certain information from public records. This provision states:
An individual may submit a written request to a public body not to disclose a specified public record indicating the home address, personal telephone number or electronic mail address of the individual. A public body may not disclose the specified public record if the individual demonstrates to the satisfaction of the public body that the personal safety of the individual or the personal safety of a family member residing with the individual is in danger if the home address, personal telephone number or electronic mail address remains available for public inspection.
See also discussion below of ORS 192.501(20), requiring the county clerk to keep an elector's residence address exempt from disclosure on similar grounds. The exemption in ORS 192.445 does not apply to county property and lien records.
Under ORS 192.445(3) a request for nondisclosure of home address, personal telephone number or electronic mail address information in voter registration records remains in effect until the individual must update the individual's voter registration, at which time the individual may apply for another exemption. A request for nondisclosure of this information in other public records remains in effect for five years after the public body receives the request, unless the public body receives a request for termination. Similarly, an individual may make another request for nondisclosure at the end of the five-year period.
Unlike most other exemptions, which merely permit a public body to refuse to disclose records, ORS 192.445 prohibits a public body from disclosing records if the requirements of this section have been met. However, ORS 192.445(4) permits a public body to disclose an exempt home address, personal telephone number or electronic mail address in response to a court order, a request from a law enforcement agency, or with the individual's consent. ORS 192.445(5) provides that a public body may not be held liable for granting or denying an exemption from disclosure of an individual's home address, personal telephone number or electronic mail address, or for releasing that information if an exemption is granted.
Under ORS 192.445, the Attorney General must adopt uniform rules prescribing the procedures for an individual to submit a request to a public body that a home address, personal telephone number or electronic mail address not be disclosed, the evidence an individual must provide to establish that disclosure of the information would constitute a danger to personal safety, and the procedures for an individual to notify the public body that disclosure would no longer constitute a danger. These rules are found in OAR 137-004-0800 and are reprinted in App H. These uniform rules are effective without further rulemaking by state agencies and must be followed by all public bodies without modification.
Uniform Rule 137-004-0800 requires an individual to provide evidence sufficient to establish to the satisfaction of the public body that disclosure of a home address, personal telephone number or electronic mail address would constitute a danger to the personal safety of the individual or a family member residing with the individual. OAR 137-004-0800(2)(c). The rule lists specific documents that are acceptable. OAR 137-004-0800(2)(c)(B)-(L). When a state agency, following the requirements of the uniform rule, concludes that disclosure of a home address, personal telephone number or electronic mail address is prohibited under ORS 192.445, the Attorney General's office will not substitute its judgment for the agency's when responding to a request to review the agency's decision under ORS 192.450(1).
OAR 137-004-0800(3) requires the public body to notify the individual requesting nondisclosure of its decision. A public body may ask the individual to submit additional information to assist it in making its decision.
I.E.4.b. The Public Employee Photo ID Badge and Card Exemption
ORS 192.447 prohibits disclosure of public employee photo identification badges or cards without the employee's written consent. This provision states:
(1) As used in this section, "public body" has the meaning given that term in ORS 174.109.
(2) A public body may not disclose the identification badge or card of an employee of the public body without the written consent of the employee if:
(a) The badge or card contains the photograph of the employee; and
(b) The badge or card was prepared solely for internal use by the public body to identify employees of the public body.
(3) The public body may not disclose a duplicate of the photograph used on the badge or card.
Unless an employee consents in writing, this provision prohibits a public body from disclosing the employee's identification badge or card if it contains a photograph of the employee and was prepared solely for internal use by the public body to identify its employees. The provision also prohibits disclosure of a duplicate of the photograph appearing on the badge or card.
This prohibition applies to a "public body" as defined in ORS 174.109, which differs slightly from the definition of "public body" that applies to the remainder of the Public Records Law. See ORS 192.410(3). For example, the following entities are statutorily excluded from the definition of "public body" in ORS 174.109, so the prohibition in ORS 192.447 does not apply to them:
Oregon Health and Science University, the Oregon State Bar, any intergovernmental entity formed by a public body with another state or with a political subdivision of another state, or any intergovernmental entity formed by a public body with an agency of the federal government.
See ORS 174.108(3). An entity uncertain of its status under ORS 174.109 should consult with its legal counsel.
I.E.4.c. The "Conditional" Exemptions of ORS 192.501
Each of the conditional exemptions listed in ORS 192.501 exempts a specific type of record or information "unless the public interest requires disclosure in the particular instance." Thus, for each of these exemptions, public bodies must always apply a balancing test on a case-by-case basis.
I.E.4.c.(1) Public Records Pertaining to Litigation
ORS 192.501(1) conditionally exempts:
Records of a public body pertaining to litigation to which the public body is a party if the complaint has been filed, or if the complaint has not been filed, if the public body shows that such litigation is reasonably likely to occur. This exemption does not apply to litigation which has been concluded, and nothing in this subsection shall limit any right or opportunity granted by discovery or deposition statutes to a party to litigation or potential litigation.
The purpose of this exemption is to place governmental bodies, as parties or potential parties to litigation, on an even footing with private parties. Therefore, the Attorney General recommends that public bodies invoke this exemption only on the advice of legal counsel.
The Court of Appeals has construed this exemption very narrowly, in order "to further the statutory policy that government records be open to the public." The court held that the litigation exemption applies only to records "compiled or acquired by the public body for use in ongoing litigation or * * * litigation [that] is reasonably likely to occur." In the court's view the exemption does not apply to records collected in the ordinary course of business, even if those records subsequently become relevant to litigation. The court cited, with general approval, a California decision equating a similar California provision with the protections afforded by the lawyer-client privilege and the "work product" doctrine. However, the Oregon Court of Appeals declined to determine that the exemption aligned precisely with those protections.
Public bodies need to investigate and prepare in advance for expected litigation. Consequently, we think it appropriate to interpret the phrase "reasonably likely" to mean "more likely than not," rather than "imminent." Ultimately, of course, the likelihood of litigation is not a scientific or mathematical question, but a pragmatic one. One indication that litigation is reasonably likely to occur is that a person has filed a notice of tort claim against the public body. Notes or reports prepared in response to such a notice would fall within the exemption.
The legislative history makes clear that the litigation exemption does not apply to administrative proceedings, such as contested case hearings. The fact that any administrative proceeding may lead to litigation does not justify claiming this exemption. If, however, the public body objectively can show that court litigation is "reasonably likely to occur," the exemption may be claimed for information gathered for that litigation, regardless of whether an administrative proceeding also may be involved.
The litigation records exemption is conditional. The public body must determine whether the "public interest requires disclosure in the particular instance." Generally, the availability of ordinary tools of discovery would negate any need for an individual to use the Public Records Law to gain access to records for purposes of pursuing private litigation. An interest in private litigation does not qualify as a public interest requiring disclosure.
The litigation exemption in ORS 192.501(1) does not apply to litigation that has been concluded. Litigation has not been concluded until there is a final judgment and all appeal rights have been exhausted.
Records that may not be exempt under this exemption could be exempt under ORS 192.502(9)(a), which incorporates limitations on discovery of information that is privileged under ORS 40.225, subject to the limitations in ORS 192.502(9)(b). We also note that a public body or officer that is a defendant in a tort action under ORS 30.260 to 30.300, or in an action under ORS 294.100 for unlawful expenditure of public funds, may not enter into a settlement or compromise of that action that requires the terms of the settlement or compromise to be confidential, unless: (1) federal law requires the specific terms and conditions to remain confidential; or (2) the court orders to remain confidential terms or conditions that reveal the identity of a victim of sexual abuse or a person who is under 18 years of age, based on written findings that specific privacy interests of the person outweigh the public's interest in the terms of the settlement or compromise. Even when settling other types of cases, public bodies may not "exempt public records from disclosure simply by promising * * * confidentiality. Absent statutory authority, such action would violate both the letter and the spirit of the relevant statutes which reflect 'the strong and enduring policy that public records and governmental activities be open to the public.'"
Lastly, we note that when a party to civil litigation involving a public body uses the Public Records Law to request information relating to the litigation, the party must send a written request to both the public body and its attorney. ORS 192.420(2). This rule also applies when the requester has filed a notice of tort claim under ORS 30.275(5)(a). See Section I.E.4.c.(1) Public Records Pertaining to Litigation.
I.E.4.c.(2) Trade Secrets
ORS 192.501(2) conditionally exempts:
Trade secrets. "Trade secrets," as used in this section, may include, but are not limited to, any formula, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented, which is known only to certain individuals within an organization and which is used in a business it conducts, having actual or potential commercial value, and which gives its user an opportunity to obtain a business advantage over competitors who do not know or use it.
Records withheld from disclosure under this provision must meet all four of the following criteria:
the information must not be patented;
it must be known only to certain individuals within an organization and used in a business the organization conducts;
it must be information that has actual or potential commercial value; and,
it must give its users an opportunity to obtain a business advantage over competitors who do not know or use it.
We have concluded that fee schedules and price lists provided in response to a request for proposal can meet the criteria for exemption as trade secrets. We have also concluded that lightning strike data made available to the Oregon Department of Forestry under a license with a private corporation met the criteria. More recently, we have concluded that an insurer's projections of trend, target loss ratios, and accidental death rates, submitted to the Insurance Division as part of the insurer's rate filing, were exempt as trade secrets.
The Uniform Trade Secrets Act defines "trade secret" in terms that may be broader than the definition in the Public Records Law. Its definition, ORS 646.461(4), states:
"Trade secret" means information, including a drawing, cost data, customer list, formula, pattern, compilation, program, device, method, technique or process that:
(a) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and
(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
The relationship between the treatment of trade secrets under ORS 192.501(2) and under the Uniform Trade Secrets Act is somewhat complex. ORS 192.501(2) authorizes, but does not require, a public body to refuse to disclose a trade secret, unless the public interest requires otherwise in a particular case. On the other hand, the Uniform Trade Secrets Act (UTSA) prohibits "misappropriation" of a trade secret, and provides civil sanctions for such misappropriation.
We believe that by retaining the conditional exemption for trade secrets when it enacted the UTSA, the legislature acknowledged a public interest in the non-disclosure of trade secrets. As a result, we believe it is appropriate to give heightened scrutiny to contentions that the public interest requires the disclosure of trade secrets. In previous editions, we have further suggested that ORS 192.502(9), the "catchall" exemption discussed in Section I.E.4.d.(9) Other Oregon Statutes Establishing Specific Exemptions, may make trade secrets unconditionally exempt from disclosure under certain circumstances. We no longer believe that is correct.
When it adopted the UTSA, the Oregon legislature included a provision immunizing public bodies from misappropriation claims. To qualify for this immunity, the disclosure must be made pursuant to an order issued under the Public Records Law or on the advice of an attorney authorized to advise the public body. ORS 646.473(3). This provision indicates that the legislature expected that disclosures under the Public Records Law might include information otherwise protected as a trade secret. The legislature chose to address that possibility by giving public bodies immunity against any resulting misappropriation claims. Notably, the legislature did not amend the existing conditional exemption for trade secrets. Moreover, at the time the UTSA was adopted, the Public Records Law did not contain a "catchall" exemption. Instead, the Public Records Law included an enumerated list of specific statutes providing for some type of confidentiality. The legislature did not add the UTSA statutes to that list. Oregon Laws 1987 ch 537 (enacting UTSA). We therefore conclude that, in adopting the UTSA, the legislature did not intend to make trade secrets unconditionally exempt from disclosure under the Public Records Law.
Nevertheless, absent an order compelling disclosure under the Public Records Law, a public body should not release any trade secret information without determining that the public interest requires disclosure and consulting with an attorney authorized to give it legal advice. Moreover, we look to the UTSA, and to cases construing the UTSA, for guidance with respect to whether information is or is not a "trade secret" under the Public Records Law. We note that ORS 192.501(2) does not purport to absolutely delineate trade secrets. Instead, the exemption describes what trade secrets "may include, but are not limited to."
Public bodies that anticipate receiving some trade secret information in response to a request for proposal or other bidding request should specify in their solicitation documents that any trade secret information must be specifically identified. However, the law does not require a trade secret to be specifically labeled as such in order to receive protection as a trade secret. In any event, the public body may only assure the proposer that it will protect the information to the extent permitted by the Public Records Law.
I.E.4.c.(3) Criminal Investigatory Material
ORS 192.501(3) conditionally exempts:
Investigatory information compiled for criminal law purposes. The record of an arrest or the report of a crime shall be disclosed unless and only for so long as there is a clear need to delay disclosure in the course of a specific investigation, including the need to protect the complaining party or the victim. Nothing in this subsection shall limit any right constitutionally guaranteed, or granted by statute, to disclosure or discovery in criminal cases. For purposes of this subsection, the record of an arrest or the report of a crime includes, but is not limited to:
(a) The arrested person's name, age, residence, employment, marital status and similar biographical information;
(b) The offense with which the arrested person is charged;
(c) The conditions of release pursuant to ORS 135.230 to 135.290;
(d) The identity of and biographical information concerning both complaining party and victim;
(e) The identity of the investigating and arresting agency and the length of the investigation;
(f) The circumstances of arrest, including time, place, resistance, pursuit and weapons used; and
(g) Such information as may be necessary to enlist public assistance in apprehending fugitives from justice.
Unlike the litigation exemption in ORS 192.501(1), the criminal investigation exemption does not expire when litigation is completed or abandoned. If law enforcement officials have closed an investigation or decided not to prosecute, however, the governmental interest in maintaining confidentiality of investigation records will be diminished. The Court of Appeals has outlined its interpretation of the exemption for criminal investigatory information as follows: 
information compiled in investigations connected with pending or contemplated prosecutions ordinarily will remain confidential because disclosure likely would interfere with law enforcement proceedings;
information compiled in investigations not connected with pending or contemplated prosecution will remain secret only if the public body establishes that disclosure would:
deprive a person of a right to a fair trial;
constitute an unwarranted invasion of privacy;
disclose the identity of a confidential source or confidential information furnished only by the confidential source;
disclose investigative techniques and procedures; or
endanger the life or physical safety of law enforcement personnel.
Under an exception to the exemption, a "record of an arrest or the report of a crime" is treated differently than other criminal investigatory records and ordinarily is not exempt from disclosure. The statute clarifies this exception by setting out a nonexclusive list of examples of information contained in arrest records and crime reports. Such records must be disclosed unless there is a clear need to delay disclosure in the course of a specific investigation, or unless another statute restricts or prohibits disclosure.
This "arrest records" exception does not apply to juvenile records. Although ORS 192.501(3) does not by its own terms distinguish between juvenile and adult records, the juvenile code authorizes "custody," rather than "arrest," of juveniles for criminal law violations. We therefore believe that under ORS 192.501(3), the record of an "arrest" does not include the record of "custody" of a juvenile. Such "custody" records compiled by law enforcement agencies for criminal law purposes would therefore fall within the ORS 192.501(3) exemption. We note, however, that the juvenile code requires disclosure of information that parallels the arrest record information described in ORS 192.501(3). It also permits disclosure of additional information from juvenile court records.
A public record need not have originated as part of a criminal investigation to come within the exemption. In a public records order, we concluded that the scope of the exemption for criminal investigatory information extends to prevent disclosure of records not originally created, but later gathered, for criminal law enforcement purposes. In reaching our conclusion, we noted that the United States Supreme Court construed the nearly identical provision in the federal Freedom of Information Act exempting "records or information compiled for law enforcement purposes" to extend to such records. Because the state and federal disclosure exemptions are comparable, we believe that Oregon courts would reach the same conclusion.
Also, the exemption is not limited to records in the custody of a law enforcement agency or official. If, as part of a criminal investigation, a law enforcement agency has collected or gathered records from another public body, that public body (or any other public body that is also a "custodian" of the same records) may apply the exemption in reliance on the law enforcement agency's representation that public disclosure of records would interfere with the pending criminal prosecution.
The exemption for criminal investigatory information should be distinguished from the laws governing disclosure of criminal offender information. ORS 181.560 establishes a procedure for obtaining specified criminal offender information from the Department of State Police. ORS 181.534 makes criminal offender information obtained by public bodies for non-criminal justice purposes, e.g., employment, confidential. Public bodies affected by ORS 181.534 are identified in App G.
I.E.4.c.(4) Tests and Examination Material
ORS 192.501(4) conditionally exempts:
Test questions, scoring keys, and other data used to administer a licensing examination, employment, academic or other examination or testing procedure before the examination is given and if the examination is to be used again. Records establishing procedures for and instructing persons administering, grading or evaluating an examination or testing procedure are included in this exemption, to the extent that disclosure would create a risk that the result might be affected.
The obvious purpose of this exemption is to protect the integrity of examinations administered by various public bodies for licensing, employment and other purposes. Information used to administer the test is confidential until the test has been given. Examination information remains confidential if the test will be reused. We have concluded that records of the oral answers to test questions must be released if the answers do not indirectly reveal the questions. Likewise, a completed answer sheet is not exempt if disclosure would not compromise the integrity of the examination. However, we also have concluded that the scoring sheet for a practical examination that lists the items on which a licensing applicant is being evaluated is the equivalent of written test questions and exempt when disclosure would jeopardize the integrity of subsequent examinations.
Although primarily applicable to licensing or academic examinations, this exemption will apply to any "examination" for which test questions, scoring keys or other data will be used again to grade or evaluate applicants. Thus, we concluded that when authorization of tax credits in a competitive funding cycle is based on an evaluation of written questions that elicit information about a project's qualifications, the scoring sheets and evaluation materials are exempt because disclosure would identify precisely what the applicant needed to state to obtain a maximum score.
I.E.4.c.(5) Business Records Required to be Submitted
ORS 192.501(5) conditionally exempts:
Information consisting of production records, sale or purchase records or catch records, or similar business records of a private concern or enterprise, required by law to be submitted to or inspected by a governmental body to allow it to determine fees or assessments payable or to establish production quotas, and the amounts of such fees or assessments payable or paid, to the extent that such information is in a form which would permit identification of the individual concern or enterprise. This exemption does not include records submitted by long term care facilities as defined in ORS 442.015 to the state for purposes of reimbursement of expenses or determining fees for patient care. Nothing in this subsection shall limit the use which can be made of such information for regulatory purposes or its admissibility in any enforcement proceeding.
This exemption applies only to business records required to be submitted to a governmental body for use in setting fees or assessments or for establishing production quotas, and to the amount of the fees or assessments, if this information would permit identification of the business. It is intended to protect information that would allow determination of a particular business's production levels. This exemption does not cover business records that a person or business may submit in connection with an application for a license or permit, even if the information is a required part of the application, unless the amount of the license or permit fee is based on the production levels. The exemption is limited to information furnished to allow the governmental agency "to determine fees or assessments payable or to establish production quotas."
I.E.4.c.(6) Real Estate Appraisal Information
ORS 192.501(6) conditionally exempts:
Information relating to the appraisal of real estate prior to its acquisition.
This exemption permits public bodies to obtain information in confidence concerning the value of real estate that the public body may purchase or condemn. A parallel provision exists under the Public Meetings Law, which exempts from open meetings requirements "deliberations with persons designated by the governing body to negotiate real property transactions." ORS 192.660(2)(e). Even after the real estate is acquired, the exemption may continue to apply to the appraisal if the information and analysis in the record is relevant to later appraisals of similarly situated properties that the public body may acquire.
I.E.4.c.(7) Employee Representation Cards
ORS 192.501(7) conditionally exempts:
The names and signatures of employees who sign authorization cards or petitions for the purpose of requesting representation or decertification elections.
This exemption does not extend to records showing the number of persons who have signed such cards or to checklists of eligible employees who vote in such elections that do not disclose how individual employees voted.
I.E.4.c.(8) Civil Rights Investigation Material
ORS 192.501(8) conditionally exempts:
Investigatory information relating to any complaint filed under ORS 659A.820 or 659A.825, until such time as the complaint is resolved under ORS 659A.835, or a final order is issued under ORS 659A.850.
ORS 659A.820 and 659A.825 relate to complaints filed with the Commission of the Bureau of Labor and Industries alleging unlawful employment practices or other civil rights violations. ORS 659A.835 and 659A.850 relate to investigations and hearing procedures for such complaints.
This provision of the Public Records Law does not exempt the complaint itself or information contained in the complaint. Nor does the exemption extend to names and addresses of employers against whom unlawful employment practices complaints are pending.
I.E.4.c.(9) Unfair Labor Practice Complaints
ORS 192.501(9) conditionally exempts:
Investigatory information relating to any complaint or charge filed under ORS 243.676 and 663.180.
ORS 243.676 relates to processing complaints by public employees or employers of unfair labor practices listed in ORS 243.672(1) and (2), and complaints of refusal to comply with any provision of a final and binding arbitration award, which is an unfair labor practice under ORS 243.752(1). ORS 663.180 relates to unfair labor practice investigations and complaints before the Employment Relations Board. However, the complaint itself would not be exempt from disclosure.
I.E.4.c.(10) Debt Consolidating Agency Investigation Records
ORS 192.501(10) conditionally exempts:
Records, reports and other information received or compiled by the Director of the Department of Consumer and Business Services under ORS 697.732.
ORS 697.732 relates to investigations and enforcement by the Director of the Department of Consumer and Business Services of laws concerning debt consolidating agencies. The language used in this exemption—"records, reports and other information"—is broader than the "information relating to any complaint" language used in the civil rights and unfair labor practice exemptions discussed above. Accordingly, this exemption may include information in a complaint.
I.E.4.c.(11) Archaeological Site Information
ORS 192.501(11) conditionally exempts:
Information concerning the location of archaeological sites or objects as those terms are defined in ORS 358.905, except if the governing body of an Indian tribe requests the information and the need for the information is related to that Indian tribe's cultural or religious activities. This exemption does not include information relating to a site that is all or part of an existing, commonly known and publicized tourist facility or attraction.
ORS 358.905(1) defines the terms "archaeological site" and "archaeological object." The statutes following these definitional provisions concern protection of archaeological sites and objects.
I.E.4.c.(12) Personnel Discipline Actions
ORS 192.501(12) conditionally exempts:
A personnel discipline action, or materials or documents supporting that action.
Only completed disciplinary actions when a sanction is imposed, and materials or documents that support that particular disciplinary action, fall within the scope of this exemption. The exemption does not apply when an employee of a public body resigns during an employer investigation or in lieu of disciplinary action. The policy underlying this narrowly construed exemption is to "protect[ ] the public employee from ridicule for having been disciplined but does not shield the government from public efforts to obtain knowledge about its processes."
Consistent with this policy, there are situations when the public interest in disclosure outweighs the public employee's interest in confidentiality, despite the imposition of a disciplinary sanction. For example, the public interest typically favors disclosure if the conduct potentially constitutes a criminal offense or if the records relate to alleged misuse and theft of public property by public employees. Other factors to consider in weighing the public interest in disclosure against the employee's interest in confidentiality include the employee's position, the basis for the disciplinary action, and the extent to which the information has already been made public.
We concluded that disclosure of a disciplinary action and related materials was required when the employee was a law enforcement officer who provided instruction to persons seeking to become certified as public safety personnel and the incident for which the employee was disciplined was already well publicized and was antithetical to the minimum fitness standards the officer was expected to teach and to model. However, the public interest did not require disclosure of the employee's entire disciplinary history. If violation of the criminal laws is not involved and the conduct of the public officials has not been publicized, the fact that the officials are high-level administrators will not, by itself, require disclosure of the facts supporting their terminations.
In a case involving records pertaining to an investigation and disciplinary action against a police captain who allegedly had engaged in sexual conduct through an escort service that might serve as a front for prostitution, the Court of Appeals held that the public interest required disclosure. The court reasoned that the public has a legitimate interest in confirming the police captain's integrity and ability to enforce the law evenhandedly, and that the information sought bore materially on his integrity and on the risk that its compromise could affect the administration of his duties.
Neither ORS 192.501(12) nor the relevant court decisions specify how the statute applies when a person seeks records in a file in a pending personnel disciplinary matter. Unless the public interest at the time of the request requires disclosure, we believe that the public body's inability to determine the application of the exemption during the pendency of the matter excuses delaying response while the public body diligently pursues the underlying issue. In determining whether the public interest at the time of the request requires disclosure, one relevant factor is the extent to which the disciplinary proceedings might be adversely affected by public disclosure while the matter is pending. Requiring disclosure of disciplinary records when requested while disciplinary actions are pending, regardless of the public interest, could effectively eviscerate the exemption of ORS 192.501(12) by compelling the disclosure of records that may turn out to be exempt.
We recommend that a public body consult with its legal counsel for advice in responding to a request for records potentially exempt under the personnel discipline exemption.
I.E.4.c.(13) Information about Threatened or Endangered Species
ORS 192.501(13) conditionally exempts:
Information developed pursuant to ORS 496.004, 496.172 and 498.026 or ORS 496.192 and 564.100, regarding the habitat, location or population of any threatened species or endangered species.
ORS 496.004, 496.172, 498.026, 496.192 and 564.100 relate to the definition, identification and management of threatened and endangered animal and plant species. These activities generally fall within the jurisdiction of the State Fish and Wildlife Commission for animals, and the State Department of Agriculture for plants.
In creating this exemption, the legislature likely intended to prevent disclosure of information regarding threatened or endangered species to persons who might use the information in a manner adverse to the survival of the species. While the motive of the requester and the circumstances surrounding the request are irrelevant in determining whether the information sought falls within the exemption, the motive of the requester may be relevant to whether the public interest requires disclosure. A requester's benevolent intention and promise not to disclose the records to anyone else, however, do not necessarily mean that the public body must disclose the record, because the body may have little basis to evaluate the requester's intentions and no means to enforce the requester's promise.
I.E.4.c.(14) Faculty Research
ORS 192.501(14) conditionally exempts:
Writings prepared by or under the direction of faculty of public educational institutions, in connection with research, until publicly released, copyrighted or patented.
"This exemption is designed primarily to protect public educational institutions from 'piracy'" of research ideas and data collected by faculty members. It also authorizes faculty to withhold data to assure its accuracy and to avoid the potential detriment to the public interest of releasing misleading or inaccurate data prior to final public release. Even if preliminary results have been published, the exemption will continue to apply to the underlying data if further research and publication will be undertaken using the same data.
I.E.4.c.(15) Computer Programs for the Use of Public Bodies
ORS 192.501(15) conditionally exempts:
Computer programs developed or purchased by or for any public body for its own use. As used in this subsection, "computer program" means a series of instructions or statements which permit the functioning of a computer system in a manner designed to provide storage, retrieval and manipulation of data from such computer system, and any associated documentation and source material that explain how to operate the computer program. "Computer program" does not include:
(a) The original data, including but not limited to numbers, text, voice, graphics and images;
(b) Analyses, compilations and other manipulated forms of the original data produced by use of the program; or
(c) The mathematical and statistical formulas which would be used if the manipulated forms of the original data were to be produced manually.
The legislature added this provision to prevent persons from obtaining from public bodies computer programs that they otherwise would have to purchase or develop themselves. We have concluded that the exemption includes information that would permit computer access. The exclusions from the definition of computer program specified in subsections (a)–(c) are to ensure public access to information that is stored on, produced or used by a computer during a public body's normal use that would be public records subject to disclosure if stored, produced or used in hard copy.
I.E.4.c.(16) Agricultural Producer Indebtedness Mediation Data
ORS 192.501(16) conditionally exempts:
Data and information provided by participants to mediation under ORS 36.256.
ORS 36.256 authorizes mediation services for agricultural producers in danger of foreclosure on agricultural property and for their creditors. All "memoranda, work products and other materials contained in the case files of a mediator or mediation service" under this program are also confidential, ORS 36.262, and would be exempt from disclosure under ORS 192.502(9) discussed below.
I.E.4.c.(17) Unsafe Workplace Investigation Materials
ORS 192.501(17) conditionally exempts:
Investigatory information relating to any complaint or charge filed under ORS chapter 654, until a final administrative determination is made or, if a citation is issued, until an employer receives notice of any citation.
ORS chapter 654 governs safety and health in places of employment. A "complaint" or "charge" includes any report or notice to the Oregon Occupational Safety and Health Division from any person describing or alleging a possible violation of the Oregon Safe Employment Act. This exemption does not cover the complaint itself. However, ORS 654.062(4) provides for confidentiality of the identity of an employee making a complaint of employer safety or health violations.
I.E.4.c.(18) Public Safety Plans
ORS 192.501(18) conditionally exempts:
Specific operational plans in connection with an anticipated threat to individual or public safety for deployment and use of personnel and equipment, prepared or used by a public body, if public disclosure of the plans would endanger an individual's life or physical safety or jeopardize a law enforcement activity.
This exemption applies to operational plans of public bodies, such as a law enforcement agency's tactical plans to carry out "sting" operations, to protect individuals and groups during high-profile court cases, demonstrations or visits by dignitaries, or to maintain order after natural disasters. The exemption permits consideration of the endangerment of the life or physical safety of any individual, as well as the jeopardizing of law enforcement activities, caused by disclosure of security plans.
I.E.4.c.(19) Telecommunications Utility Audits
ORS 192.501(19) conditionally exempts:
(a) Audits or audit reports required of a telecommunications carrier. As used in this paragraph, "audit or audit report" means any external or internal audit or audit report pertaining to a telecommunications carrier, as defined in ORS 133.721, or pertaining to a corporation having an affiliated interest, as defined in ORS 759.390, with a telecommunications carrier that is intended to make the operations of the entity more efficient, accurate or compliant with applicable rules, procedures or standards, that may include self-criticism and that has been filed by the telecommunications carrier or affiliate under compulsion of state law. "Audit or audit report" does not mean an audit of a cost study that would be discoverable in a contested case proceeding and that is not subject to a protective order of; and
(b) Financial statements. As used in this paragraph, "financial statement" means a financial statement of a nonregulated corporation having an affiliated interest, as defined in ORS 759.390, with a telecommunications carrier, as defined in ORS 133.721.
This provision was proposed by telecommunications utilities with the concurrence of the Public Utility Commission (PUC) to protect the affiliates' financial statements and audits that become public records when the telecommunications carrier provides them to the PUC. Release of the information may also provide a competitor of an affiliate with an unfair business advantage if this information is a trade secret.
I.E.4.c.(20) Residence Address of Elector
ORS 192.501(20) conditionally exempts:
The residence address of an elector if authorized under ORS 247.965 and subject to ORS 247.967.
ORS 247.965 requires the county clerk to keep the elector's residence address exempt from disclosure if requested by an elector who demonstrates to the satisfaction of the county clerk that the elector's personal safety or that of any family member residing with the elector is in danger if the address remains available for public inspection. See discussion above of ORS 192.445, requiring a public body to keep an individual's home address, personal telephone number, or electronic mail address exempt from disclosure on similar grounds. ORS 247.967 allows disclosure of the exempt address in certain circumstances.
The Secretary of State is required to adopt rules defining when "the personal safety" of the elector or a family member is in danger. ORS 247.969. See OAR 165-005-0130.
I.E.4.c.(21) Housing Authority and Urban Renewal Agency Records
ORS 192.501(21) conditionally exempts:
The following records, communications and information submitted to a housing authority as defined in ORS 456.005, or to an urban renewal agency as defined in ORS 457.010, by applicants for and recipients of loans, grants and tax credits:
(a) Personal and corporate financial statements and information, including tax returns;
(b) Credit reports;
(c) Project appraisals;
(d) Market studies and analyses;
(e) Articles of incorporation, partnership agreements and operating agreements;
(f) Commitment letters;
(g) Project pro forma statements;
(h) Project cost certifications and cost data;
(j) Project tenant correspondence requested to be confidential;
(k) Tenant files relating to certification; and
(L) Housing assistance payment requests.
This exemption applies to certain records submitted to local housing authorities and urban renewal agencies by individuals or businesses applying for or receiving certain funding related to affordable, government-subsidized housing or urban renewal projects. It was proposed to encourage participation by developers, contractors, financial institutions and others in publicly-financed low income housing and urban renewal transactions. This provision is somewhat similar to the exemption in ORS 192.502(23) for records obtained by the Oregon Housing and Community Services Department. Unlike ORS 192.502(23), however, this exemption is conditional, requiring consideration of the public interest in disclosure.
I.E.4.c.(22) Interference with Property or Services
ORS 192.501(22) conditionally exempts:
Records or information that, if disclosed, would allow a person to:
(a) Gain unauthorized access to buildings or other property;
(b) Identify those areas of structural or operational vulnerability that would permit unlawful disruption to, or interference with, services; or
(c) Disrupt, interfere with or gain unauthorized access to public funds or to information processing, communication or telecommunication systems, including the information contained in the systems, that are used or operated by a public body.
In part, this provision is intended to protect the delivery of the state's public services. It exempts from disclosure information that would allow a person to gain unauthorized access to buildings, public funds or information processing systems, or to identify areas of vulnerability that would permit unlawful disruption to or interference with public services or a public body's information processing systems. A public body also may use the exemption to protect the security of property and services generally; its application is not limited to records pertaining to property and services owned, used or provided by a public body.
I.E.4.c.(23) Security Measures
ORS 192.501(23) conditionally exempts from disclosure:
Records or information that would reveal or otherwise identify security measures, or weaknesses or potential weaknesses in security measures, taken or recommended to be taken to protect:
(a) An individual;
(b) Buildings or other property;
(c) Information processing, communication or tele-communication systems, including the information contained in the systems; or
(d) Those operations of the Oregon State Lottery the security of which are subject to study and evaluation under ORS 461.180(6).
This provision is also intended, in part, to protect the delivery of the state's public services by exempting from disclosure information that would reveal the security measures taken or recommended to be taken to protect public employees, buildings and information processing systems. It exempts not only actual or recommended security measures but also weaknesses or potential weaknesses in those measures. The exemption also applies to records concerning individuals, property and systems beyond those connected to a public body. Finally, the measure specifically exempts from disclosure information that would reveal security measures of the Oregon State Lottery. We have applied this exemption in upholding the denial of a request for video surveillance footage taken at the Marion County Courthouse.
I.E.4.c.(24) OHSU and OUS Donation Records
ORS 192.501(24) conditionally exempts:
Personal information held by or under the direction of officials of the Oregon Health and Science University or the Oregon University System about a person who has or who is interested in donating money or property to the university, the system or a state institution of higher education, if the information is related to the family of the person, personal assets of the person or is incidental information not related to the donation.
I.E.4.c.(25) OUS Donation Records
ORS 192.501(25) conditionally exempts:
The home address, professional address and telephone number of a person who has or who is interested in donating money or property to the Oregon University System.
Unlike the exemption in ORS 192.501(24), records need not be held by or under the direction of OUS officials to qualify for this exemption.
I.E.4.c.(26) Commodity Commission Filers
ORS 192.501(26) conditionally exempts:
Records of the name and address of a person who files a report with or pays an assessment to a commodity commission established under ORS 576.051 to 576.455, the Oregon Beef Council created under ORS 577.210 or the Oregon Wheat Commission created under ORS 578.030.
The laws concerning reporting to commodity commissions include ORS 576.335 and 576.345. The laws concerning payment of assessments include ORS 576.325.
I.E.4.c.(27) Financial Transfer Records
ORS 192.501(27) conditionally exempts:
Information provided to, obtained by or used by a public body to authorize, originate, receive or authenticate a transfer of funds, including but not limited to a credit card number, payment card expiration date, password, financial institution account number and financial institution routing number.
This exemption is intended to protect against unauthorized access to, and fraudulent use of, information that a public body possesses in relation to fund transfers. A public body may transfer funds to or receive a transfer of funds from members of the public as well as other public entities. To execute such transfers, the public body may have records containing information that could allow a person to access funds maintained in a private or public account. This provision protects that information from disclosure.
I.E.4.c.(28) Social Security Numbers in Particular Court Records
ORS 192.501(28) conditionally exempts:
Social Security numbers as provided in ORS 107.840.
This exemption applies to Social Security numbers of parties to judicial proceedings for marital annulment, dissolution or separation under ORS 107.085 or 107.485.
I.E.4.c.(29) Student Electronic Mail Addresses
ORS 192.501(29) conditionally exempts:
The electronic mail address of a student who attends a state institution of higher education listed in ORS 352.002 or Oregon Health and Science University.
The institutions covered by this exemption are the University of Oregon, Oregon State University, Portland State University, Oregon Institute of Technology, Western Oregon University, Southern Oregon University, Eastern Oregon University, and Oregon Health and Science University.
I.E.4.c.(30) OHSU Medical Researcher Records
ORS 192.501(30) conditionally exempts:
The name, home address, professional address or location of a person that is engaged in, or that provides goods or services for, medical research at Oregon Health and Science University that is conducted using animals other than rodents. This subsection does not apply to Oregon Health and Science University press releases, websites or other publications circulated to the general public.
This exemption was enacted with a sunset clause, but it has been repeatedly extended by the legislature. It is currently set to expire on January 1, 2012.
I.E.4.c.(31) Personal Information of Public Safety Officers Appearing in Certain Records
ORS 192.501(31) conditionally exempts:
If requested by a public safety officer as defined in ORS 181.610:
(a) The home address and home telephone number of the public safety officer contained in the voter registration records for the public safety officer.
(b) The home address and home telephone number of the public safety officer contained in records of the Department of Public Safety Standards and Training.
(c) The name of the public safety officer contained in county real property assessment or taxation records. This exemption:
(A) Applies only to the name of the public safety officer and any other owner of the property in connection with a specific property identified by the owner in a request for exemption from disclosure;
(B) Applies only to records that may be immediately available to the public upon request in person, by telephone or using the Internet;
(C) Applies until the public safety officer requests a termination of the exemption;
(D) Does not apply to disclosure of records among public bodies as defined in ORS 174.109 for governmental purposes; and
(E) May not result in liability for the county if the name of the public safety officer is disclosed after a request for exemption is made under this subsection.
ORS 181.610(16) defines "public safety officer" to include corrections officers, youth correction officers, emergency medical dispatchers, parole and probation officers, police officers, certified reserve officers, telecommunicators and fire service professionals. In contrast with ORS 192.445(3), a public safety officer's request for non-disclosure need not be renewed.
I.E.4.c.(32) Personal Information of Certain Government Attorneys
ORS 192.501(32) conditionally exempts specified personal information relating to certain government attorneys from disclosure under most circumstances. The attorney must request exemption. The exemption does not apply to requests that are made "by a financial institution, as defined in ORS 706.008, consumer finance company licensed under ORS chapter 725, mortgage banker or mortgage broker licensed under ORS chapter 59, or title company for business purposes." The exemption applies to:
[R]ecords described in paragraph (a) of this subsection, if the exemption from disclosure of the records is sought by an individual described in paragraph (b) of this subsection using the procedure described in paragraph (c) of this subsection:
(a) The home address, home or cellular telephone number or personal electronic mail address contained in the records of any public body that has received the request that is set forth in:
(A) A warranty deed, deed of trust, mortgage, lien, deed of reconveyance, release, satisfaction, substitution of trustee, easement, dog license, marriage license, or military discharge record that is in the possession of the county clerk; or
(B) Any public record of a public body other than a county clerk.
(b) The individual claiming the exemption from disclosure must be a district attorney, a deputy district attorney, the Attorney General or an assistant attorney general, the United States Attorney for the District of Oregon or an assistant United States attorney for the district of Oregon, a city attorney who engages in the prosecution of criminal matters or a deputy city attorney who engages in the prosecution of criminal matters.
(c) The individual claiming the exemption from disclosure must do so by filing the claim in writing with the public body for which the exemption from disclosure is being claimed on a form prescribed by the public body. Unless the claim is filed with the county clerk, the claim form shall list the public records in the possession of the public body to which the exemption applies. The exemption applies until the individual claiming the exemption requests termination of the exemption or ceases to qualify for the exemption.
I.E.4.c.(33) Land Management Plans
ORS 192.501(33) conditionally exempts:
Land management plans required for voluntary stewardship agreements entered into under ORS 541.423.
The exemption applies to voluntary stewardship agreements entered into between a landowner or representative of the landowner and the State Department of Agriculture or the State Board of Forestry, by which "the landowner will self-regulate to meet and exceed applicable regulatory requirements and achieve conservation, restoration and improvement of fish and wildlife habitat or water quality." ORS 541.423(1). The land management plan includes a comprehensive description and inventory of the subject property, its features and uses, and a prescription for the protection of resources.
I.E.4.c.(34) SAIF Corporation Business Records
ORS 192.501(34) conditionally exempts:
Sensitive business records or financial or commercial information of the State Accident Insurance Fund Corporation that is not customarily provided to business competitors. This exemption does not:
(a) Apply to the formulas for determining dividends to be paid to employers insured by the State Accident Insurance Fund Corporation;
(b) Apply to contracts for advertising, public relations or lobbying services or to documents related to the formation of such contracts;
(c) Apply to group insurance contracts or to documents relating to the formation of such contracts, except that employer account records shall remain exempt from disclosure as provided in ORS 192.502(35); or
(d) Provide the basis for opposing the discovery of documents in litigation pursuant to the applicable rules of civil discovery.
I.E.4.c.(35) Public Safety Officer Investigations
ORS 192.501(35) conditionally exempts:
Records of the Department of Public Safety Standards and Training related to investigations conducted under ORS 181.662 or 181.878.
ORS 181.662 refers to denying, suspending, or revoking certification for individuals and programs by the Department of Public Safety Standards and Training. ORS 181.878 relates to licensure of executive managers and supervisory managers of private security services.
I.E.4.c.(36) Medical Examiner Records
ORS 192.501(36) conditionally exempts:
A medical examiner's report, autopsy report or laboratory test report ordered by a medical examiner under ORS 146.117.
In 2008, the Court of Appeals concluded that medical examiner's reports were not exempt from disclosure under ORS 192.502(9). The Legislative Assembly responded in 2009 by adopting this exemption.
I.E.4.d. The Exemptions of ORS 192.502
ORS 192.502 provides:
The following public records are exempt from disclosure under ORS 192.410 to 192.505[.]
Note that ORS 192.502 does not contain the condition, "unless the public interest requires disclosure in the particular instance," which applies to all exemptions in ORS 192.501. However, the exemptions in paragraphs (1)–(6) of ORS 192.502 contain language of condition making them subject to a weighing of the public interest in disclosure.
I.E.4.d.(1) Internal Advisory Communications
ORS 192.502(1) exempts:
Communications within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to any final agency determination of policy or action. This exemption shall not apply unless the public body shows that in the particular instance the public interest in encouraging frank communication between officials and employees of public bodies clearly outweighs the public interest in disclosure.
Due to its many conditions, this exemption applies narrowly. It is designed to encourage frankness and candor in communications within or between governmental agencies. "Frank" communication is that which is "marked by free unrestrained willing expression of * * * opinions, or feelings without reticence, inhibition, or concealment." Webster's Third New International Dictionary (2002) at 903.
Under this exemption, a public record is exempt from disclosure only if it meets all of the following criteria:
it is a frank communication within a public body or between public bodies;
it is of an advisory nature preliminary to any final agency action;
it covers other than purely factual materials; and
in the particular instance, the public interest in encouraging frank communication clearly outweighs the public interest in disclosure.
The central thrust of this exemption is to protect the confidentiality of frank and uninhibited advice and observations a public employee gives to a superior or associate. The test of whether there are grounds for asserting the exemption is whether disclosure would inhibit the employee so as to interfere with the free flow of information and ideas that the public body needs for its efficient operation, as distinguished from mere embarrassment of the employee or public body.
If the communication contains factual material together with the advisory recommendations, then the public body is under a duty to segregate the factual material and make it available for inspection. ORS 192.505. It may be appropriate to withhold or redact a communication that is not advisory in itself, if disclosing that communication would effectively disclose the substance of a communication that is exempt under ORS 192.502(1).
The burden is on the public body to justify application of this exemption. The exemption does not apply unless the public body can show that in the particular instance the public interest in encouraging frank communications clearly outweighs the public interest in disclosure. For the exemption to apply, the public body need not show the extent to which, in the particular instance, frank communication helped to actually advance the work of the public body.
I.E.4.d.(1)(a) Types of Records
Public bodies often erroneously take the view that preliminary reports or recommendations, containing nothing that justifies nondisclosure, will be withheld until after they are reviewed or acted upon by the recipient. This is improper. The need for further checking of data is also not a valid ground for nondisclosure. Such a document is a public record. Therefore, a requester is entitled to see the document and to obtain a copy upon request, unless another exemption applies. If, for example, the report is to a board, it may be annoying to the board to read a newspaper story about it before its members receive their copies, but this does not justify any delay in disclosure.
Even before adoption of the Public Records Law, the Oregon Supreme Court held that data collected by a state agency in the course of carrying out a study were subject to inspection before the study was completed. The fact that a record is "preliminary" is not itself grounds for nondisclosure.
We also have concluded that preliminary or incomplete working drafts are public records subject to disclosure and that they should be judged by the same standards as a completed "advisory communication." An employee or official may prepare a half dozen drafts before submitting a final version, and often may submit preliminary "discussion drafts." We know from experience that disclosure of an incomplete or discussion draft, in any case in which there is significant media or public curiosity about the result, may have serious adverse effects on the ability of the person to complete the work. If disclosure would lead to interference with the work of the public body, this is a factor to be weighed into the "public interest" equation.
I.E.4.d.(1)(b) Balancing Disclosure and Nondisclosure
Three Oregon Court of Appeals opinions relate to the internal advisory communications exemption and demonstrate the weight given to the presumption in favor of disclosure. The court first applied the public interest balancing test in a case in which a hospital subject to the Public Records Law brought a declaratory judgment action to determine whether a certain record was exempt from disclosure. The record in dispute was a portion of a consultant's study of operating room procedures and staffing levels, based in part on interviews with hospital staff. The hospital relied on the internal advisory communications exemption, among others.
The court found that the report was a communication within a public body of an advisory nature preliminary to a final agency action, and that it contained both factual and nonfactual information. In applying the public interest balancing test, the court found no evidence that the nonfactual information resulted from "frank communications" within the hospital. Because the only public interest in nondisclosure considered was the interest in candor within the hospital and candor would not be chilled when information did not result from frank communications, the public interest test weighed in favor of disclosure. The court also noted that even had the nonfactual material resulted from frank communications, the "presumption favoring disclosure outweighs any evidence to the contrary."
In the second case, the records in dispute were individual questionnaire responses to a survey sent by the Department of Fish and Wildlife to biologists, to solicit their ratings of the effectiveness of the Forest Practices Act. The case dealt solely with balancing the public interests, because it was undisputed that the responses were communications within a public body, at least in part advisory, and contained other than purely factual material.
After examining the responses at issue, the court ordered disclosure based on its assessment of the public interest, stating:
Any "chilling effect" that disclosure may have on future communications within the agency, because of potential embarrassment to the agency or its employees, is not sufficient, in and of itself, to overcome the presumption favoring disclosure. See, e.g., Turner v. Reed, [22 Or App 177]. To hold otherwise would effectively exempt from disclosure all interagency communications that are advisory in nature and cover other than purely factual matters.
The court also held that summaries of internal advisory communications, rather than the records themselves, cannot satisfy the public interest in disclosure.
Most recently, the court held that Portland Police Bureau records concerning the investigation and discipline of a police officer who killed a civilian during a traffic stop were not exempt from disclosure. The court focused on the balancing of the public's interests and primarily based its holding on the conclusion that none of the requested records contained material that, if disclosed, would have a "seriously chilling effect" on future investigations. For example, in describing the contents of the requested records, the court stated that disclosure would not reveal anonymous whistle blowers, personal criticism, or supervisory personnel judgments that were other than "clinical and detached." The court also stressed the public interest in disclosure, given the "highly inflammatory and widely reported" nature of the underlying incident. The court found that the value of transparency to public confidence that a "thorough and unbiased" investigation had been undertaken was not "outweighed by the speculation that transparency will quell candor at some future date."
These cases indicate that to justify an exemption under ORS 192.502(1), there must be a strong showing of a "chilling" effect based on something more than potential embarrassment to the public body or staff. For example, we concluded in a public records order regarding a pending disciplinary proceeding against an attorney, that the public interest in allowing the Oregon State Bar to exchange frank comments and recommendations concerning proposed disciplinary action would be seriously undermined if the accused attorney could obtain access to the candid analysis of the charges, strategies and recommendations on the disposition of the charges during the pendency of the disciplinary proceedings.
With regard to disciplinary investigations, we concluded that the candid evaluations and recommendations of supervisors and investigators are the types of communications protected by this exemption. The public interest in disclosure may often be outweighed by the public interest in encouraging a frank and uninhibited assessment of the allegations and evidence so that the public body may make an appropriate decision about disciplinary action. However, in relation to disciplinary investigations and other factual situations, it is important to note that, in most instances, a public body cannot make a public interest determination based solely on the nature of the requested records. Instead, the public body also must consider the content of the particular records.
In another employment-related decision, we concluded that the public interest in frank and candid communications between prior public employers and a prospective public employer about a former employee's work outweighed the public interest in ensuring that the prospective public employer made an unbiased, fair and informed hiring decision when it decided not to offer the former employee employment. Because the internal advisory exemption does not apply to purely factual material, we determined that the public interest in maintaining the confidentiality of the references extended only to the forthright, subjective evaluations provided by the former public employers, and did not extend to the purely factual information found in the record at issue. Subsequently, we concluded with respect to another request for employment references that, in the particular instance, the public interest in ensuring frank communication could be protected by redacting the source-identifying information, but disclosing the substance of the references.
In the context of rulemaking, we concluded that the exemption applied to speculation by agency employees about the implications or impact of proposed rules. With respect to a proposed hearing order, however, we concluded that the exemption did not apply to the proposed opinion and order in a Department of Revenue appeal. The proposed order in this situation included a tentative recommendation by the hearings officer on a suggested Department of Revenue policy change. As such, it satisfied all of the elements of the exemption, except one. The public interest in nondisclosure in this case was insubstantial because the Department of Revenue already had revealed records that discussed the proposed order in some detail.
The public's interest in encouraging frank inter-agency communication in order to advance the Public Utility Commission's (PUC) ability to accomplish its regulatory mission clearly outweighed the public interest in disclosure of records prepared by the PUC staff for an administrative proceeding. In this proceeding, PUC staff was challenging a utility's proposed undertaking. This challenge would have been significantly undermined if the utility could obtain wholesale access to the PUC staff's candid comments, evaluations and strategies while the contested case proceeding was pending. Therefore, we denied the petition except as to "purely factual material" contained in the records sought.
We concluded that a record describing the advantages and disadvantages of various program options for a public body to deal with its budget deficit, including possible budget cuts, was exempt from disclosure. Because managers would be reluctant to engage in frank discussions of potentially unpopular decisions, the public's interest in allowing a frank exchange concerning budget options and potential cuts would be substantially undermined if the record were disclosed before the difficult program decisions were made.
I.E.4.d.(2) Personal Privacy Exemption
ORS 192.502(2) exempts:
Information of a personal nature such as but not limited to that kept in a personal, medical or similar file, if public disclosure would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in the particular instance. The party seeking disclosure shall have the burden of showing that public disclosure would not constitute an unreasonable invasion of privacy.
The purpose of this exemption is to protect the privacy of individuals from unreasonable invasion. It reflects a policy that persons working for or dealing with the government should not be subject to indiscriminate disclosure of personal information merely because of that association. We emphasize that the exemption protects only the privacy of the person about whom the record contains information. Unlike the internal advisory communications exemption, ORS 192.502(1), the personal privacy exemption is not intended for the benefit of the public body. To illustrate, even though files containing personal information generally are exempt from public inspection, there is no ground under this section of the law to deny an individual access to his or her own file. However, portions of the file may be exempt from the individual's inspection under other exemptions.
ORS 192.502(2) does not exempt all information in a personal or medical file. Information in such a file that is not personal, or the disclosure of which would not be an unreasonable invasion of privacy is not exempt. Conversely, information in other types of files that is personal, and the disclosure of which would be an unreasonable invasion of privacy, is exempt.
The Oregon Supreme Court has indicated that an individual may be permitted to explain to a public body why disclosure of information about that individual should be withheld from disclosure under this exemption. Public bodies may want to solicit input from affected individuals before disclosing arguably private information. Ultimately, however, the decision to withhold any information must be made by the public body, which bears the burden of sustaining such an action.
By statute, the person requesting records bears the burden of showing that a disclosure would not constitute an unreasonable invasion of privacy. However, a public body asserting the exemption must initially make a threshold showing that the disclosure would constitute an unreasonable invasion of privacy.
I.E.4.d.(2)(a) Personal Information
The exemption applies to "personal" information. "Personal" information includes all information "relating to a particular person," such as a person's home address, age, weight, and residential telephone number. The fact that information is contained in a public record "would not prevent it from being of a personal nature if it otherwise would fit that classification."
I.E.4.d.(2)(b) Unreasonable Invasion of Privacy
Not all personal information is exempt from disclosure; only personal information that "would constitute an unreasonable invasion of privacy" if publicly disclosed comes under this exemption.
The exemption is not limited only to those cases in which disclosure would give rise to a tort action for invasion of privacy. The Oregon Supreme Court concluded that the legislature intended to use the words "unreasonable invasion of privacy" in "their common meaning as a generic description." Whether disclosure will constitute an unreasonable invasion of privacy involves an objective test, in which the court will examine the facts presented in each instance. The mere fact that "the information would not be shared with strangers is not enough to avoid disclosure." An invasion of privacy will be unreasonable where "an ordinary reasonable person would deem [it] highly offensive."
The Supreme Court concluded that the "unreasonable invasion of privacy" test was satisfied when release of a citizen's home address to the requester would allow the requester "to harry [the citizen] incessantly to the extent that an ordinary reasonable person would deem [it] highly offensive." Under the court's analysis, it appears that the exemption is not limited only to circumstances in which the public body's disclosure itself would unreasonably invade a person's privacy. Writing in concurrence with the majority opinion, Justice Gillette explained the implications of the majority decision:
[A] disclosure "constitutes" an unreasonable invasion of privacy if the agency's act of releasing the information, or the acts of those to whom the information is released, are reasonably anticipated by the agency to lead to such an invasion of privacy. Thus, in this case, the agency could reasonably anticipate that, should it release the sought-after information to Jordan, that person would immediately and unreasonably invade the privacy of Citizen.
The Court of Appeals has stated that disclosure of personal information regarding a public official's ostensibly private conduct does not constitute an unreasonable invasion of privacy where the conduct involved directly bears on the possible compromise of a public official's integrity in the context of his public employment.
I.E.4.d.(2)(c) Balancing Disclosure and Nondisclosure
A public body must determine that disclosure of personal information would be an unreasonable invasion of privacy before this exemption will apply. Even if disclosure would constitute an unreasonable invasion of privacy, however, the public body also must determine whether the public interest by clear and convincing evidence requires disclosure in the particular instance. Only when there is no overriding public interest in disclosure may the public body lawfully withhold the information.
Moreover, the information is not exempt absent an individualized justification for exemption. Thus, ORS 192.502(2) requires a public body to consider the merits of each request for nondisclosure on a case-by-case basis; a blanket policy of nondisclosure of public records does not comply with the Public Records Law. For example, the Oregon Supreme Court concluded that a public body violated the Public Records Law when it had a blanket policy of refusing to disclose the names and addresses of replacement teachers during a strike.
I.E.4.d.(2)(d) Application of Exemption
We have issued opinions and public records orders applying ORS 192.502(2) to names, personal financial information, personal medical information and other records. We believe these decisions illustrate the proper application of the personal privacy exemption.
The names, home addresses and telephone numbers of licensees and other persons contained in a public body's records are "personal" information. Whether a public body may withhold that information depends, in part, upon whether disclosure would constitute an invasion of privacy that an ordinary reasonable person would deem highly offensive.
Ordinarily, disclosure of a person's name itself will not constitute an unreasonable invasion of privacy. Disclosure by a public body of an individual's telephone number or email address generally would not be highly offensive so as to come within this exemption. We concluded that a public body could not refuse to disclose the telephone numbers of hunting and fishing license holders because the decision not to disclose was based on a blanket policy of nondisclosure. On another occasion we concluded that the trial court administrator's blanket denial of access to juror information forms was not justified under the personal privacy exemption.
A person's address is also information of a personal nature, but it is generally not exempt because reasonable persons routinely provide their addresses for a variety of purposes—they are imprinted on checks, placed on outgoing letters and found in telephone directories, land records and voter registration records. While a blanket policy of nondisclosure would not comply with the Public Records Law, situations may exist in which disclosure of addresses would be highly offensive and not in the public interest. For example, prior to the adoption of ORS 192.502(3), which exempts public employees' addresses, we concluded that the addresses of employees of a particular state agency were exempt from disclosure because the public body knew of facts from which it reasonably anticipated that disclosure of the information could lead to harassment or physical harm of the employees.
ORS 192.502(2) expressly exempts from disclosure personal information in a medical file, if the other statutory criteria are met. We upheld an agency's denial of a request for all information in a particular person's medical files. Personal medical information plainly is "information of a personal nature," public disclosure of which ordinarily constitutes an unreasonable invasion of privacy. In the particular instance, the public interest did not require disclosure.
Information concerning the manner in which any public officer or employee carries out the duties of the office or employment generally will not come within this exemption. For example, the Court of Appeals has held that records containing allegations of misuse and theft of public property by public employees, a matter of significant public interest, were not exempt from disclosure because the information was not personal in nature and disclosure would not constitute an unreasonable invasion of privacy.
In a case that primarily addressed the criminal investigatory material exemption, the Court of Appeals stated:
As for invasion of privacy, the report [of investigation of a city police department] deals primarily, if not exclusively, with the conduct of public servants * * * in the performance of their public duties. As the line of cases originating with New York Times Co. v. Sullivan, 376 US 254 * * * (1964) makes clear, any privacy rights that public officials have as to the performance of their public duties must generally be subordinated to the right of the citizens to monitor what elected and appointed officials are doing on the job.
Even though information concerning how a public officer or employee carries out his or her duties would not be confidential under the personal privacy exemption, if that information forms the basis for disciplinary action against the employee, it may be exempt from disclosure under the ORS 192.501(12) personnel discipline exemption discussed above.
In a public records order concerning the release of Children's Services Division supervisors' performance evaluations, we determined that the public has a substantial interest in knowing how these supervisors are performing their important public duties. We also considered the public employee's role in the agency's hierarchy, concluding that there may be greater public interest in the disclosure of the evaluation of a top manager of a public body than in the disclosure of the evaluation of a line worker. Although the public interest in a candid evaluation process would be furthered by nondisclosure, we concluded that the overall balance favored disclosure.
We also ordered disclosure of a job-related performance evaluation of the manager of a local office of the Employment Department. Again, we compared the competing public interests and concluded that the public interest in knowing how a branch manager is performing his management functions outweighed the public interest in candid evaluations. We exempted from disclosure those items that did not describe the manager's performance, but related to his personal aspirational goals.
We applied the same analysis to public employee salary information. With respect to an employee's gross pay, we concluded that the employee did not have a reasonable expectation that such information would not be subject to public scrutiny because of the public's interest in knowing the amount that a public employee is compensated for his or her services. However, the amount of voluntary payroll deductions from an employee's paycheck are exempt from disclosure under this exemption. The public does not have a legitimate interest in knowing how a public employee spends that paycheck.
In response to a public records petition requesting documentation of the date, hours and type of leave (i.e., sick leave, vacation, leave without pay, etc.) for correctional facility security staff, we noted that disclosure of the requested leave information would not constitute an "unreasonable" invasion of the individual's privacy and, therefore, the information would not be exempt from disclosure under ORS 192.502(2). Generally, an individual's coworkers are well aware of the general reason that an employee is off from work and the length of time that he or she is gone. This is not the type of information that an ordinary reasonable person would deem highly offensive to disclose.
Questions frequently arise concerning a public body's duty to disclose information in applications for employment or licensing. Such records may include several different types of potentially exempt information, such as personal medical information, exempt under ORS 192.502(2); personal financial information; the address or telephone number of an employee, exempt under ORS 192.502(3); information submitted in confidence, exempt under ORS 192.502(4); and other personal information. In responding to a request for such records, a public body sometimes must review documents line by line in order to segregate the exempt from nonexempt information pursuant to ORS 192.505. See the discussion below concerning Segregation of Exempt and Nonexempt Material. We encourage public bodies that receive such a request to contact their assigned counsel for advice.
I.E.4.d.(3) Public Employee Addresses, Social Security Numbers, Birth Dates and Telephone Numbers
ORS 192.502(3) exempts:
Public body employee or volunteer addresses, Social Security numbers, dates of birth and telephone numbers contained in personnel records maintained by the public body that is the employer or the recipient of volunteer services. This exemption:
(a) Does not apply to the addresses, dates of birth and telephone numbers of employees or volunteers who are elected officials, except that a judge or district attorney subject to election may seek to exempt the judge's or district attorney's address or telephone number, or both, under the terms of ORS 192.445;
(b) Does not apply to employees or volunteers to the extent that the party seeking disclosure shows by clear and convincing evidence that the public interest requires disclosure in a particular instance;
(c) Does not apply to a substitute teacher as defined in ORS 342.815 when requested by a professional education association of which the substitute teacher may be a member; and
(d) Does not relieve a public employer of any duty under ORS 243.650 to 243.782.
This provision exempts from disclosure the addresses, Social Security numbers, birth dates and telephone numbers of public employees and volunteers, except for: (1) the addresses, dates of birth and telephone numbers of elected officials, (2) situations where the requester demonstrates by clear and convincing evidence that the public interest requires disclosure in a particular instance, and (3) substitute teachers when the request is made by a professional education association of which the substitute teacher may be a member. The purpose of the substitute teacher provision is to enable the Oregon Substitute Teacher Association to obtain the information needed to notify potential participants about its annual conference. The exemption is not intended to exempt public employers from complying with their duty to provide information under state collective bargaining laws.
The exception in ORS 192.502(3)(a) is exclusive to judges or district attorneys subject to election. However, we believe that any elected official could seek similar exemption under ORS 192.445 (personal safety exemption).
I.E.4.d.(4) Confidential Submissions
ORS 192.502(4) exempts:
Information submitted to a public body in confidence and not otherwise required by law to be submitted, where such information should reasonably be considered confidential, the public body has obliged itself in good faith not to disclose the information, and when the public interest would suffer by the disclosure.
The purpose of this exemption is to encourage voluntary submission of relevant information to public bodies, with some reasonable assurance that the information will be kept confidential.
There are no less than five conditions that must be met for the exemption to apply:
The informant must have submitted the information on the condition that it would be kept confidential.
The informant must not have been required by law to provide the information.
The information itself must be of a nature that reasonably should be kept confidential.
The public body must show that it has obliged itself in good faith not to disclose the information.
Disclosure of the information must cause harm to the public interest.
The first condition is whether the information was submitted in confidence. Many public bodies receive information that reasonably could be considered confidential, without any specific request for confidentiality. Perhaps the circumstances are such that an implied request for confidentiality can be asserted. Nevertheless, it is very difficult to justify nondisclosure under the terms of ORS 192.502(4) in such a case. The public body must be able to present evidence that there was a condition or understanding at the time the information was provided that the information would be held in confidence. Thus, public bodies should specifically discuss with the person submitting the information whether it is being submitted in confidence and, if so, document that in the file. A public body should inquire about the person's intention as to confidentiality before receiving substantive information from the person. Otherwise, it may be difficult for the public body to establish whether the information was submitted in confidence. This exemption clearly does not apply if the public body requests that information be submitted in confidence merely to avoid embarrassment to itself.
We denied access to the responses of a workers' compensation survey questionnaire, because we concluded that the records fell within the exemption for confidential information. We inferred from the facts (i.e., the assurance of confidentiality, use of closed envelopes and the fact that the department kept the information segregated and confidential) that the information was submitted in confidence. By contrast, we granted a petition for the release of all records of an investigation conducted by the Oregon Department of Transportation, including notes of all interviews conducted by the agency. Although the representative of the agency advised the participants in the inquiry that their responses would be kept confidential, the representative concluded that they would have participated even without such an assurance. For that reason, we could not determine that the information had been submitted in confidence.
The second condition is whether the informant is "not otherwise required by law" to provide the information. If the informant is required to submit the information pursuant to a governmental enactment such as a statute or rule, this exemption will not apply. However, an informant whose legal obligation to submit information arises solely under the terms of a contract with a public body is not "required by law" to submit the information, but by the terms of the contract, unless the informant is required by law to sign a contract with those terms.
The third condition is whether the information itself should reasonably be considered confidential. This condition would generally be met if disclosure of the information is restricted by statute or contract or is exempt from disclosure under other exemptions of the Public Records Law. If the information is publicly available, obtainable or observable, it cannot reasonably be considered confidential.
The fourth condition is whether the public body obliged itself in good faith not to disclose the information. This is the other side of the first condition. The public body need not have given a written commitment, so long as there was a clear statement or understanding that the public body would not disclose the information. An explicit statement that the public body will not disclose the information unless required by law is sufficient.
The final condition is whether disclosure of the information would harm the public interest. Even if all the other conditions are met, if the public interest would not suffer by disclosure, the exemption does not apply. This condition requires consideration not only of the impact of the disclosure on the particular informant providing the information but also of the likelihood that disclosure would discourage other informants from providing information in confidence in the future.
Information submitted by manufacturers of video terminal equipment in confidence to the Oregon State Lottery and consisting of bank account numbers, tax returns and other personal information is of the type that would reasonably be considered confidential. The Oregon Court of Appeals found that the public interest would suffer by disclosure of such information, "because it could discourage video lottery terminal distributors from applying for contracts * * * thereby reducing competition for video lottery terminals." Since the lottery obligated itself in good faith not to disclose the information, the records were exempt from disclosure under ORS 192.502(4).
In another case interpreting the ORS 192.502(4) exemption, the Court of Appeals concluded that disclosing employment reference forms regarding a candidate for a teaching position in a school district would not harm the public interest in maintaining the confidentiality of employment references, provided that source-identifying information was deleted from the documents. A school district refused to disclose employment references to the unsuccessful candidate on the basis that the public interest required it to maintain the confidentiality of employment references, and that disclosing the references would "chill" or deter sources from submitting candid employment evaluations in the future. The court found that disclosure of the reference forms after deleting information that revealed or tended to reveal the source's identity would serve the public interest because it "would reduce the potential for basing hiring decisions on secret, unrebuttable allegations or innuendo."
Because the substance of the reference responses at issue did not identify the sources, the court was not faced with a situation where deletion of the source-identifying information was a practical impossibility. We considered that situation when an applicant for employment with a state agency requested a background report containing employment reference information. After reviewing the report, we concluded that the responses of the applicant's former private employers were exempt from disclosure because the identities of the sources could not be adequately protected by deleting the name or other identifying information. Thus, the public interest in obtaining candid and complete employment references required the public body to keep its promise of confidentiality to the sources.
In the case of an advisory committee charged with making recommendations to the Department of Insurance and Finance for reform of the Oregon Workers' Compensation Law, we determined that the public interest would suffer by the disclosure of the committee's minutes and working documents. The final report of the committee had been made public. The committee was composed of representatives of employers and workers who had been assured confidentiality by the department. Because the public interest in encouraging parties with competing interests to work together towards reaching compromise on these important public issues outweighed any public interest in disclosure of the working documents, we concluded that the exemption applied.
If confidentiality has been requested and assured and the information is of a nature that generally should be kept confidential, the good faith or bad faith of the person in submitting the information is relevant to determining the public interest in disclosure of the person's identity. Disclosure of the identity of a person acting in good faith is contrary to the public interest, but the public interest will require disclosure when a person provides false information for vindictive reasons.
If a communication submitted and accepted in confidence contains some information that reasonably should be considered confidential and the public interest would suffer by disclosure, and the communication also contains information for which there is no reasonable ground for confidentiality, then that other information is not exempt and must be separated and disclosed. ORS 192.505. Sometimes the name of the informant, and information from which the informant's identity can be determined, is the only information for which nondisclosure can be justified. We denied a petition for the release of "actual quotations made by * * * employees when interviewed" for a study conducted by the Department of Insurance and Finance. Although only the names of employees were submitted in confidence, revelation of their recorded comments, even in an unattributed form, unreasonably would have risked disclosure of the participants' identities given the familiarity of the employees with each other.
For similar reasons, we denied a petition for the release of employment references provided by private employers to a public employer regarding an applicant for employment. Although the former employers did not object to disclosure of their names, they had requested confidentiality for the particular statements they made. We determined that the contents of their statements were exempt from disclosure because revealing the substance of the statements would necessarily reveal who had made the particular statements. The former employers had referred to specific events and decisions in evaluating the applicant's work and therefore deleting only the employers' names would not permit disclosure while still preserving the confidentiality requested by the citizens.
If the information received is of a law violation, in a report made to a law enforcement officer or to a legislative committee or staff member, the identity of the informant may be exempt from disclosure under ORS 192.502(9), and ORS 40.275, Rule 510 of the Oregon Evidence Code, relating to the government privilege not to disclose the identity of an informer, even if the requirements of ORS 192.502(4) for information submitted in confidence are not met.
I.E.4.d.(5) Corrections and Parole Board Records
ORS 192.502(5) exempts:
Information or records of the Department of Corrections, including the State Board of Parole and Post-Prison Supervision, to the extent that disclosure would interfere with the rehabilitation of a person in custody of the department or substantially prejudice or prevent the carrying out of the functions of the department, if the public interest in confidentiality clearly outweighs the public interest in disclosure.
The test for applying this exemption is stated in the alternative: The records are exempt if disclosure would interfere with the rehabilitation of a person in custody, or would substantially prejudice or prevent carrying out department or board functions. In either case, the public interest in confidentiality must clearly outweigh the public interest in disclosure.
If disclosure would threaten or impair the department's ability to preserve internal order and discipline in its correctional facilities, to maintain facility security against escape or unauthorized entry, or to protect the public's safety, or if disclosure would interfere with the rehabilitation of a person in the department's custody, the public interest in confidentiality will, in most circumstances, clearly outweigh the public interest in disclosure. We have concluded that both the medical screening criteria used by the department in determining whether an inmate can be transferred out of state and the department's policy and procedures on the management of hunger strikes are exempt because disclosure would jeopardize the department's ability to manage and control its prison population effectively.
Department and board records pertaining to a person who is or has been in the custody or under the lawful supervision of a state agency, a court or a unit of local government, are exempt from disclosure under another provision of the Public Records Law for a period of 25 years after termination of such custody or supervision to the extent that disclosure of the records would interfere with the rehabilitation of the person, if the public interest in confidentiality clearly outweighs the public interest in disclosure. ORS 192.496(3).
I.E.4.d.(6) Lending Institution Records
ORS 192.502(6) exempts:
Records, reports and other information received or compiled by the Director of the Department of Consumer and Business Services in the administration of ORS chapters 723 and 725 not otherwise required by law to be made public, to the extent that the interests of lending institutions, their officers, employees and customers in preserving the confidentiality of such information outweighs the public interest in disclosure.
ORS chapter 723 relates to credit unions. Chapter 725 relates to consumer finance.
I.E.4.d.(7) Presentence and Probation Reports
ORS 192.502(7) exempts:
Reports made to or filed with the court under ORS 137.077 or 137.530.
ORS 137.077 governs the disclosure of presentence reports and provides that they are not public records. Under that statute, presentence reports may be disclosed only to: (1) the sentencing court; (2) other judges who participate in a sentencing council discussion of the defendant; (3) the Department of Corrections, the Board of Parole and other persons or agencies having a legitimate professional interest in information likely to be contained in the report; (4) appellate or review courts or courts hearing post-conviction relief cases; (5) the district attorney, the defendant, or counsel for the defendant; and (6) the victim. ORS 137.077 also expressly permits the recipients of presentence reports to disclose information from those reports (as opposed to the reports themselves) to certain persons and agencies in specified circumstances.
ORS 137.530 relates to investigative reports made by parole and probation officers at the direction of the court and the statement of the victim taken pursuant to a presentence report.
I.E.4.d.(8) Federal Law Exemption
ORS 192.502(8) exempts:
Any public records or information the disclosure of which is prohibited by federal law or regulations.
The many federal laws and regulations that prohibit or limit disclosure of particular records (e.g., public assistance and unemployment insurance records, certain student records and records containing "protected health information") in the possession of public bodies of this state are beyond the scope of this manual. Individual public bodies should be familiar with the laws and regulations applicable to any federal program with which they are involved. To claim this exemption, public bodies must be able to point to a specific federal law or regulation that prohibits disclosure. For example, we concluded that the Oregon Department of Agriculture is subject to the same restrictions on disclosure of federal Food and Drug Administration (FDA) records as the FDA would be. The federal regulations prohibit disclosure of FDA law enforcement records, including FDA investigation reports and internal memoranda. Also, we determined that regulations promulgated by the federal Social Security Administration (SSA) control the disclosure of SSA disability program records in the possession of the Oregon Department of Human Services. We concluded that a federal law or regulation which expresses a clearly prohibitory policy, such as the Buckley Amendment to the Freedom of Information Act, is to be deemed a prohibition even if the means of enforcing the federal policy—loss of federal funds—is only indirectly prohibitory.
I.E.4.d.(9) Other Oregon Statutes Establishing Specific Exemptions
ORS 192.502(9)(a) exempts:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential or privileged under Oregon law.
The confidentiality protection of any record covered by an Oregon statute outside of the Public Records Law is incorporated into the Public Records Law by ORS 192.502(9)(a). Such a record is exempt, conditionally exempt or partially exempt from disclosure to the extent provided in the incorporated statute. While the attorney-client privilege recognized by ORS 40.225 is also incorporated by this statute, its availability as an exemption to disclosure is narrowed somewhat by special rules set out in ORS 192.502(9)(b), discussed below. See App G for a partial list of Oregon statutes exempting information from public disclosure.
I.E.4.d.(9)(a) In General
A survey of public record orders illustrates some of these statutory exemptions outside of the Public Records Law. A report to the Board of Nursing concerning a possible violation of the statutes regulating the nursing profession, ORS 678.010 to 678.410, is confidential and not subject to public disclosure under ORS 678.126(1). ORS 179.505 prohibits disclosure of medical and psychiatric records except upon satisfaction of specified conditions, such as ORS 179.505(3)(a)–(e) which permit disclosure upon written consent of the patient.
In some cases, a record may be exempt under both ORS 192.502(9), the state law exemption, and ORS 192.502(8), the federal law exemption. For example, we denied a request for disclosure of an unedited copy of the Portland State University security office daily log, which records arrests and criminal reports on campus. The university disclosed the information except for certain exempt material, i.e., students' names and personally identifiable information, which was deleted. This information was exempt under ORS 192.496(4), which exempts "[s]tudent records required by state or federal law to be exempt from disclosure." State and federal law both prohibit the release of information directly related to a student. Similarly, we denied disclosure of the names and addresses of obligors in the Oregon Child Support Program based on 26 USC §§ 6103(a)(2), (l)(6) and (p)(4), and ORS 314.835 and 418.135. Those federal and state prohibitions are incorporated into the Public Records Law by ORS 192.502(8) and (9).
The Public Contracting Code provides for the confidentiality of proposals until after the contracting agency issues notice of intent to award a contract. See ORS 279B.060(5) and OAR 137-047-0450(2) for goods and services contracts; ORS 279C.410(1) and OAR 137-049-0330(3) for public improvement contracts. Under ORS 279B.060(5)(b), after providing notice, the contracting agency may continue to keep confidential those parts of a proposal which qualify for exemption under any provision of ORS 192.501 or 192.502. However, once the contracting agency provides notice of intent to award a contract to which ORS 279C.410 applies, it may continue to keep confidential only those parts of a proposal which qualify under the "trade secret" or "information submitted in confidence" exemptions in ORS 192.501(3) and 192.502(4), respectively. ORS 279C.410(3). Notice of intent to award is further described in the Attorney General's Model Public Contract Rules at OAR 137-047-0610 and OAR 137-049-0395.
Bids are confidential, but only prior to the close of the Invitation to Bid and the time set for bid opening. See ORS 279B.055(5)(a) and 279C.365(2)(a) and (3). Once bids have been opened, they are available for public inspection, except to the extent that the bidder has appropriately designated parts of the bid as trade secrets, which may then be exempt from disclosure under ORS 192.501(2), or as information submitted to a public body in confidence, which may be exempt under ORS 192.502(4). See ORS 279B.055(5)(c).
The Public Records Law is distinguishable from statutes that give particular persons special access to government records. Even when a statute grants specified persons special access to certain records, unless otherwise provided those records remain "public records" subject to other compatible provisions of the Public Records Law, including the exemptions from disclosure.
ORS 40.225 to 40.295, the "privileges" section of the Oregon Evidence Code, includes the lawyer-client privilege, psychotherapist-patient, physician-patient and nurse-patient privileges, school employee-student privilege, clinical social worker-client, husband-wife, clergy-penitent, stenographer-employer, public officer and identity of informant privileges. These privileges are incorporated by ORS 192.502(9)(a) into the unconditional exemptions under the Public Records Law, though the attorney-client privilege is subject to special treatment under ORS 192.502(9)(b), discussed below.
We concluded that both the psychotherapist-patient privilege and the physician-patient privilege protected the medical records of patients at Dammasch State Hospital. Unless those privileges are waived by a personal representative, they remain in effect after a patient's death. However, ORS 192.495 requires the public body to release any such records that are more than 25 years old.
The "public officer privilege" in ORS 40.270 provides as follows:
A public officer shall not be examined as to public records determined to be exempt from disclosure under ORS 192.501 to 192.505.
Thus, it is not possible to nullify an exemption from the disclosure requirements by calling a public officer to testify about exempt records, or by subpoena. The court, of course, may require testimony if it finds that the records are not in fact entitled to exemption.
I.E.4.d.(9)(b) Attorney-Client Privilege
Records which are protected by attorney-client privilege, ORS 40.225, are also ordinarily exempt from disclosure under the Public Records Law. For example, we have concluded that specified records in an Oregon State Bar disciplinary proceeding were covered under the attorney-client privilege and, therefore, were exempt from disclosure under ORS 192.502(9). We reached the same conclusion concerning a request for memoranda sent by the Public Utility Commission staff to its legal counsel, and vice versa, containing confidential communications made for the purpose of facilitating counsel's rendition of professional services to staff in a pending contested case. Communications between an agency's representatives and representatives of its legal counsel may also fall within the attorney-client privilege.
However, the Public Records Law describes a specific set of circumstances in which the attorney-client privilege does not exempt information from disclosure. Under that paragraph, privileged information is not exempt from disclosure if all of the following criteria are present:
It is factual information that is
not otherwise exempt from disclosure
not compiled in preparation for litigation, arbitration or an administrative proceeding likely to be initiated or actually initiated
Compiled by or at the direction of an attorney
As part of an investigation on behalf of a public body
In response to "information of possible wrongdoing by the public body" and
The holder of the privilege has "made or authorized a public statement characterizing or partially disclosing the factual information."
Usually, if a record is not exempt from disclosure, it must be made available for the requester's inspection. But ORS 192.423 provides another option with regard to the information described in ORS 192.502(9)(b). When a public record is subject to disclosure under that provision, the public body may elect instead to "prepare and release a condensation from the record of the significant facts."
The statute provides no further guidance regarding the contents or format of the "condensation." But if the public body prepares and releases a condensation in lieu of disclosing the record, the requester may nevertheless petition for review of the denial of the opportunity to inspect or receive a copy of the underlying records in accordance with the procedures described in Section I.G of this manual. In such a review, the reviewing body shall, "in addition to reviewing the records to which access was denied, compare those records to the condensation to determine whether the condensation adequately describes the significant facts contained in the records."
Release of a factual condensation does not waive the attorney-client privilege. Nor is the privilege waived with regard to "a communication ordered to be disclosed under ORS 192.410 to 192.505." (Emphasis added). The statutes do not expressly address the status of the privilege with regard to the records themselves if they are disclosed voluntarily based on the public body's assessment of the application of new ORS 192.503(9)(b). But releasing complete records where a public agency could instead choose to release a condensation of the records may be a "voluntary disclosure" of the materials within the meaning of ORS 40.280 (OEC 511). For that reason, we recommend operating under the assumption that releasing lawyer-client privileged records in their entirety operates as a waiver of the privilege.
I.E.4.d.(10) Transferred Records
ORS 192.502(10) exempts:
Public records or information described in this section, furnished by the public body originally compiling, preparing or receiving them to any other public officer or public body in connection with performance of the duties of the recipient, if the considerations originally giving rise to the confidential or exempt nature of the public records or information remain applicable.
State and local public bodies regularly exchange records with each other in connection with their mutual functions and duties. If a public body that has received records from another public body gets a request for those records, it must first determine whether it is the records custodian for purposes of the Public Records Law. A public body is not the custodian of the records if it has custody of the records merely as an agent for another public body that is the custodian. ORS 192.410(1)(b). When a public body is not the custodian of records, it has no duty to permit inspection or copying of the records, unless the records are not otherwise available, and may merely refer the requester to the public body that is custodian of the records. Id. It is possible that both the public body furnishing the records and the public body receiving the records are custodians because both bodies have the records for their own programmatic purposes. In that case, the receiving public body has all duties of a records custodian under the Public Records Law.
Before disclosing the records for which it is a custodian, a public body that has received records from another public body should discuss with the "furnishing" public body any exemptions that might apply to the records. Under ORS 192.502(10), when the records are exempt in the hands of the "furnishing" public body, those records remain exempt in the hands of the "receiving" public body if the reasons for confidentiality remain applicable.
I.E.4.d.(11) Security Programs for Transportation of Radioactive Material
ORS 192.502(11) exempts:
Records of the Energy Facility Siting Council concerning the review or approval of security programs pursuant to ORS 469.530.
This provision is a part of legislation setting out the duties of the Energy Facilities Siting Council (EFSC), the state agency that permits the siting of energy facilities. EFSC and the director of the Office of Energy must review and approve security measures related to nuclear power plants, and the transportation of radioactive material pursuant to ORS 469.530. There is also an exemption from the Public Meetings Law for deliberations of EFSC on these matters. ORS 192.660(2)(m). ORS 192.502(32) exempts from disclosure records concerning review or approval of programs relating to the security of the generation, storage or conveyance of "hazardous substances," as defined in ORS 453.005(7)(a), (b) and (d), which may include radioactive material. See Section I.E.4.d.(33) Security Programs.
I.E.4.d.(12) PERS Nonfinancial Information about Members
ORS 192.502(12) exempts:
Employee and retiree address, telephone number and other nonfinancial membership records and employee financial records maintained by the Public Employees Retirement System pursuant to ORS chapters 238 and 238A.
This type of financial and personal information is considered private and personal to PERS members and should only be released to the member or at the member's direction. We have concluded that this exemption does not apply to the mere fact that a person is a PERS member.
I.E.4.d.(13) Records Relating to the State Treasurer or OIC Publicly Traded Investments.
ORS 192.502(13) provides:
Records of or submitted to the State Treasurer, the Oregon Investment Council or the agents of the treasurer or council relating to active or proposed publicly traded investments under ORS chapter 293, including but not limited to records regarding the acquisition, exchange or liquidation of the investments. For purposes of this subsection:
(a) The exemption does not apply to:
(A) The information in investment records solely related to the amount paid directly into an investment by, or returned from investment directly to, the treasurer or council; or
(B) The identity of the entity to which the amount was paid directly or from which the amount was received directly.
(b) An investment in a publicly traded investment is no longer active when acquisition, exchange or liquidation of the investment has been concluded.
This exemption makes confidential records provided to the State Treasurer or Oregon Investment Council (OIC) by private businesses or individuals related to proposed or active acquisition, exchange or liquidation of publicly traded investments. The exemption does not apply to records related to concluded transactions. After a transaction is concluded, the public agency may not deny inspection or copying of records, regardless of any promises made during the course of the transaction, unless another exemption applies.
These exemptions are intended to place the state on an equal footing with private investors in making investments, by maintaining the confidentiality of information concerning investments that still are under consideration. The provision also protects the public's right to know how public funds are invested by expressly stating that information regarding concluded investment transactions is not subject to the exemption. ORS chapter 293 addresses the administration of public funds. The exemption also does not apply to information regarding the amount of an investment, the return on an investment or the identity of entity with which the investment was placed.
I.E.4.d.(14) Records Relating to the State Treasurer or OIC Investment in Private Fund or Asset
ORS 192.502(14) provides:
(a) Records of or submitted to the State Treasurer, the Oregon Investment Council, the Oregon Growth Account Board or the agents of the treasurer, council or board relating to actual or proposed investments under ORS chapter 293 or 348 in a privately placed investment fund or a private asset including but not limited to records regarding the solicitation, acquisition, deployment, exchange or liquidation of the investments including but not limited to:
(A) Due diligence materials that are proprietary to an investment fund, to an asset ownership or to their respective investment vehicles.
(B) Financial statements of an investment fund, an asset ownership or their respective investment vehicles.
(C) Meeting materials of an investment fund, an asset ownership or their respective investment vehicles.
(D) Records containing information regarding the portfolio positions in which an investment fund, an asset ownership or their respective investment vehicles invest.
(E) Capital call and distribution notices of an investment fund, an asset ownership or their respective investment vehicles.
(F) Investment agreements and related documents.
(b) The exemption under this subsection does not apply to:
(A) The name, address and vintage year of each privately placed investment fund.
(B) The dollar amount of the commitment made to each privately placed investment fund since inception of the fund.
(C) The dollar amount of cash contributions made to each privately placed investment fund since inception of the fund.
(D) The dollar amount, on a fiscal year-end basis, of cash distributions received by the State Treasurer, the Oregon Investment Council, the Oregon Growth Account Board or the agents of the treasurer, council or board from each privately placed investment fund.
(E) The dollar amount, on a fiscal year-end basis, of the remaining value of assets in a privately placed investment fund attributable to an investment by the State Treasurer, the Oregon Investment Council, the Oregon Growth Account Board or the agents of the treasurer, council or board.
(F) The net internal rate of return of each privately placed investment fund since inception of the fund.
(G) The investment multiple of each privately placed investment fund since inception of the fund.
(H) The dollar amount of the total management fees and costs paid on an annual fiscal year-end basis to each privately placed investment fund.
(I) The dollar amount of cash profit received from each privately placed investment fund on a fiscal year-end basis.
See discussion of this provision in discussion of ORS 192.502(13). ORS 192.502(14) makes confidential records related to proposed or actual investments under ORS chapter 293 or 348 in a privately placed investment fund or a private asset.
I.E.4.d.(15) Public Employees Retirement Fund and Industrial Accident Fund Monthly Reports
ORS 192.502(15) exempts:
The monthly reports prepared and submitted under ORS 293.761 and 293.766 concerning the Public Employees Retirement Fund and the Industrial Accident Fund may be uniformly treated as exempt from disclosure for a period of up to 90 days after the end of the calendar quarter.
This provision was submitted by the Office of State Treasurer after the legislature expressed concern that former ORS 192.502(13) did not cover the monthly reports that must be submitted under ORS 293.761 and 293.766. Release of the information in these monthly reports would give other investment managers information regarding investments and liquidations that would prevent the Oregon Investment Council from getting the best return for the Public Employees Retirement Fund and the Industrial Accident Fund. The time period in the exemption reflects the Office of State Treasurer's practice prior to the enactment of this exemption.
I.E.4.d.(16) Abandoned Property Reports
ORS 192.502(16) exempts:
Reports of unclaimed property filed by the holders of such property to the extent permitted by ORS 98.352.
ORS 98.352(4) provides that reports of unclaimed property are exempt from public review for 12 months from the time the property is reportable and for 24 months after the property has been remitted to the Division of State Lands (DSL). Thus, information concerning unclaimed property remitted to DSL by a holder is exempt from public disclosure for two years after the date the property is received by DSL. ORS 98.352(4) also exempts all lists of records or property held by a government or public authority pursuant to ORS 98.336 until 24 months after the property is remitted to DSL. This exempts a government agency's list of uncashed warrants during the period when the agency holds the list as well as when DSL holds the list. The intent is to shield such information from professional "bounty hunters" (persons who, for a commission, help owners recover unclaimed property) while the agency attempts to find the owners.
I.E.4.d.(17) Economic Development Information
ORS 192.502(17) exempts:
The following records, communications and information submitted to the Oregon Economic and Community Development Commission, the Economic and Community Development Department, the State Department of Agriculture, the Oregon Growth Account Board, the Port of Portland or other ports, as defined in ORS 777.005, by applicants for investment funds, loans or services including, but not limited to, those described in ORS 285A.224:
(a) Personal financial statements.
(b) Financial statements of applicants.
(c) Customer lists.
(d) Information of an applicant pertaining to litigation to which the applicant is a party if the complaint has been filed, or if the complaint has not been filed, if the applicant shows that such litigation is reasonably likely to occur; this exemption does not apply to litigation which has been concluded, and nothing in this paragraph shall limit any right or opportunity granted by discovery or deposition statutes to a party to litigation or potential litigation.
(e) Production, sales and cost data.
(f) Marketing strategy information that relates to applicant's plan to address specific markets and applicant's strategy regarding specific competitors.
In view of the fact that this exemption applies only in the context of loan applications, we have concluded that the phrase "[f]inancial statements of applicants" encompasses projected, or "pro-forma" financial statements of loan applicants, at least when derived from information specific to the project for which a loan is sought.
I.E.4.d.(18) Transient Lodging Tax Records
ORS 192.502(18) exempts:
Records, reports or returns submitted by private concerns or enterprises required by law to be submitted to or inspected by a governmental body to allow it to determine the amount of any transient lodging tax payable and the amounts of such tax payable or paid, to the extent that such information is in a form which would permit identification of the individual concern or enterprise. Nothing in this subsection shall limit the use which can be made of such information for regulatory purposes or its admissibility in any enforcement proceedings. The public body shall notify the taxpayer of the delinquency immediately by certified mail. However, in the event that the payment or delivery of transient lodging taxes otherwise due to a public body is delinquent by over 60 days, the public body shall disclose, upon the request of any person, the following information:
(a) The identity of the individual concern or enterprise that is delinquent over 60 days in the payment or delivery of the taxes.
(b) The period for which the taxes are delinquent.
(c) The actual, or estimated, amount of the delinquency.
ORS 192.502(18) applies to records required to be submitted to or inspected by a "governmental body" in relation to determining the amount of transient lodging tax due, and requires disclosure of specified information when payment or delivery of taxes otherwise due is delinquent by over 60 days. Related to this exemption, ORS 320.340 exempts from disclosure public records of moneys received by the Department of Revenue under the state taxing provisions. Also, under ORS 320.330 and 320.340, the pre-existing confidentiality provisions of ORS 314.835 apply to state transient lodging tax reports and returns. With limited exceptions, ORS 314.835 makes the disclosure of such reports and returns by Department of Revenue staff, or by others to whom disclosure is permitted, unlawful. ORS 192.502(18) applies only to records pertaining to the payment of transient lodging taxes assessed by local governments. State transient lodging tax reports and returns are exempt under ORS 192.502(9).
I.E.4.d.(19) Information for Obtaining Court-Appointed Counsel
ORS 192.502(19) exempts:
All information supplied by a person under ORS 151.485 for the purpose of requesting appointed counsel, and all information supplied to the court from whatever source for the purpose of verifying the financial eligibility of a person pursuant to ORS 151.485.
The Public Defense Services Commission administers an indigent defense program under which defendants in certain types of cases may apply for court-appointed legal counsel. ORS 192.502(19) exempts from disclosure all information supplied to the Commission or to court personnel in order to request counsel or to verify indigency under this program. Much of that information is also confidential and disclosure may violate state or federal law.
I.E.4.d.(20) Workers' Compensation Claim Records
ORS 192.502(20) exempts:
Workers' compensation claim records of the Department of Consumer and Business Services, except in accordance with rules adopted by the Director of the Department of Consumer and Business Services, in any of the following circumstances:
(a) When necessary for insurers, self-insured employers and third party claim administrators to process workers' compensation claims.
(b) When necessary for the director, other governmental agencies of this state or the United States to carry out their duties, functions or powers.
(c) When the disclosure is made in such a manner that the disclosed information cannot be used to identify any worker who is the subject of a claim.
(d) When a worker or the worker's representative requests review of the worker's claim record.
This exemption was created to prevent people from using information in public records of the Department of Consumer and Business Services (DCBS) to discriminate unlawfully against persons previously injured on the job who have filed a workers' compensation claim. The exemption has four exceptions permitting workers' compensation claim records to be disclosed in accordance with rules of the DCBS director when necessary to process claims, when necessary for governmental agencies to carry out their functions, when the disclosed information cannot be used to identify any worker who is the subject of a claim, or when a worker or his or her representative requests review of the worker's claim record. Based on our review of legislative history, we interpret "claim records" to include both substantive information about a worker and a worker's claim and docketing information about a claim, such as the names of the claimant, the employer and the insurer.
I.E.4.d.(21) OHSU Sensitive Business Records
ORS 192.502(21) exempts:
Sensitive business records or financial or commercial information of the Oregon Health and Science University that is not customarily provided to business competitors.
This provision was part of the legislation that generally removed OHSU from the authority of the State Board of Higher Education and established the university as a public corporation. The corporation was granted increased operating flexibility in order to best ensure its success, while retaining principles of public accountability and fundamental public policy. The Oregon Court of Appeals has interpreted this exemption as generally applying to:
[R]ecords or information pertaining to activities of OHSU that are commercial in nature – including medical and scientific research activities if conducted for commercial purposes or in a commercial manner – where the records or information ordinarily would not be provided to either OHSU's or its business partners' competitors.
Under this interpretation, the court held that the names of particular pharmaceutical companies with which OHSU had contracted to test their experimental drugs were exempt from disclosure, as were the names of the drugs being tested.
I.E.4.d.(22) OHSU Candidates for University President
ORS 192.502(22) exempts:
Records of Oregon Health and Science University regarding candidates for the position of president of the university.
This provision was also part of the legislation removing OHSU generally from the authority of the State Board of Higher Education and establishing the university as a public corporation.
I.E.4.d.(23) Library Records
ORS 192.502(23) exempts:
The records of a library, including:
(a) Circulation records, showing use of specific library material by a named person;
(b) The name of a library patron together with the address or telephone number of the patron; and
(c) The electronic mail address of a patron.
I.E.4.d.(24) Housing and Community Services Department Records
ORS 192.502(24) exempts:
The following records, communications and information obtained by the Housing and Community Services Department in connection with the department's monitoring or administration of financial assistance or of housing or other developments:
(a) Personal and corporate financial statements and information, including tax returns.
(b) Credit reports.
(c) Project appraisals.
(d) Market studies and analyses.
(e) Articles of incorporation, partnership agreements and operating agreements.
(f) Commitment letters.
(g) Project pro forma statements.
(h) Project cost certifications and cost data.
(j) Project tenant correspondence.
(k) Personal information about a tenant.
(L) Housing assistance payments.
This provision exempts from disclosure certain records obtained by the Housing and Community Services Department regarding individuals applying for government-subsidized housing or businesses applying for funding to develop affordable, government-subsidized housing and to maintain their ongoing operation of such housing. The purpose of the provision is to protect from public disclosure the detailed personal and business information that applicants and businesses must submit to the state as a condition of participating in the subsidized housing program.
I.E.4.d.(25) Forestland Geographic Information System
ORS 192.502(25) exempts:
Raster geographic information system (GIS) digital databases, provided by private forestland owners or their representatives, voluntarily and in confidence to the State Forestry Department, that is not otherwise required by law to be submitted.
The State Forestry Department, working with a variety of interests, has developed a comprehensive database called Geographic Information Systems (GIS) which displays information about forestland conditions. This exemption addresses the concern of private landowners regarding their voluntary disclosure to the Department of Forestry of accurate and detailed information about their land for purposes of the GIS.
I.E.4.d.(26) Public Sale or Purchase of Electric Power
ORS 192.502(26) exempts:
Sensitive business, commercial or financial information furnished to or developed by a public body engaged in the business of providing electricity or electricity services, if the information is directly related to a transaction described in ORS 261.348, or if the information is directly related to a bid, proposal or negotiations for the sale or purchase of electricity or electricity services, and disclosure of the information would cause a competitive disadvantage for the public body or its retail electricity customers. This subsection does not apply to cost-of-service studies used in the development or review of generally applicable rate schedules.
Under federal law, community-owned utilities are able to purchase their energy on a competitive open market basis. This exemption is designed to protect information the disclosure of which would adversely affect the public sale or purchase of electric power by public bodies engaged in providing electricity. The disclosure must create a competitive disadvantage to either the public body or its retail customers for the exemption to apply.
I.E.4.d.(27) Klamath Cogeneration Project
ORS 192.502(27) exempts:
Sensitive business, commercial or financial information furnished to or developed by the City of Klamath Falls, acting solely in connection with the ownership and operation of the Klamath Cogeneration Project, if the information is directly related to a transaction described in ORS 225.085 and disclosure of the information would cause a competitive disadvantage for the Klamath Cogeneration Project. This subsection does not apply to cost-of-service studies used in the development or review of generally applicable rate schedules.
This provision was added to the Public Records Law to address the same concerns that prompted the exemption in ORS 192.502(26) discussed above. ORS 225.085 grants the City of Klamath Falls the authority to enter into certain transactions involving various aspects of the provision of electricity or fuel in relation to the ownership and operation of the Klamath Cogeneration Project. This exemption protects information pertaining to these transactions when the disclosure would cause a competitive disadvantage for the Project.
I.E.4.d.(28) Public Utility Customer Information
ORS 192.502(28) exempts:
Personally identifiable information about customers of a municipal electric utility or a people's utility district or the names, dates of birth, driver license numbers, telephone numbers, electronic mail addresses or Social Security numbers of customers who receive water, sewer or storm drain services from a public body as defined in ORS 174.109. The utility or district may release personally identifiable information about a customer, and a public body providing water, sewer or storm drain services may release the name, date of birth, driver license number, telephone number, electronic mail address or Social Security number of a customer, if the customer consents in writing or electronically, if the disclosure is necessary for the utility, district or other public body to render services to the customer, if the disclosure is required pursuant to a court order or if the disclosure is otherwise required by federal or state law. The utility, district or other public body may charge as appropriate for the costs of providing such information. The utility, district or other public body may make customer records available to third party credit agencies on a regular basis in connection with the establishment and management of customer accounts or in the event such accounts are delinquent.
I.E.4.d.(29) Alternative Transportation Addresses
ORS 192.502(29) exempts:
A record of the street and number of an employee's address submitted to a special district to obtain assistance in promoting an alternative to single occupant motor vehicle transportation.
This exemption encourages employers to turn over lists of employees and their addresses to mass transit districts, transportation districts and metropolitan service districts so that the districts can contact employees about using alternative transportation. The exemption does not apply to zip codes.
I.E.4.d.(30) Oregon Corrections Enterprises
ORS 192.502(30) exempts:
Sensitive business records, capital development plans or financial or commercial information of Oregon Corrections Enterprises that is not customarily provided to business competitors.
The Oregon Corrections Enterprises (OCE) is a semi-independent state agency, which is authorized to engage eligible inmates in state correction institutions in work or on-the-job training. The OCE also has the authority to enter into contracts with private persons or governmental agencies to produce, market and make available prison work products or services. The exemption in ORS 192.502(30) allows the OCE to maintain an equal footing with other competitive entities that provide the same or similar products and services by preventing the disclosure of information that is not generally available to competitors.
I.E.4.d.(31) Confidential Submissions to DCBS
ORS 192.502(31) exempts:
Documents, materials or other information submitted to the Director of the Department of Consumer and Business Services in confidence by a state, federal, foreign or international regulatory or law enforcement agency or by the National Association of Insurance Commissioners, its affiliates or subsidiaries under ORS 697.005 to 697.095, 697.602 to 697.842, 705.137, 717.200 to 717.320, 717.900 or 717.905, ORS chapter 59, 723, 725 or 726, the Bank Act or the Insurance Code when:
(a) The document, material or other information is received upon notice or with an understanding that it is confidential or privileged under the laws of the jurisdiction that is the source of the document, material or other information; and
(b) The director has obligated the Department of Consumer and Business Services not to disclose the document, material or other information.
This exemption enables the Department of Consumer and Business Services to maintain the confidentiality of information received from certain entities under Oregon statutes related to the regulation of a variety of businesses offering consumer services, e.g., credit unions, debt consolidation agencies and insurance companies.
I.E.4.d.(32) County Elections Security Plans
ORS 192.502(32) exempts:
A county elections security plan developed and filed under ORS 254.074.
This provision exempts from disclosure a security plan filed by a county clerk that addresses election security issues, such as a county's security procedures for transporting and processing ballots. ORS 254.074 contains a list of the required contents of a county's elections security plan.
I.E.4.d.(33) Security Programs
ORS 192.502(33) exempts:
Information about review or approval of programs relating to the security of:
(a) Generation, storage or conveyance of:
(B) Gas in liquefied or gaseous form;
(C) Hazardous substances as defined in ORS 453.005(7)(a), (b) and (d);
(D) Petroleum products;
(E) Sewage; or
(b) Telecommunications systems, including cellular, wireless or radio systems.
(c) Data transmissions by whatever means provided.
Resulting from a review of Oregon laws after the terrorist attacks of September 11, 2001, the exemption provides for maintaining the confidentiality of records that contain information about the review or approval of programs that relate to the security of: (a) generating, storing or conveying certain types of materials, (b) telecommunication systems and (c) data transmissions. A separate subsection of the Public Records Law, ORS 192.502(11), exempts from disclosure records of the Energy Facility Siting Council concerning review or approval of security programs for nuclear power plants or the transportation of radioactive material. See Section I.E.4.d.(4) Confidential Submissions.
I.E.4.d.(34) Paternity or Support Judgments or Judicial Orders
ORS 192.502(34) exempts:
The information specified in ORS 25.020(8) if the Chief Justice of the Supreme Court designates the information as confidential by rule under ORS 1.002.
ORS 25.020(8) identifies the information to be contained in a judicial judgment or order establishing paternity or including a provision concerning support. Subsection (8)(e) of that statute authorizes the Chief Justice of the Oregon Supreme Court, in consultation with the Department of Justice, to adopt rules designating this information as confidential. ORS 192.502(34) exempts from disclosure whatever information the Chief Justice designates as confidential through rulemaking.
I.E.4.d.(35) SAIF Corporation Employer Account Records
ORS 192.502(35) exempts:
(a) Employer account records of the State Accident Insurance Fund Corporation.
(b) As used in this subsection, "employer account records" means all records maintained in any form that are specifically related to the account of any employer insured, previously insured or under consideration to be insured by the State Accident Insurance Fund Corporation and any information obtained or developed by the corporation in connection with providing, offering to provide or declining to provide insurance to a specific employer. "Employer account records" includes, but is not limited to, an employer's payroll records, premium payment history, payroll classifications, employee names and identification information, experience modification factors, loss experience and dividend payment history.
(c) The exemption provided by this subsection may not serve as the basis for opposition to the discovery documents in litigation pursuant to applicable rules of civil procedure.
I.E.4.d.(36) SAIF Corporation Claimant Records
ORS 192.502(36) exempts:
(a) Claimant files of the State Accident Insurance Fund Corporation.
(b) As used in this subsection, "claimant files" includes, but is not limited to, all records held by the corporation pertaining to a person who has made a claim, as defined in ORS 656.005, and all records pertaining to such a claim.
(c) The exemption provided by this subsection may not serve as the basis for opposition to the discovery documents in litigation pursuant to applicable rules of civil procedure.
I.E.4.d.(37) Military Discharge Records
ORS 192.502(37) exempts:
Except as authorized by ORS 408.425, records that certify or verify an individual's discharge or other separation from military service.
I.E.5. Separation of Exempt and Nonexempt Material
ORS 192.505 provides:
If any public record contains material which is not exempt under ORS 192.501 and 192.502, as well as material which is exempt from disclosure, the public body shall separate the exempt and nonexempt material and make the nonexempt material available for examination.
Often a record will contain material that is exempt and additional material that is nonexempt. The public body must separate the nonexempt material and make it available where it is reasonably possible to do so. The public body may charge its actual costs for separating the exempt and nonexempt material. See discussion above of Fees for Record Requests. No specific request to segregate exempt and nonexempt information is necessary. However, the obligation to separate and disclose the nonexempt material may not occur to the public body, so a specific request to do so—even after a refusal to disclose—can be helpful. A public body should inform the requester when it is disclosing less than all of the information requested and state the reason for nondisclosure.
I.E.6. Records More than 25 Years Old
Generally, the Public Records Law does not exempt from disclosure records that are more than 25 years old. ORS 192.495. Exceptions to this requirement are provided in ORS 192.496 for:
(a) Records less than 75 years old if they contain information about the physical or mental health or psychiatric care or treatment of a living individual, if disclosure would constitute an unreasonable invasion of privacy. The party seeking disclosure has the burden of showing by "clear and convincing evidence" that the public interest requires disclosure, and that disclosure does not constitute an unreasonable invasion of privacy.
(b) Records less than 75 years old which are sealed by statute or by court order, unless a court orders disclosure.
(c) Records of a person who is or has been in custody or under supervision of a state agency, court or local government are exempt from disclosure for a period of 25 years following termination of the custody or supervision, to the extent that disclosure would interfere with rehabilitation of the person if the public interest in confidentiality clearly outweighs the public interest in disclosure. The exception does not prevent disclosing the fact that a person is in custody.
(d) Student records exempt from disclosure under state or federal law.
We have concluded that certain juvenile records remain exempt even after 25 years, notwithstanding ORS 192.495; the relevant records were governed by ORS 419A.255. The relevant provisions require either the court or the affected juvenile to approve disclosure of the records except in specifically enumerated circumstances. That general prohibition on disclosure is not temporally limited. We determined that principles of statutory interpretation require us to give effect to the specific prohibition of ORS 419A.255 rather than the general disclosure rule of ORS 192.495.
I.E.7. Health Services Records
ORS 192.493 addresses disclosure of particular records related to the state's provision of medical assistance:
A record of an agency of the executive department as defined in ORS 174.112 that contains the following information is a public record subject to inspection under ORS 192.420 and is not exempt from disclosure under ORS 192.501 or 192.502 except to the extent that the record discloses information about an individual's health or is proprietary to a person:
(1) The amounts determined by an independent actuary retained by the agency to cover the costs of providing each of the following health services under ORS 414.705 to 414.750 for the six months preceding the report:
(a) Inpatient hospital services;
(b) Outpatient hospital services;
(c) Laboratory and X-ray services;
(d) Physician and other licensed practitioner services;
(e) Prescription drugs;
(f) Dental services;
(g) Vision services;
(h) Mental health services;
(i) Chemical dependency services;
(j) Durable medical equipment and supplies; and
(k) Other health services provided under a prepaid managed care health services contract under ORS 414.725;
(2) The amounts the agency and each contractor have paid under each prepaid managed care health services contract under ORS 414.725 for administrative costs and the provision of each of the health services described in subsection (1) of this section for the six months preceding the report;
(3) Any adjustments made to the amounts reported under this section to account for geographic or other differences in providing the health services; and
(4) The numbers of individuals served under each prepaid managed care health services contract, listed by category of individual.
ORS chapter 414 addresses medical assistance provided by the State. ORS 192.493 relates to public records that concern amounts paid for specified health services and information about prepaid managed care health services contracts.
I.F. May a Public Body Voluntarily Disclose an Exempt Record to Selected Persons without Waiving Exemption Generally?
A public body occasionally may wish to disclose an exempt public record to a specific private individual, but not to the public at large. The question then arises whether, by selectively disclosing an exempt record, the public body loses its discretionary power to claim the exemption as to other requesters. We have concluded that, under certain circumstances, the public body still retains that power, stating: "[W]here limited disclosure of a public record does not thwart the policy supporting the exemption, the public body does not thereby waive its prerogative not to disclose the record to others."
The Court of Appeals has observed that "there is no blanket principle that applies to waiver" under the Public Records Law. Public bodies must therefore be sensitive to circumstances under which disclosure of information can act as a waiver of exemptions that might otherwise be available. For example, the Court of Appeals has determined that public disclosure of information from exempt records can operate as a waiver of the exemption for the records themselves. Consequently, when an investigating officer's testimony at an unemployment hearing disclosed substantially all of the information contained in an otherwise confidential investigation report and the testimony was available to the public, that testimony waived exemptions against disclosure of the report. A custodian that wishes to selectively disclose an exempt public record without generally waiving the exemption should consult with counsel.
I.G. Where and How Does a Person Proceed if Access Is Refused?
If a custodian denies a requester the right to inspect a public record, the recourse available to the requester generally depends on the identity of the public body denying the request:
- If the request was denied by a state agency or official, and not an elected official, the requester may petition the Attorney General for an order compelling disclosure of the responsive records. ORS 192.450(1).
- If the request was denied by a public body that is not a state agency and not an elected official, the requester may petition the district attorney in the county where the public body is located for an order compelling disclosure of the responsive records. ORS 192.460(1).
- If the request was denied by an elected official, the requester must seek review in Marion County Circuit court, or the circuit court in the county where the elected official is located. Note that court review is required even if the request was not made to an elected official if the request was denied by an elected official. ORS 192.480.
- The requester can also seek court review in Marion County or the county where the public body is located if the Attorney General or the District Attorney has denied any part of a petition. ORS 192.450 & 192.460.
Before seeking formal review of a decision by a public body's employee, it may be worthwhile for a disappointed requester to seek a decision at a higher level within the public body. This increases the probability of a favorable decision without the need to seek review, and may encourage the agency to obtain legal advice concerning disclosure of the records at issue.
I.G.1. Petitions to the Attorney General
I.G.1.a. Role of the Attorney General
In carrying out the responsibility for administrative review of state agency decisions to deny a request for public records, the Attorney General acts in a quasi-judicial role. Nevertheless, it is not improper for agencies to seek advice from the Attorney General's office regarding public records requests. In fact, to encourage compliance with the Public Records Law, the Attorney General's office continues to provide advice to state agencies even after the Attorney General has received a petition for an order compelling disclosure of the record or records.
Even if the agency has denied a records request after discussing the request for disclosure with the Attorney General, petitioning for the Attorney General's formal review may not be futile. Advice given to the agency in such circumstances, sometimes by assigned counsel without review by the Attorney General's Government Transparency Counsel, often is expressly preliminary. The advice may be based on a description of the requested record, rather than on inspection of the record. Sometimes, agencies do not follow the advice of the Attorney General's office. The petitioning process also gives the requester the opportunity to provide the Attorney General with additional information. For example, the requester may be able to articulate ways in which the disclosure would serve the public interest. Such information could lead to the conclusion that a conditional exemption claimed by the agency is not available under the circumstances.
I.G.1.b. General Procedures
The general procedures for seeking review by the Attorney General are described in this section. With respect to certain records of health professional regulatory boards, the procedures are somewhat different. Those procedures are discussed below.
There is no filing fee for filing a petition for review with the Attorney General. The statutory form of petition is set out in App B of this manual. It is not necessary to use any particular form, so long as the petition includes the information required by ORS 192.470(1):
The identity of the requester,
The public body that has the records being sought,
The records that are sought,
A statement that inspection was requested, and
A statement that the request was denied including the person denying the request and the date of the denial, if known.
It is helpful if the petition also explains why the requester believes that asserted exemptions do not apply.
Upon receipt of a petition, the Attorney General must promptly notify the agency. The agency must then transmit to the Attorney General the requested public record for review, together with a statement of its reasons for believing the public record should not be disclosed. The Attorney General instead may permit the agency to disclose the nature or substance of the record if that is appropriate under the circumstances. ORS 192.470(2). In a difficult case, the Attorney General may ask the requester and the agency to present statements of their positions.
The Attorney General has seven days in which to grant or deny the petition in whole or in part. If the Attorney General does not rule on the petition within the statutory time period, the failure to issue an order is treated as a denial for purposes of permitting judicial review. ORS 192.465(1). The Attorney General usually is able to issue an order within the statutory time period. In cases where the deadline is a problem, the Attorney General may ask the petitioner for additional time. The Attorney General sends the order granting or denying the petition, in whole or in part, to the petitioner and to the state agency.
The burden is on the state agency to sustain its denial of the records request. Consequently, if the Attorney General is unable to affirmatively conclude that records are exempt, the Attorney General must order them to be disclosed.
Court proceedings can be instituted after the petition process is concluded.
I.G.1.c. Health Professional Regulatory Boards
Special procedures for seeking review by the Attorney General apply to certain records of health professional regulatory boards.
If the public record being sought "contains information concerning a licensee or applicant," the petitioner must send a copy of the petition by first class mail to the health professional regulatory board. This must be done on or before the date of filing the petition with the Attorney General. Within 48 hours of receipt, the board must forward to affected licensees or applicants, via first class mail, (1) a copy of the petition, and (2) notice that the licensee or applicant may file a written response with the Attorney General not later than seven days after the date that the notice was sent by the board. If the Attorney General receives a written response from the licensee or applicant, the Attorney General must send a copy of that response to the petitioner. ORS 192.450(4). Although licensees and applicants are given the right to file a response with the Attorney General as many as nine days after the petition is filed, ORS 192.450(4) does not explicitly extend the seven days generally allowed for the Attorney General to issue an order. However, ORS 192.450(5) extends the Attorney General's deadline to fifteen days in a narrower subset of cases, discussed below. In light of the timeframe established by ORS 192.450(4), we believe that the legislature's intent was to allow the Attorney General fifteen days in which to respond in any case where an affected licensee has the right to respond to the petition.
If the record being sought was withheld on the basis of ORS 676.165 or 676.175, which relate to investigations by health professional regulatory boards, the Attorney General is expressly given fifteen days in which to respond to the petition. In addition, the person seeking disclosure must demonstrate to the Attorney General by clear and convincing evidence that the public interest in disclosure outweighs interests in nondisclosure. If the Attorney General orders disclosure of such records, the order must be served on the petitioner, the affected board, and affected licensees or applicants. The affected board may not disclose records under such an order before the seventh day following service of the Attorney General's order on affected licensees and applicants. Following the Attorney General's order, the board, the petitioner, or an affected licensee or applicant may institute court proceedings. ORS 192.450(5).
I.G.2. Petitions to the District Attorney
If a public records request is denied by a local government body or official, other than an elected official, a petition for disclosure may be filed with the district attorney in the county where the relevant public body is located. ORS 192.460. The petition must include the same information that is required in a petition to the Attorney General, and the procedure is identical to the procedure for petitions to the Attorney General. The procedures for court review following the district attorney's order are also largely the same.
I.G.3. Elected Officials
Neither the Attorney General nor a district attorney may review an elected official's decision to withhold a record from inspection under the Public Records Law. This rule applies regardless of whether the record in question is in the custody of the elected official or in the custody of any other public agency, so long as the elected official claims the right to withhold the record. ORS 192.480. Thus, if records in the custody of the Department of Corrections are sought, and the Governor orders nondisclosure, recourse is to the court only. In view of the fact that the section applies to records "as to which an elected official claims the right to withhold disclosure," it is not generally necessary to determine whether the official has custody of the record."
If the elected official orders nondisclosure even after a petition for review has been filed with the Attorney General or a district attorney, the reviewing officer is deprived of jurisdiction and the petitioner's recourse is to the court only. ORS 192.480. The same rule applies to decisions made by officials who have been appointed to fill a vacancy in an elective office.
A person whose public records request has been denied by an elected official may initiate court proceedings to challenge the denial. Such proceedings can be instituted in the Circuit Court for Marion County or the circuit court of the county in which the elected official is located. ORS 192.480.
Upon request, the Attorney General or district attorney may serve or decline to serve, in the discretion of the Attorney General or district attorney, as counsel in such suit for an elected official for which the Attorney General or district attorney ordinarily serves as counsel. Id. ORS 192.480 does not preclude an elected official from requesting advice from the Attorney General or district attorney on whether a public record must be disclosed.
I.G.4. Court Proceedings
Court review is available after an order of the Attorney General, after an order of a district attorney, or after an elected official has denied a public records request.
If the Attorney General or a district attorney orders a public body to disclose a public record, a public body other than a health professional regulatory board must comply with the order in full within seven days, or else give notice within that period that the public body intends to institute proceedings for injunctive or declaratory relief in circuit court. Copies of this notice must be sent to the Attorney General or district attorney, and by certified mail to the petitioner. The public body then must institute those proceedings within seven days after issuing the notice of its intention. ORS 192.450(2). The Attorney General will not represent a state agency in such a case. ORS 192.450(3). Nor will a district attorney represent another public body in such a case, even if the district attorney generally acts as attorney for that public body.
If the Attorney General's order denies the petition, the petitioner likewise has recourse to circuit court, as does a licensee or applicant who is the subject of records requested from a health professional regulatory board. ORS 192.450(2)(6). In such cases, the Attorney General will represent a state agency in defense of the agency's action. ORS 192.450(3). A district attorney, however, will not represent a public body whose determination the district attorney upholds unless the district attorney generally serves as the attorney for that public body. ORS 192.460(1)(c). The seven-day time limitation in ORS 192.450(2) does not apply to a suit filed by a petitioner. The timeline also does not apply to a health professional licensee or applicant. However, a professional health regulatory board may disclose records relating to a licensee or applicant beginning on the seventh day following an order granting a petition seeking that type of document.
If the petition is granted in part and denied in part, either the public body or the petitioner or both (as well as a licensee or applicant who is the subject of health professional regulatory board records) may institute court action. ORS 192.450(2) & (6). The Public Records Law is generally silent as to the procedure in a case in which two or more adverse parties pursue court proceedings in response to an order that partly grants and partly denies a petition. The law does specify, however, that the Attorney General cannot represent an agency if the Attorney General ordered disclosure of any documents and the agency did not comply. ORS 192.450(3). The same rule would apply if the order were issued by a district attorney.
Any action for injunctive or declaratory relief following an order of the Attorney General must be filed in the Circuit Court for Marion County, except that if the records are held by a health professional regulatory board, an action may be filed in the circuit court for the county where the records are held. ORS 192.450(2), (6). Court actions following an order of the district attorney must be filed in the circuit court of the county in which the district attorney exercises jurisdiction. ORS 192.460(1)(b). As noted above, court proceedings following a denial by an elected official can be instituted in Marion County or in the county where the elected official is located.
Regardless of whether court proceedings follow a petition to the Attorney General, a petition to a district attorney, or a denial by an elected official, the powers of the court are the same. Specifically, the court has jurisdiction to enjoin the public body from withholding records and to order production of any records improperly withheld. The court does not review any order of the Attorney General or a district attorney, but considers the matter de novo. The burden is on the public body to sustain its action, except that in the case of records of a health professional regulatory board, the person seeking disclosure of the records has the burden of demonstrating by clear and convincing evidence that the public interest in disclosure outweighs other interests in nondisclosure, including but not limited to the public interest in nondisclosure. ORS 192.450(6), 192.490(1). The public body may assert an exemption before the court that it did not raise in the course of review by the Attorney General or a district attorney.
In any case in which a requester petitions for judicial review and fully prevails, the public body will be required to compensate the requester for the cost of the litigation at trial and on appeal, including attorney fees. ORS 192.490(3). If a public body that has been ordered to disclose records fails within seven days to either disclose the records or to state its intention to seek judicial review, that public body will be required to pay the requester's litigation costs regardless of which side prevails. ORS 192.490(3). Furthermore, the public body may be required to pay these costs even if it offers to furnish the requested information, if the public body incorrectly asserts that disclosure is not required because the requested information is exempt.
However, if the requester prevails only in part, the award of costs, disbursements and attorney fees is discretionary. ORS 192.490(3).