|NOTE: In 1987, the legislature reorganized and renumbered the Public Records Law exemptions. Or Laws 1987, ch 764. Since then, several provisions of ORS 192.501 and 192.502 were also renumbered. The public record orders refer to the ORS cites in effect at the time the order was issued.|
February 18, 1981, Leslie Zaitz. Petition for an order requiring Oregon Government Ethics Commission to make available a credit report, an individual financial statement and the credit check worksheet of State Senator Richard Groener. Petition denied because information was personal and disclosure would be an unreasonable invasion of privacy. Petitioner failed to demonstrate an "overriding public interest to support disclosure."
March 6, 1981, Don Bishoff. Petition for an order to the Employment Relations Board requiring it to disclose the number of signatures on certain representation petitions. The petition was granted on grounds ORS 192.500(1)(g) exempts only the names and signatures of petitioners. The agency is not required to compile data, but the information sought had already been compiled. An asserted federal agency practice of nondisclosure is not a prohibition justifying nondisclosure under ORS 192.500(1)(g).
April 30, 1981, Julie Lou Tripp. Petition for order directing Adult and Family Services Division to release information on unsuccessful bidders for the state contract to direct mail food stamps. Petitioner sought names of unsuccessful bidders and amounts bid. Petition granted because bidders' names and amounts bid were not "trade secrets" pursuant to the exemption in ORS 192.500(1)(b). The information was not confidential under federal regulations either. Finally, requested information could not "reasonably be considered confidential" under ORS 192.500(2)(c).
May 15, 1981, Leslie Zaitz. Petition for an order requiring the State Ethics Commission to release State Senator Richard Groener's financial statement and the transcript of the commission's interview with Groener concerning the statement was granted. The records were perhaps personal, but available for disclosure primarily because Groener had invited interested parties to examine the records during a speech on the floor of the Senate. Thus, requester had shown, by clear and convincing evidence, that no unreasonable invasion of privacy would occur.
June 25, 1981, Lee Wendelbo. Petition for an order requiring the Water Resources Department to disclose an interoffice memo containing recommendations as to a water right transfer. Disclosure denied under ORS 192.500(2)(a), on grounds that the memo was preliminary and incomplete, in process of internal review and consideration before the employee's final recommendation―"'He needs the opportunity to even change his opinion as well as expand it without being bound to the first draft memo.'"
August 13, 1981, Bruce Westfall. Petition for an order requiring the Teacher Standards and Practices Commission to make available for inspection the report on an investigation of a false transcript allegedly found in a school administrator's file. Denied, on grounds that the commission's preliminary investigation and report had not been completed. The particular record named in the petition did not yet exist.
September 16, 1981, Bruce Westfall. Renewal of request for completed Teacher Standards and Practices Commission investigation report. Order granted disclosure despite commission's assertion that report was confidential under ORS 192.500(1)(c), personal information such that disclosure would be an unreasonable invasion of privacy.
October 8, 1981, Stephen Johnson. Petition for an order requiring Employment Division to produce Lumber and Wood Products Layoff-Closure Report(s). The reports were based in part on information secured from employers under ORS chapter 657 and in part from newspaper and other periodicals. ORS 657.665 (listed in ORS 192.500(2)(h)) prohibits disclosure of information received from employers under ORS chapter 657. The petition was denied as to such information in the reports and was granted as to the information derived from other sources. (NOTE: ORS 657.665(3) can be read to permit disclosure of information that is not identifiable as to individual employers or employees. The balance of the statute flatly prohibits disclosure; an ambiguity is created by the more permissive language of subsection (3).)
November 12, 1981, Blaine Newnham. Order granted inspection of NCAA complaint against the University of Oregon, with some deletions. The conditional exemption for interagency advisory communications was not applicable, because the NCAA is not a public body. The exemption for information submitted in confidence was not applicable, despite NCAA demand for confidentiality and university agreement, because the information could not reasonably be considered confidential and the public interest required disclosure of information relating to staff misconduct resulting in substantial adverse consequences to university athletic program. No adverse consequences to continuing investigation were likely. Names and other identification of students involved were deleted as required by federal law. University president had option under ORS 351.065 to delete names of staff members. Names of other persons involved, without official responsibilities, were deleted to protect their privacy except in a case in which wide publicity naming the person had already occurred.
November 19, 1981, Raleigh Lund. Order granted to allow inspection of copyrighted computer program belonging to Employment Division. The program is not exempt from disclosure, but the use after disclosure is limited by federal copyright laws.
March 22, 1982, John Reid. Petition for an order to make available transcript of a parole hearing. Hearing was taped, not transcribed. Obligation to disclose may be met by allowing petitioner to listen to tape, but there is no obligation to transcribe it. Parole Board may if it wishes to furnish a copy of transcript of tape at petitioner's expense.
May 10, 1982, Henry Kane. Petition for an order permitting inspection of "PMH financial records," these being records of a private insurance company in receivership, with the Insurance Commissioner named as receiver. The order stated:
Before the Attorney General makes such a determination, he must be fully advised of what records are being sought.* * * Even if we are to determine that such records are public records, there very well may be exemptions which apply. Therefore we must be fully advised of the particular financial records * * * which you seek.
May 19, 1982, Henry Kane. Same as May 10, 1982, in more detail. The order stated:
We express no opinion as to whether these records are public records, other than to note that appointing the Commissioner as receiver of an insolvent insurer may not convert the insurer into a public agency nor convert the insurer's private records into public records. * * * We conclude that the Attorney General lacks jurisdiction to consider the petition. * * * The judge appointing the Insurance Commissioner as a receiver is, of course, an elected official, and the receiver acts subject to the direction of the court. Thus, the receiver is an arm of the appointing court and owes a duty only to the court. Simply put, we lack jurisdiction to require the court or any of its agents to release documents.
June 25, 1982, Leslie Zaitz. Petition for an order to Workers' Compensation Department (WCD) allowing inspection of all WCD documents concerning audit of C. Dennis Williams' companies.
Petition granted in part and denied in part. Denied under ORS 192.500(1)(a) (litigation exemption) with respect to audit material specifically collected, compiled and created for purpose of determining liability of Williams' companies to WCD, in order to enforce payment by litigation or settlement induced by threat of litigation. Exemption not lost although much material was collected from Williams, and other material was discussed with him. Discussion of factors considered in determining that public interest did not weigh in favor of disclosure.
Denied under ORS 192.500(2)(a), preliminary internal memoranda, as to a few memos in file which were unduly frank expressions of opinion. Granted despite ORS 192.500(2)(a) as to many other internal memoranda, in the absence of any particular reasons for nondisclosure, for materials already publicly disclosed, including a 1981 audit, and for preliminary drafts of the 1981 audit.
July 6, 1982, Leslie Zaitz. Petition for an order to Department of Economic Development allowing inspection of an investigation report regarding Warren H. Merrill furnished by the Attorney General. Denied under ORS 192.500(2)(h) and ORS 40.225, the attorney-client privilege. We stated:
If the purpose is not waived [by the client], the exemption is absolute; neither the preliminary language of ORS 192.500(2) nor paragraph (h) itself contains any language providing for a balancing test. If the lawyer-client privilege is applicable, the Attorney General cannot consider whether or not the information should be disclosed in the public interest, but must deny your petition.
The report was our work product and our legal advice to our client, and the privilege was applicable. Disclosure by the commission of a previous investigation report involving the same person but other subject matter did not waive the privilege as to this report.
July 19, 1982, John Baucom. Petition for an order allowing inspection of Corrections Division files concerning the petitioner's incarceration and parole. The division would not allow inspection, but offered to furnish copies at 50 cents per page. We concluded that the right to inspection is satisfied by the furnishing of copies for which the division has a right to charge. The division would clearly have the right to charge for the supervisory time necessary to allow inspection of the original records and to pull the exempt materials from the file. The division has determined that this would be as expensive and less convenient than simply furnishing copies, and we cannot say that this determination (or the 50 cents per page charge) is unreasonable. Petition denied.
July 23, 1982, Stephen Schell. Petition for an order allowing inspection of Department of Fish and Wildlife records relating to application for a permit to spray carbaryl on Tillamook Bay oyster beds. Granted in part and denied in part.
Denied as to a State Police report under ORS 192.500(1)(c) (criminal investigatory information). Denied under ORS 192.500(2)(a) (preliminary intra-agency communications) as to a draft report before completion of the final report to the Fish and Wildlife Commission. Denied as to parts of other documents under ORS 192.500(2)(a), on grounds that disclosure would inhibit free and frank communication. Granted as to the major parts of those memos and all of several other memos, all preliminary intra-agency communications, after weighing the public interest in disclosure against the public interest in encouraging free and frank communications. It was concluded that disclosure of this material would not particularly inhibit such communications in the future.
August 30, 1982, John Palaia. Petition for an order requiring the Board of Parole to furnish a transcript of parole hearings. Denied, on grounds the board did not and cannot be required to prepare a transcript. The board will be required (upon request and payment of cost) to furnish a copy of its tape. (A penitentiary inmate cannot himself listen to the tape or be furnished a copy, under Corrections Division rules, but can presumably make arrangements to have a third party receive the tape and transcribe it.)
September 1, 1982, Mark W. Nelson. Petition for an order requiring the Department of Veterans' Affairs to make available: "A listing by name and address of all mortgage holders within the State of Oregon, in label form." We concluded that:
Names and addresses are personal information, but disclosure cannot be said to be an unreasonable invasion of privacy. The same information is freely available in any telephone book or city directory. * * *
* * * the department cannot be required to furnish the list in label form, but of course it may do so if that is convenient.
September 16, 1982, Lee Sherman-Stadius. Petition for an order requiring the Senior Services Division to disclose number and nature of complaints against foster homes and home care facilities for the elderly in Washington County, addresses of the facilities, names and addresses of their owners, and actions taken in response to the complaints.
ORS 410.610 to 410.700 provide ambiguously for confidentiality of such complaints, but it was concluded that under ORS 410.690(1) the only information meant to be confidential is the identity of complainants and of the elderly persons involved.
ORS 410.150 does not (as it seems) prohibit disclosure of all Senior Services Division records, but protects
applicants for and recipients of services. It governs cases in which identifiable persons apply for and receive direct services, and not cases in which the division is carrying out its general regulatory, supervisory, protective and administrative obligations.
January 12, 1984, John Snell. Petition for an order requiring the Oregon Racing Commission to disclose the income tax return of one applicant for a license and a one-page financial statement submitted by another applicant. Petition granted. The overriding public interest in disclosure of the relevant financial records of applicants for racing licenses outweighs the substantial invasion of privacy.
June 27, 1984, Douglas Harrison. Petition for an order requiring the Senior Services Division to disclose abuse report of a particular named victim. Generally, under ORS 410.610 to 410.700, abuse reports are subject to disclosure after deletion of the names of informants and of persons allegedly abused, as well as deletion of any additional information which would be exempt under ORS 192.500. In this case, however, since the report was requested by name, disclosure would reveal identifiable personal information. If such disclosure would result in an unreasonable invasion of privacy, the agency could decline to disclose it. Here, the particular report contained medical and other information of such a nature that public disclosure would be an unreasonable invasion of privacy. But, since the petition was filed on behalf of the person responsible for the elderly person's care, release of the requested information, in this situation, would not constitute an unreasonable invasion of privacy. Therefore, disclosure was ordered.
January 2, 1985, John Snell. Petition for an order requiring the Oregon Racing Commission to disclose personal financial statements submitted with an application for a racing license. Under ORS 192.500(2)(b), such financial information is "of a personal nature" and public disclosure of an individual's detailed financial statement is per se an unreasonable invasion of privacy. However, the public interest in knowing whether an applicant's net worth is adequate to successfully operate the track and in knowing an applicant's financial interests related to racing activities is strong enough to compel disclosure of that information.
May 16, 1985, Oregon State Board of Higher Education. Petition for an order requiring the Psychiatric Security Review Board (PSRB) to disclose names and crime convictions of persons within the jurisdiction of the PSRB and enrolled in state institutions of higher learning. The following information constituted public records: The fact that a person has been found not guilty by reason of mental disease or defect and placed under the jurisdiction of the PSRB, the fact that a person is within the custody of the PSRB, and the nature of the crime committed. Enrollment in a particular school arguably may be personal, but in any case, disclosure to the institution involved is not an invasion of privacy. We ordered the PSRB to furnish the information but stated that the PSRB is not required to allow the Board of Higher Education unrestricted access to the files.
June 12, 1985, Les Ruark. Petition for an order to the OSU Extension Service to disclose a "sign-up sheet" used to record attendance at a public forum on toxic waste disposal. We found that the requested information is clearly a public record and does not meet the necessary tests for exemption from disclosure. In particular, ORS 192.500(2)(c) did not apply. The information was voluntarily submitted, but is not of a type which "should reasonably be considered confidential," nor has the agency "obliged itself in good faith not to disclose the information."
April 4, 1986, Michael J. Martinis. Petition for an order requiring the Oregon State Police to "divulge the identity of the informant" who provided information to the State Police concerning a possible violation of law. Denied because ORS 40.275(2), incorporated into the Public Records Law in ORS 192.500(2)(h), expressly creates a privilege to refuse to disclose the identity of an informant in a criminal investigation, and the State Police invoked the privilege. The name of the informant was also confidential under ORS 192.500(1)(c) (criminal law investigation information), and ORS 192.500(2)(c) (information submitted in confidence to a public body.)
August 21, 1986, David R. Maier. Petition for an order requiring the Oregon Economic Development Department to disclose records relating to a specific Oregon Business Development Fund loan. Petition was denied in part and allowed in part. The requested documents contained financial information about a particular company and an individual personal financial statement of the president of the company. The individual financial statements were exempt from disclosure under the personal privacy exemption, ORS 192.500(2)(b). The other information was exempt in part, based on a document-by-document review, under the exemption for information submitted to a public body in confidence, ORS 192.500(2)(c), and as a trade secret, ORS 192.500(1)(b). Pursuant to ORS 192.500(3), the exempt material and nonexempt material in a document must be separated, and the nonexempt material disclosed. The legislature has subsequently codified an exemption for such records in ORS 192.502(15).
April 13, 1987, Chris Bristol. Petition for an order requiring the State Board of Higher Education and Portland State University to disclose university payroll records, including time sheets, relating to a particular student's employment as student body president. The petition was denied under ORS 192.496(4), exempting from disclosure "[s]tudent records required by state or federal law to be exempt from disclosure," and ORS 192.500(2)(g), exempting public records "the disclosure of which is prohibited by federal law or regulations." Under the Buckley Amendment to the federal Freedom of Information Act, 20 USC § 1232g, and federal regulations, the availability of federal funds to the university would be jeopardized if the university disclosed employment records relating to a student's employment in a position that can be filled only by a student. This provision sufficiently stated a prohibition on disclosure for purposes of the Public Records Law.
August 6, 1987, Lars Larson. Petition for an order requiring the Department of Human Resources (DHR) to disclose advertising materials and public opinion polls prepared by private advertising firms for use by DHR in the state's AIDS education campaign. The petition was denied because at the time of the request, the materials were compiled and owned by the private agencies, and state officials had not decided what materials would be used or recommended for use in the campaign. Therefore, at the time of the request, the materials were not public records. After the request, the state officers decided to use certain of the materials in the campaign. These particular materials then became public records subject to disclosure.
August 13, 1987, Bennett Hall and Chris Bristol. Petition for an order to require officials at Portland State University to make available purchase orders and departmental purchase requests relating to the purchase of furniture, appliances and other housewares for the residence of the University President. Petition denied as premature because university officials were in process of responding to initial request. Attorney General is not authorized to act on a public records petition until a state agency has denied a request for disclosure.
August 17, 1987, Leslie Zaitz. Petition for an order requiring the Children's Services Division (CSD) to disclose MacLaren School records and CSD records pertaining to five children. Denied in significant part, but allowed with respect to certain types of materials. The only information disclosed was that related to the administration of justice in the juvenile court system under ORS 419.567(5). See also State ex rel Oregonian v. Deiz, 289 Or 277, 613 P2d 23 (1980). The remainder of the information was exempt from disclosure under the Oregon Juvenile Code, ORS 419.567(1) and (2), relating to reports and other material on the history and prognosis of a child within juvenile court jurisdiction; the Public Records Law, ORS 192.496(4) and 192.500(2)(h), relating to school records and personal privacy; and the Education Law, relating to school records. The Juvenile Code exemption in ORS 419.567(2) prohibited direct and indirect disclosure of the exempted information. This included a prohibition against disclosing not only reports, but also the information contained in the reports and other information not contained in reports, relating to the child's history or prognosis.
August 17, 1987, Chris Mullman. Petition for an order requiring the Physical Therapy Licensing Board to disclose file material on a particular clinic, including investigatory information. Denied in part, but allowed with regard to some materials. The board maintained two files on the clinic, a licensing file and an investigation file. The licensing file was available for public inspection. The investigation file contained complaints and supporting documents, witness interview information and communications between the agency and its legal counsel in the Attorney General's office. The complaints were exempt from disclosure under ORS 688.230, even though that exemption was not expressly incorporated into the Public Records Law. The witness statements were exempt from disclosure under ORS 192.500(2)(c) as information submitted to a public body in confidence; and under ORS 192.500(2)(i), under which confidential records compiled by one public agency remain confidential when received by another public agency if considerations giving rise to the confidential nature of the records remain applicable. The communications between the agency and its legal counsel were exempt from disclosure under the attorney-client privilege, ORS 40.225, incorporated into the Public Records Law in ORS 192.500(2)(h). Portions of the investigatory files were not exempt, and pursuant to ORS 192.500(3) were separated and ordered disclosed.
September 28, 1987, Bill Hall, Dean Brickey and Mike Thorpe. Petition for an order requiring the Lincoln County Juvenile Court to disclose legal pleadings in a particular case. Denied because the records are exempt juvenile court records under ORS 419.567, an exemption incorporated into the Public Records Law under ORS 192.500(1)(h). Even though some or all of the requested documents already had been shown to one requester, there was no waiver of confidentiality because ORS 419.567(1) states that "the record of the case shall be withheld from public inspection." (Emphasis added.)
December 16, 1987, Steven Boyd. Petition for an order to require the Department of Corrections (department) to provide petitioner with copies of results of his medical test for AIDS antibodies. Petition denied because the department had complied with the Public Records Law by affording petitioner an opportunity to inspect his lab test and because physical possession of the record within the penitentiary would endanger prison security. Neither the Public Records Law nor ORS 179.505 confers upon an inmate an unfettered right to possess confidential medical records within a penal institution.
December 30, 1987, Patrick O'Neill. Petition for an order to require Oregon Health Sciences University (OHSU) to disclose a portion of a contract between OHSU and Blue Cross and Blue Shield of Oregon (BCBSO). Petition denied because the payment schedule in the OHSU/BCBSO preferred provider contract is within the scope of Oregon statutory definitions of trade secrets, and therefore also is within the trade secret exemption to the Public Records Law.
March 4, 1988, Board of Naturopathic Examiners. Letter of advice reconsidering prior order directing board to disclose license application. We concluded that the board must disclose an applicant's answers to questions whether the applicant has been convicted of a felony or misdemeanor and whether the applicant has been the subject of a complaint to or investigation by any state board that regulates the professional conduct of naturopaths. However, the board may withhold, as personal information, answers to questions pertaining to the applicant's drug or alcohol addiction, treatment for those conditions, psychiatric treatment and treatment for mental illness.
April 22, 1988, Robert Joondeph. Petition for an order compelling Oregon State Hospital to disclose incident or abuse reports or similar reports documenting an investigation of a patient suicide. Petition denied as the records are exempt under ORS 192.502(8), which incorporates two other state laws―ORS 179.505(2), which restricts disclosure of medical history and treatment records of patients at state institutional health care facilities, and ORS 41.675, which makes privileged certain information compiled by a health care facility for internal quality assurance purposes. Petitioner's association with Oregon Advocacy Center, which has special statutory access to certain records, does not equate to a public right to access to those records; under the Public Records Law, petitioner stands in the same shoes as any member of the public.
April 22, 1988, Peter Murphy. Petition for inspection of three of Portland State University's (PSU) accounts and the PSU Foundation's annual budgets for 1986-87 and 1987-88. Petition granted (except as to the budget for 1986-87 since none exists). Although the PSU Foundation is not a "public body" under the Public Records Law, its budget was prepared by, used and retained by PSU and was directly related to the activities of two state officials, performing functions in their official capacities. Accordingly, its budget, as well as PSU's accounts, are nonexempt "public records."
April 28, 1988, Paul Koberstein. Petition for an order to require Portland State University (PSU) to disclose a letter from the American Assembly of Collegiate Schools of Business to PSU regarding the accreditation of the PSU School of Business Administration. Petition granted because the letter is a public record and is not included within any exception to the Public Records Law. The letter is a public record since it is retained and used by PSU, a public body. The internal advisory communications, personal privacy and confidential information exemptions do not apply to this letter.
July 22, 1988, Robert Goffredi. Petition for an order directing Health Division to disclose death certificates, medical examiner's reports and autopsies. Petition denied. Right asserted under the Public Records Law is not right to discovery, and the pendency of a criminal prosecution neither adds or subtracts from the records request; a person filing a petition for a public records disclosure order under the Public Records Law stands in the same shoes of other members of the public. Records are exempt under ORS 192.502(8), which incorporates other state laws restricting inspection of medical examiner reports and autopsies, ORS 146.035, and death certificates, ORS 432.120. Those statutes do not include petitioner in the category of persons entitled to inspect or obtain copies of the records at issue.
August 12, 1988, Michael Dean. Petition for an order compelling disclosure of the identity of nonfinalist applicants for the position of Oregon Chancellor of Higher Education from the Oregon State System of Higher Education. Petition denied under the personal privacy and confidential information exemptions (ORS 192.502(2) and (3)).
September 2, 1988, Greg Smith. Petition for an order to require the Board of Nursing to disclose all board records regarding the circumstances of the death of a named patient and all records relating to any board actions regarding a named board licensee. Petition granted in part, denied in part. The information to which access was denied (report of possible violation of statutes regulating the nursing profession; name of the subject of the report; and name of the complainant) is confidential information under ORS 678.126(1) and applies not only to the physical document but to the information itself.
September 12, 1988, Peter O. Hansen. Petition for an order directing the Department of Insurance and Finance (department) to make available responses provided in a survey of workers' compensation claimants. The survey responses were exempt under ORS 192.502(3) as information submitted in confidence, not otherwise required by law, where such information should reasonably be considered confidential, and the department obliged itself not to disclose information provided in response to the survey except in the form of composite statistics. Disclosure of the requested survey responses would harm the public interest because future respondents would not provide candid responses in subsequent surveys, and the department would not be able to obtain accurate information from which to formulate public policy. The department was not required to identify and provide to petitioner the survey responses belonging to petitioner's clients when the responses did not reference the client's attorney.
October 21, 1988, Charles L. Best. Petition for an order compelling disclosure of records and documents prepared by the Public Utility Commission (PUC) staff for a pending contested case proceeding. We denied the petition as to portions of records containing "frank and uninhibited subject comments" of PUC staff and legal counsel with respect to the utility in the pending case. "Disclosure of the records would deter [PUC] employees from giving frank and uninhibited opinions, evaluations, reports and recommendations to their colleagues, supervisors and the commission. * * * [D]isclosure thus would interfere with the free flow and exchange of information and ideas which the PUC needs for the proper discharge of its regulatory responsibilities." The public interest in encouraging frank communications clearly outweighed the public interest in disclosure. Accordingly, the nonfactual portions of the records were exempt internal advisory communications, ORS 192.502(1). Additionally, some memoranda were confidential communications sent by the PUC staff to its counsel and vice versa, which fell under the attorney-client privilege, ORS 40.225. That privilege is incorporated in the Public Records Law by ORS 192.502(8).
November 8, 1988, F. Douglass Harcleroad. Petition by Lane County District Attorney for an order compelling the State Court Administrator to disclose two types of documents: (1) "page two of the Security Release Questionnaire and Financial Statement" for all Lane County criminal defendants "who execute such a document for the purpose of reviewing release or requesting a court appointed attorney" and (2) the "jury register" for the Lane County Circuit and District Courts.
We denied the petition for blanket disclosure of the financial statement. The personal financial information in the questionnaire was "information of a personal nature" within the meaning of ORS 192.502(2). To be entitled to disclosure of that information, a requester must clearly and convincingly show that disclosure would not unreasonably invade the privacy of the applicant and that the public interest requires disclosure in the particular instance. The requester sought the information because his office was in a special position to check the accuracy of the financial statement, and thus detect fraud in applications for court-appointed counsel. Because of the particularized inquiry required by ORS 192.502(2), however, blanket disclosure of that information for all defendants was not required. Rather, the requester could satisfy the statute by showing, for instance, that he reasonably suspects that a specific defendant has assets that would make him or her financially ineligible for appointed counsel.
We also noted that the court administrator could voluntarily provide these documents to the district attorney. To the extent the documents are exempt in the court administrator's hands, they would remain exempt while in the district attorney's possession pursuant to ORS 192.502(9), the exemption for transferred records.
We also concluded that the district attorney was entitled to the "jury register," but not to the "term jury list."
November 17, 1988, Max Rae. Petition for an order compelling the Oregon Department of Transportation (ODOT) to disclose notes of all interviews in the investigation file concerning a complaint of sexual harassment and discrimination. We ordered disclosure, concluding that the documents did not fall within the exemption for information submitted in confidence. Specifically, despite the ODOT investigator's assurance of confidentiality at the start of each interview, we could not determine that the employees actually submitted the information in reliance on that assurance. The exemption, therefore, did not apply.
November 18, 1988, Roger F. Dierking. Petition for an order directing the Adult and Family Services Division (AFSD) to disclose the name and address of obligors in the Oregon Child Support Program. Petition denied. Because redisclosure of obligors' addresses obtained form the Internal Revenue Service (IRS) or the Oregon Department of Revenue (DOR) was prohibited by 26 USC § 6103(p)(4) and ORS 314.835, respectively, this information was exempt from disclosure under ORS 192.502(7) and ORS 192.502(8). Although some of the information may not have been obtained from either the IRS or DOR, the AFSD records do not indicate the source of the information. When nonexempt information cannot be separated from the exempt information, all of the information must be considered exempt.
December 22, 1988, Lars Larson. Petition for an order compelling Multnomah County Circuit Court and its employees to disclose videotapes recording conduct of pretrial proceedings in circuit court. These tapes were made by or on behalf of the Oregon Trial Lawyers' Association pursuant to authorization given by Circuit Court Judge Haas under Canon 3A.(7)(c) of the Code of Judicial Conduct. We concluded that because Judge Haas, an elected official, claimed the right to withhold disclosure of those tapes, ORS 192.480 required the Attorney General to decline to consider the petition. (To the same effect, see Public Records Order, February 1, 1989 (Larson).)
December 23, 1988, Aaron N. Eastlund. Petition for an order compelling the Motor Vehicles Division (MVD) to disclose records relating to the function of programs used by MVD on the Oregon Department of Transportation computer. We denied the petition. First, to satisfy the request the agency would have to create a new record by collating and cross-referencing specific pieces of information stored in the computer. The Public Records Law does not require an agency to do so. Second, the information was exempt because disclosure would permit unauthorized access to the computer. See ORS 192.501(16). No public interest required disclosure in the particular instance.
January 20, 1989, Greg Needham and Roger Edgington. Petition for an order directing Portland State University (PSU) to disclose records of arrests and reports of crimes occurring on campus and maintained in the PSU daily security log. Petition granted in part, denied in part. State law prohibits a school from releasing information relating to a student, and federal law prohibits a college receiving federal funds from releasing such information. ORS 192.496(4) exempts from disclosure student records required by state or federal law to be exempt from disclosure. Consequently, PSU's practice of disclosing edited copies of the daily security log only after deleting confidential student information complies with the Public Records Law.
January 24, 1989, Bonnie Wilson and Eleanor J. Parsons. Petition for an order directing the Board of Psychologist Examiners (board) to provide copies of petitioner's answers to an oral examination administered by board. Petition granted. The board allowed petitioner to listen to tape recordings of the examination but refused to provide petitioner with a copy of the portions of the tapes containing her answers. The test questions were conditionally exempt from disclosure under ORS 192.501(4) because the board periodically reuses some of the test questions in later administrations of the test. However, the exemption did not cover petitioner's oral examination answers because the board failed to establish that disclosure of the answers would threaten the integrity of the examination by indirectly revealing the questions.
February 1, 1989, Lars K. Larson. Petition for an order directing the Multnomah County Trial Court Administrator to make available exhibits made a part of the official court record during a bail hearing. The judge claimed the right to withhold disclosure of the requested exhibits to minimize pretrial publicity and to protect the defendants' constitutional right to a fair trial. ORS 192.480 requires the Attorney General to decline to consider a petition to disclose a public record when an elected official claims the right to withhold the record from public disclosure regardless of whether that official has custody of the record.
February 24, 1989, Richard A. Weill. Petition for an order compelling Department of Revenue (DOR) to disclose a copy of a proposed opinion and order in a pending taxpayer appeal. The proposed opinion and order contained a tentative recommendation by the hearing officer on a suggested DOR policy change. We granted the petition. The document satisfied four elements of the internal advisory communications exemption. However, DOR already had disclosed to the requester documents that discuss the proposed order in some detail. That disclosure undermined the public interest in the confidentiality of the proposed opinion and order, which otherwise might justify routine nondisclosure of proposed orders recommending policy changes. Therefore, the document was not exempt from disclosure.
March 9, 1989, George Smith. Petition to obtain public records "at a reasonable charge." Denied for lack of jurisdiction. When a public body's fees comply with the "actual cost" provisions of ORS 192.440(2), there is no basis for Attorney General to intervene.
March 28, 1989, Dorothy Clark and Anthony M. Chapman. Petition for an order directing Oregon State Hospital (OSH) to disclose diagnostic records, reports of psychiatric treatment and all medical records on petitioner. Petition conditionally granted. ORS 179.505, incorporated into the Public Records Law through ORS 192.502(8), prohibits disclosure of medical and psychiatric records unless the specified conditions for disclosure are met. Thus, OSH must produce a copy of the requested records to the petitioner only after OSH receives a properly signed consent of release form.
March 30, 1989, Thomas C. Howser. Petition for an order compelling the Oregon State Bar (OSB) to disclose documents compiled in the course of OSB's pending disciplinary proceeding concerning David H. Leonard. We granted the petition in part and denied it in part.
We concluded that several documents fell within the internal advisory communications exemption, ORS 192.502(1). These documents contain analysis and recommendations by the Local Professional Responsibility Committee (OPRC), the OSB's Assistant General Counsel and Disciplinary Counsel of the charges against Mr. Leonard. All of those portions satisfied the first three elements of the exemption. The issue was whether "the public interest in encouraging frank communication between officials and employees of public bodies clearly outweighs the public interest in disclosure."
We concluded that, in a pending disciplinary proceeding against an attorney,
the OSB's ability properly to discharge its disciplinary responsibilities would be substantially prejudiced by disclosure of the portions of the requested documents containing analysis of the charges against Mr. Leonard and recommendations on the disposition of those charges. The public interest in allowing the LPRC, SPRB, and Disciplinary Counsel to exchange frank comments and recommendations concerning proposed disciplinary action would be significantly undermined if Mr. Leonard could obtain access to these candid analyses, strategies and recommendations during the pendency of the disciplinary proceeding.
We also concluded that the public interest in disclosure was clearly outweighed by the public interest in encouraging frank communication among the various arms of the OSB to effectuate the OSB's accomplishment of its disciplinary responsibilities.
Finally, two of the documents in question were covered by the attorney-client privilege and, therefore, were found exempt from disclosure.
April 3, 1989, Douglas A. Harrison. Petition for an order directing the Motor Vehicles Division to release information on individual involved in automobile accident. Petition denied as to medical information, but granted as to physician reports and driver medical certification forms to extent medical information is deleted. Because disclosure of personal medical records is an unreasonable invasion of privacy, the records are exempt under ORS 192.502(2) unless the public interest requires disclosure, which it does not in this case. The physician-patient privilege under ORS 40.235 does not apply to physician reports and driver certification forms submitted at request of driver pursuant to ORS 807.090 because such reports are intended to be distributed to third parties.
April 7, 1989, Darrell Martin. Petition for an order directing Oregon State University (OSU) officials to disclose OSU School of Education's administrative rules, department procedures and printed job descriptions was denied as premature. An agency's noncompliance with a request that is not sufficiently specific does not constitute a denial to produce public records. An agency may require additional specificity in the request and ask that the requester prepay anticipated costs necessary to fulfill the request.
May 2, 1989, Marvieta Redding and Nickolas Facaros. Petition for an order directing Department of Agriculture (department) to release records on the fungicide Tilt. Petition granted in part and denied in part. The requested documents contained FDA law enforcement investigation records for which the petition was denied under ORS 192.502(7), which exempts "information the disclosure of which is prohibited by federal law or regulations." 21 CFR § 20.64(d)(1) and 21 CFR § 20.84 prohibit disclosure of FDA law enforcement investigation records contained in department files until the federal case is closed or until the FDA Commissioner authorizes disclosure. Copies of federal district court pleadings are not part of the FDA law enforcement investigation records and must be disclosed.
May 9, 1989, Paul R. Hribernick. Petition for an order compelling the Economic Development Department (EDD) to disclose records related to a proposed Precision Castparts Corporation plant and facility. EDD had not yet refused disclosure, but instead had asked the Attorney General to review the records and advise it whether the records must be disclosed. The agency thereby had acted reasonably and in compliance with the Public Records Law. See ORS 192.430 (custodian of public records "shall furnish proper and reasonable opportunities for inspection and examination" of records in its custody). EDD's failure to comply with the deadline that the requester sought to impose did not constitute an actual or constructive denial. Because there was no denial, the petition to the Attorney General was premature and was denied.
July 7, 1989, P. Scott McCleery. Petition for an order directing Oregon State University (OSU) to disclose records prepared under the direction of an OSU instructor and generated from interviews with particular subjects. Petition denied. The interview and data records were prepared as a result of a research project at OSU. Although preliminary results of the project had been released, research was continuing and the instructor planned subsequent publications. The requested records were exempt under ORS 192.501(12) so as to ensure protection of the instructor's research ideas and data until publicly released, copyrighted or patented. The public interest did not require disclosure in this instance.
July 7, 1989, Randall Baker. Petition for an order directing disclosure of records was denied where the requester failed to comply with the agency's administrative rules governing requests for public records. ORS 192.430 provides that the custodian of records may make reasonable rules and regulations necessary for the protection of records and to prevent interference with the regular discharge of duties of the custodian. Agency rules requiring that requests for public records be in writing and identify specific documents requested were reasonable under ORS 192.430.
July 14, 1989, David A. Rhoten. Petition for an order directing the Department of Insurance and Finance to disclose actual unabridged quotations from employee interviews for the Evaluation Section study. Petition denied. The records were exempt from disclosure under ORS 192.502(3) because the information was voluntarily submitted in confidence, not otherwise required by law, and should reasonably be considered confidential. Disclosure would undermine the integrity of the review process and of management of the personnel who were promised confidentiality. Disclosure could also subject staff members who provided interview responses to possible recriminations, thereby undermining agency morale and the ability of agency employees to work in a cooperative effort. Disclosure of the unabridged responses provided during interviews, even in unattributed form, would not adequately protect the identity of the participants.
December 7, 1989, Steven C. Baldwin. Petition for an order to Oregon Health Sciences University (OHSU) requiring disclosure of fee schedules and price lists provided to OHSU by unsuccessful bidders on OHSU's RFP #17. Petition denied on basis of ORS 192.501(2) (trade secrets exemption) and ORS 646.461(4) (Uniform Trade Secrets Act), which is incorporated into ORS 192.502(8).
The pricing information has commercial value; knowledge of such information would economically benefit competitors; the companies take reasonable efforts to maintain the information's secrecy; and disclosure could put the companies at a competitive disadvantage.
The public interest would be harmed by disclosure. Access to these records would not aid the public in monitoring OHSU's adherence to the RFP process. Disclosure would harm OHSU's ability to attract bidders, thereby increasing costs to the public.
January 12, 1990, Susan G. Bischoff. Petition for an order to Oregon Department of Corrections requiring disclosure of records relating to a complaint of sexual harassment in the workplace.
On November 7, 1989, a notice of tort claim was filed against the state. The filing of notice of tort claim indicates that litigation is reasonably likely to occur. Thus, records compiled or collected and interviews conducted after the date the state received the notice are exempted from public disclosure under ORS 192.501(1)(a) (records pertaining to litigation exemption). The availability of discovery negates any need to use the Public Records Law to gain access to these records.
The personnel discipline action involved is not completed. An agency may postpone action on the public records request until the personnel matter is finally resolved. If there is a disciplinary sanction, the records will be exempt under ORS 192.501(13) (personnel discipline action exemption); if there is no disciplinary sanction, the records will not be exempt.
April 12, 1990, Robin E. Bower and Marcus A. Petterson. Petition for an order to Motor Vehicles Division (MVD) requiring disclosure of records pertaining to the decision by MVD that petitioner retake the driver license examination to determine his ability to operate a motor vehicle. Petition granted.
The information is generally exempt from public disclosure under ORS 192.502(3) as information submitted to a public body in confidence. However, public interest could suffer by nondisclosure in this type of case when the information was submitted to MVD solely with an intent to harass and petitioner was an otherwise competent driver. By disclosure, such vindictive and false reports will be discouraged, the driver is saved the time and expense of retesting, and the agency can better allocate its limited resources to retesting truly unsafe drivers. Because public interest would not suffer by disclosure, ORS 192.502(3) does not exempt these records from public disclosure.
May 31, 1990, John Heilman and J.S. Boles. Petition for an order requiring Adult and Family Services (AFS) to disclose the names and addresses of employees of the Albina Branch of AFS. Granted in part and denied in part.
The release of names of public employees does not constitute an unreasonable invasion of privacy. See Guard Publishing Co. v. Lane County School District, 96 Or App 463, 467, 774 P2d 494 (1989), rev'd on other grounds 310 Or 32, 791 P2d 854 (1990). The names, therefore, must be disclosed.
ORS 192.502(2) exempts the employees' addresses from disclosure as personal information if disclosure would constitute an unreasonable invasion of privacy. Facts show that the party requesting disclosure does so solely for the purpose of harassment, which is plainly an unreasonable invasion of privacy and contrary to public policy. The addresses are, therefore, exempt from disclosure under ORS 192.502(2).
June 8, 1990, Frank A. Madrid. Petition for an order requiring Risk Management Division to disclose report prepared relating to tort claim. Petition denied on basis of ORS 192.501(1) (records pertaining to litigation exemption). On October 18, 1989, petitioner filed a notice of tort claim against the state. The filing of this notice indicates litigation is reasonably likely to occur. The report requested was prepared in response to that notice. Thus, it is a record pertaining to litigation and exempt under ORS 192.501(1). The private interest in the report does not qualify as a public interest weighty enough to override the exemption.
October 2, 1990, Myron B. Katz and Harry Esteve. Petition for an order compelling the Public Utility Commission (PUC) to disclose a copy of the draft report by the PUC and Oregon Department of Energy on the "dollar costs of an early shutdown of the Trojan Nuclear Power Plant." Petition granted. The draft report is plainly a public record, for which the only arguably applicable exemption is ORS 192.502(1), the exemption for internal advisory communications. Under this exemption, a public record is exempt from disclosure if four elements are satisfied. Here, the first three elements are satisfied: the communication is within a public body, it is of an advisory nature preliminary to an agency final action, and it covers other than purely factual materials.
The issue remains as to whether in this particular instance the public interest in encouraging frank communication between officials and employees of public bodies clearly outweighs the public interest in disclosure. In this case, it does not. The final report has already been released to the public. The final report and the draft differ in content, but neither agency has explained how revealing any of these differences could cause public harm. Also, the report concerns economic effects of a controversial ballot measure, raising public interest in disclosure. Because the public interest in disclosure outweighs the public interest in nondisclosure, the draft is not exempt under ORS 192.502(1).
November 26, 1990, Linda Nealy and Dave Hogan. Petition for an order requiring Motor Vehicles Division (MVD) to disclose records relating to the suspension or termination of a named MVD employee. Petition granted. ORS 192.501(13) exempts records of a personnel discipline action from public disclosure unless the public interest requires disclosure in the particular instance. Here, a public employee was criminally charged with misusing a public office for financial gain and in furtherance of a criminal conspiracy. The public has a strong interest in knowing how MVD handled the matter. Also, the information sought substantially overlaps what has already been made public. Public interest requires disclosure in this particular instance.
April 2, 1991, Jim Adams and Chris Williamson. Petition for an order requiring Josephine County Circuit Court and trial court administrator to disclose names, addresses and telephone numbers of jurors in a particular case. Petition granted. The jurors' names have been spoken in open court, and thus, cannot be considered confidential. ORS 192.502(2) does not exempt the jurors' addresses and telephone numbers from disclosure for two reasons. First, a blanket policy by the court keeping the information confidential is invalid. Guard Publishing Co. v. Lane County School District, 310 Or 32, 37, 791 P2d 854 (1990). Second, there are no facts suggesting disclosure would constitute an unreasonable invasion of privacy. In particular instances, the release of this type of information may unreasonably invade the privacy of particular jurors. However, the facts in this case do not justify the blanket denial of access.
July 1, 1991, Kristine M. Juul. Denied under ORS 192.502(3) a petition for an order to disclose portions of minutes and supporting materials of an advisory group to the Department of Insurance and Finance charged with making proposals for reform of the Oregon Workers' Compensation Law. The group was made up primarily of labor and management representatives who were assured by the department that the contents of the meetings would be kept confidential. We concluded that the public interest would suffer by disclosure because disclosure would discourage similar efforts to bring together persons with competing interests to negotiate sensitive issues of public interest. Our conclusion was reinforced by the fact that most of the working documents of the committee were disclosed as well as the final report and findings of the committee.
July 8, 1991, Jim Marr and Don Rees. Petition for an order compelling Children's Services Division (CSD) to waive all fees for public records requested, on ground that release of records is in the public interest pursuant to ORS 192.440(4). Petition denied. CSD waived part, but not all, of its fee. CSD's denial of a complete waiver was not unreasonable. ORS 192.440(4) permits an agency merely to reduce, rather than entirely waive, its fee. Potential financial hardship on an agency that would arise from granting a fee waiver is pertinent to the reasonableness of the agency's decision. Here, in view of CSD's substantial costs in complying with the requests, its decision not to seek reimbursement for certain of its recoverable costs, and its agreement to further reduce its fee by over 25 percent, the denial of a complete fee waiver was not unreasonable.
August 1, 1991, Lars Larson. Petition for review of the Marion County Trial Court Administrator's denial of request for a complete waiver of fees under the Oregon Public Records Law. A request for public records that will benefit the general public does not necessarily entitle an individual to a complete waiver as a matter of law. ORS 192.440(4) gives the agency discretion to reduce, rather than entirely waive the fee. Since the Oregon fee waiver provision is modeled after the Freedom of Information Act, before the 1986 amendments, guidance is obtained by looking at federal courts which use an arbitrary and capricious standard of review. A reduction of fees to only copying costs rather than a complete fee waiver on a substantial and nonroutine request is neither arbitrary nor capricious.
December 23, 1991, Steve Mayes. Petition for an order directing the Oregon State Treasury (OST) to disclose records relating to loans, loan service reports and documents prepared by Tony Canby briefing senior OST officials on OST's real estate investment activities. Petition denied. A public body does not deny a request for disclosure when it takes time to consult with legal counsel about its legal duty to disclose requested records. The petition was denied as to OST loan records and loan service reports because OST had not denied the records request and had agreed to disclose nonexempt records upon completion of the file review. The requested reports prepared by Tony Canby were exempt from disclosure under ORS 192.501(3) because such documents were compiled from OST files by the Criminal Justice Division as part of an ongoing criminal investigation into the activities of Mr. Canby.
January 27, 1992, Robert Moody. Petition for an order requiring the Oregon State Police (OSP) to make available disciplinary actions taken by OSP against two law enforcement officers for federal game law violations. Petition granted. ORS 192.501(13) exempts records of a personnel disciplinary action from public disclosure unless the public interest requires disclosure in the particular instance. In this instance, four facts increase the public interest in disclosure and decrease the employees' privacy expectations: the employees are law enforcement officers with supervisory responsibilities; the basis for the discipline resulted in criminal prosecution and sanction; the criminal proceedings are completed; and the criminal allegations and disposition were made public. The public interest in knowing how OSP deals with criminal offenses committed by its supervisory law enforcement officers requires disclosure.
February 25, 1992, Lex Loeb. Petition for an order requiring the Columbia River Gorge Commission (commission) to make available certain records in the commission's custody. Petition denied because the commission, governed by federal law and an interstate compact, was not a "public body" subject to the Public Records Law.
March 27, 1992, Dwight Leighty and Peg Ralston. Petition for an order directing the Public Utility Commission (PUC) to produce copies of records that would reveal the gross pay of PUC employee, years that employee worked for the PUC and whether the employee provided insurance to a minor child through a payroll deduction. Petition granted in part and denied in part. The information sought was of a personal nature. The public has an interest, however, in knowing the amount of compensation provided to public employees and their length of service. Moreover, public employees have a reasonable expectation that personnel information such as salary and term of employment could be subject to public scrutiny. Consequently, disclosure of such information for a public employee did not constitute an unreasonable invasion of privacy (i.e., highly offensive to an ordinary person). Nevertheless, there is no legitimate public interest in knowing how a public employee spends a paycheck, and petitioner articulated no overriding public interest that required disclosure in this particular instance. Consequently, the insurance information was exempt from disclosure under ORS 192.502(2), the personal privacy exemption.
July 28, 1992, Reba Owen and Joan Fraser. Petition for an order directing the Children's Services Division (CSD) to provide copies of CSD performance evaluations for CSD supervisors and the scoring methodology. Petition granted in part and denied in part. Generally, employee evaluations are information of a personal nature, the disclosure of which would be an invasion of privacy. Because of the type of responsibility that a CSD social service supervisor has involving the care and protection of children, however, the public has a substantial interest in knowing how these individuals as a class are performing their public duties. Weighing that interest against the competing concerns of obtaining candid assessments of employees' strengths and weaknesses, we concluded that the evaluations should be released without the names or other identifying materials. Any personal information not directly related to job performance should also be redacted as exempt under ORS 192.502(2), the personal privacy exemption. The methodology used by CSD in completing its evaluations must be disclosed.
December 11, 1992, Bruce Smith. Petition for an order compelling the Oregon Department of Human Services, Office of Alcohol and Drug Abuse Programs (Department) to make available individual school and class survey results. The Office of Alcohol and Drug Abuse Programs contracts with an independent contractor to conduct a statewide alcohol and drug survey. The individual school results are not prepared, used or retained by the office; however, the office owns the individual school reports since the contract requires the independent contractor to prepare those reports and states that all work products resulting from the contract are the exclusive property of the Department. Although the individual school reports are public records, they are exempt from disclosure under ORS 192.502(3) in that they are the product of information submitted to a public body in confidence and not otherwise required by law to be submitted, such information should reasonably be considered confidential, the public body obliged itself in good faith not to disclose the information, and the public interest would suffer by the disclosure.
January 26, 1993, Joanna Patten. Denied petition for disclosure of redacted information from a security audit conducted by the Department of Corrections after the escape of a prisoner from the Oregon State Penitentiary. The audit contained information about security practices and procedures in the prison. Knowledge of this information by inmates or their confederates could "substantially prejudice or prevent" the department from operating a secure prison. ORS 192.502(4).
April 19, 1993, Joseph M. Charter. Petition for an order compelling SAIF to disclose documents relating to claims history, experience rating and cost of individual claims of Timberline Products Co. Petition denied based on the exemption for employer account records under ORS 672.702. After reviewing the legislative history of ORS 672.702, we concluded the legislature intended not to require SAIF to disclose employer-related documents that would place SAIF at a competitive disadvantage with other private carriers. Without determining the exact parameters of the term "employer account records," we concluded that employers would hesitate to insure with SAIF if SAIF were required to disclose employer records of this type, and the records are therefore exempt from disclosure. ORS 192.502(8).
April 29, 1993, Mark Haas. Petition for an order compelling the Executive Department to disclose records pertaining to the termination of three high level management officials. Petition denied. ORS 192.501(13) exempts records of a personnel discipline action unless the public interest requires disclosure in the particular instance. Here, public interest does not require disclosure. These employees were not dismissed as a result of a criminal investigation or for reasons that resulted in criminal prosecution and sanction. Further, the reasons for this disciplinary action have not been made public. There is no overriding public interest in depriving these former state employees of their privacy surrounding the reasons for their discipline.
May 19, 1993, Bruce E. Smith. Petition for an order requiring a complete fee waiver or substantial reduction in the fees assessed by the Children's Services Division (CSD) in responding to two record requests. Petition denied. CSD did not unreasonably deny the fee waiver or reduction. There is a public interest in the subject of the request. However, there has been no showing that the fee requirements inhibited the requester's ability to request or use the records sought. Investigative reporters are not automatically entitled to a complete fee waiver or substantial reduction in fees. The public interest, here, was not hindered by CSD's request for prepayment of fees, nor by its denial of waiver or reduction. The public also has an interest in reimbursement of CSD's actual costs. The request involved substantial time and expense for CSD. The requested records were voluminous. It was necessary to segregate exempt from nonexempt materials. The nonexempt portions of the files were made available and requester was allowed to copy them at her own expense. CSD's decision to reduce its fees by $170.13 instead of granting a waiver was not "unreasonable."
June 22, 1993, Mark Lear and Andrew Hyman. Petition for an order directing the Oregon Department of Forestry (ODF) to make available the completed marbled murrelet survey forms for three specific locations. Petition denied. The records are exempt from disclosure by ORS 192.501(14) unless the public interest requires disclosure in the particular instance.
Assurances that the records will not be publicized does not require ODF to disclose the records. ODF does not have any way to enforce such stipulations, nor does it have any way to evaluate the reliability of such promises. The policy behind ORS 192.501(14) is to protect endangered and threatened species. Once the location of such a species is disclosed, it is nearly impossible to protect it from disturbance or harm because ODF cannot control how or to whom the information is disseminated. Murrelets are unusually shy and easily disturbed, and many Oregon residents resent the birds' protected status. Public interest does not require disclosure because of the requester's intention to contribute to the public discussion on this important topic. Nondisclosure is essential to carry out the statutory policy. Thus, the public interest does not require disclosure in this instance.
February 7, 1994, Bruce Smith. Petition for an order requiring Mental Health and Developmental Disability Services Division to disclose medical records of patients who died at Dammasch State Hospital. Petition denied on basis of ORS 192.502(8), which incorporates ORS 40.230 (psychotherapist-patient privilege) and ORS 40.235 (physician-patient privilege). There are three elements for these privileges to apply: (1) the communication must be confidential, i.e., not intended to be disclosed to third persons, (2) the communication must be for purposes of diagnosis or treatment, and (3) the communication must be among the patient, the patient's psychotherapist (or physician) or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist (or physician). The medical records at issue meet each element.
These privileges survive the death of the patient, unless waived by the personal representative. Because there was no waiver in this case, the records are exempt from disclosure under ORS 192.502(8). However, ORS 192.495 provides that records that are more than 25 years old "shall be available for inspection," notwithstanding ORS 192.501 to 192.505. Accordingly, the exemption in ORS 192.502(8) does not apply to medical records of deceased patients that are more than 25 years old. If the records contain any material older than 25 years, that material must be segregated and disclosed.
May 4, 1994, Frank Dixon. Petition for review of denial of fee waiver by Oregon Health Sciences University (OHSU) in responding to a public records request was denied. ORS 192.440(2) authorizes a public agency to establish fees to reimburse it for actual costs in making records available. The decision to waive those fees is discretionary upon a determination by the public agency that the waiver or reduction is in the public interest. ORS 192.440(4). One basis for a fee waiver is a demonstrated ability of the requester to disseminate the requested information to the general public. OHSU's determination that the requester exhibited a diminished involvement in public disclosure and education and appeared to have insufficient funds to broadly disseminate the information sought were reasonable grounds for denial of a complete fee waiver.
May 5, 1994, Connie Wright. Petition for an order directing the Eastern Oregon Correction Institution to produce for inspection records relating the date, hours and type of leave taken by security staff. The leave information is not exempt from disclosure under ORS 192.502(2). Although the information is of a "personal nature," it is not the type of information that an ordinary reasonable person would deem highly offensive to disclose as, generally, an individual's coworkers are aware of the general reason that an employee is off from work and the length of time that he or she is gone. The petitioner does not seek records documenting the reasons for the particular type of leave taken, such as the reasons why an individual took sick leave. The terms of a contractual agreement entered into by the state cannot override the legislative mandate in the Public Records Law that any person has a right to inspect any public record, except as expressly exempt from disclosure.
May 25, 1994, Pamela A. Mattson and David Laine. Petition for an order directing the Employment Department to make available the job performance evaluation of the manager of its Tillamook office. Petition granted. ORS 192.502(2) exempts information of a personal nature if public disclosure would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure. The job performance evaluation contains information of a personal nature, and disclosure would constitute an unreasonable invasion of privacy. However, the public interest that citizens have in knowing how public employees are performing their duties requires disclosure in this particular instance. The public interest in the proper job performance of the manager of a branch office is over and above any interest the public might have in knowing how well a rank and file employee performs his or her job. Although disclosure of any less than positive comments might be embarrassing to the manager, the Public Records Law does not provide an exemption to avoid embarrassment for public officials except when a disciplinary sanction has been imposed (see ORS 192.502(13)), which is not the case here. The Employment Department must disclose the performance evaluation, except for two items that are not related to job performance, but describe the manager's personal aspirational goals.
December 2, 1994, Timothy M. Parks. Petition for an order directing the Oregon Department of Transportation (ODOT) to make available an appraisal obtained by ODOT relating to property subject to a condemnation proceeding that has been settled. Petition denied. ORS 192.501(6) exempts from disclosure information "relating to the appraisal of real estate prior to its acquisition." Although one parcel has already been acquired by ODOT, the appraisal analysis and conclusion information contained in the report relate to other parcels of real estate yet to be acquired by ODOT. The agency will segregate and disclose any nonexempt information.
April 3, 1995, Lars Larson. Petition for production of documents relating to a disciplinary matter was denied as premature. ORS 192.501(13) conditionally exempts records of a personnel discipline action. This exemption covers only completed actions. When an individual seeks records concerning a disciplinary action not yet complete, an agency may postpone action on the request until the matter is resolved. The agency's reasonable time to respond to the request also includes the time needed to consult with legal counsel about the disclosure of records that appear to be exempt in whole or in part.
April 14, 1995, Steve Mayes. Petition for an order directing the Children's Services Division (CSD) to produce a list of employees involved in the Whitehead case and disciplinary action records against those employees. Disclosure of the employee names did not constitute an unreasonable invasion of privacy, despite a request by individual employees not to have their identities disclosed to the media, because disclosure would not likely lead to harassment or physical harm of individuals named on the list. ORS 192.501(13) exempts from disclosure records relating to a disciplinary action and materials supporting that action when the employee receives a sanction. Although the Whitehead case was widely publicized, the disciplinary records requested by petitioner were routine discipline matters. CSD's general disclosure of the sanctions imposed against the employees satisfies the public interest in this case while protecting public employees from ridicule. Consequently, the requested materials were exempt from disclosure.
June 19, 1995, Sheri A. Speede. Petition for an order directing Oregon Health Sciences University to make available the videotapes that served as data for an article on rhesus monkey behavior published in Physiology and Behavior. Petition denied. ORS 192.501(15) exempts faculty research from disclosure "until publicly released." The videotapes are "writings" as that term is defined in the Public Records Law, ORS 192.410(6). Although some preliminary results of the research project have been publicly released, the faculty member plans to analyze the data contained on the videotapes for more research on related issues. Premature disclosure of faculty research would have a chilling effect on faculty publications and permit "piracy" of research data. Because the research project is still in progress, and further research and publication is planned, the videotapes are exempt from disclosure, unless the public interest requires disclosure.
The petitioner asserts a public interest in disclosure because of the public concern over the humane treatment of animals, the controversial conclusion of the researches, and the fact that the research is publicly funded. We do not find these assertions to compel disclosure. Research does not lose its exemption merely because it is scientifically or politically controversial. Nor is the exemption inapplicable because the research is publicly funded. The exemption only has relevance to public institutions, most of the research of which is publicly funded. Moreover, the public interest in the humane treatment of animals is safeguarded by university's Institutional Animal Care and Use Committee and the federal Animal Welfare Act. Thus, we conclude that the public interest does not require disclosure of the videotaped research data in this instance.
July 3, 1995, Daryl S. Garrettson. Petition for an order directing the Oregon State Police (OSP) to make available records pertaining to investigations into alleged misconduct by members of the OSP. Petition denied. Materials created by an assistant attorney general (AAG) in his capacity as attorney for OSP, including reports made by OSP officials at the request of the AAG for the purpose of rendering professional legal services are privileged under the attorney-client privilege, ORS 40.225, and thus exempt from disclosure under ORS 192.502(8). Because disciplinary sanctions were meted out to two officers based on the investigation and the remainder of the information supported that action, those records are exempt from disclosure under ORS 192.501(13). We find no overriding public interest in disclosure. A labor union's request for information of possible relevance to its duties as an exclusive representative is not a "public interest" under the Public Records Law. Portions of the requested records were also exempt under ORS 192.501(3) because they were compiled for criminal law purposes, the two-year statute of limitations for criminal prosecutions had not expired, and the Baker County District Attorney reserved possible criminal prosecution.
August 30, 1995, Spencer Heinz. Petition for an order directing the State Offices for Services of Children and Families to produce records relating to an investigation of alleged sexual misconduct by a child protective service worker. Petition denied. Because the requested information was compiled by the Baker County District Attorney (DA) for use in a criminal prosecution and the DA requested that the information not be disclosed until completion of the criminal prosecution, the information was exempt from disclosure under ORS 192.501(3). The public's interest in successful operation of the criminal justice system outweighs the public interest in disclosure of information that could jeopardize completion of a pending criminal prosecution.
November 22, 1995, Lars K. Larson. Petition for an order directing circuit court judge to make available for inspection and copying a videotape of a police sting admitted as evidence in a criminal trial. Petition denied. The judge claimed the right to withhold disclosure until completion of the trial. The Attorney General lacked jurisdiction to consider the petition under ORS 192.480 because the judge, although appointed to fill an unexpired term and not elected, still holds an elective office. In applying ORS 192.480, we look to the character of the office rather than the means by which the individual in that office was selected.
January 26, 1996, John E. Gutbezahl. Petition for an order directing the Oregon Department of Corrections (ODOC) to make available an agreement between ODOC and Denton County, Texas, for housing and care of ODOC inmates, including any provisions relating to ODOC's medical screening criteria. Petition denied. The provisions of the agreement described ODOC's medical screening process for transferred inmates was exempt from disclosure under ORS 192.502(4) because disclosure would jeopardize and substantially degrade ODOC's ability to implement an effective inmate transfer program. The provisions detailing the specific procedures employed by ODOC's health services staff to intervene when inmates participate in hunger strikes was similarly exempt because disclosure would substantially interfere with ODOC's ability to carry out its essential functions including management of inmate hunger strikes.
February 5, 1996, Kristine L. Wright. Petition for an order directing Oregon State Hospital to make available deceased patient's medical records. Petition denied. The requested records were within the scope of the psychotherapist-patient privilege, ORS 40.230, and the physician-patient privilege, ORS 40.235. Those privileges remain in effect after the patient's death unless waived by a personal representative of the patient's estate. Therefore, the records were exempt from disclosure under ORS 192.502(8).
May 10, 1996, John G. Kelley. Petition for an order directing the Driver and Motor Vehicle Services Division (DMV) to provide access to DMV's computer database via a dial-up modem or, in the alternative, a complete electronic copy of the computer database maintained by DMV. Petition denied. The custodian of records has a duty to ensure the security of public records, and DMV had no way to protect the records from modification or destruction should dial-up modem accesses be allowed to the computer records. Because DMV did not have the means to filter out the exempt information from the nonexempt in its electronic database, and thereby permit access only to the nonexempt information, all of the information had to be considered exempt.
September 9, 1996, Richard Coreson and Justice Burns. Petition for an order directing the Oregon Department of Fish and Wildlife (ODFW) to make available telephone numbers of hunting and fishing licensees. Petition granted. Although a person's home telephone number is "personal" information, the determination of whether disclosure of such numbers would constitute an unreasonable invasion of privacy (i.e., highly offensive to an ordinary reasonable person) must be made on a case-by-case under ORS 192.502(2). ODFW may not have a blanket policy of nondisclosure; the requested telephone numbers must be disclosed except for numbers of individuals determined exempt from disclosure under the personal safety exemption provided under ORS 192.445.
September 18, 1996, Larry Tuttle. Petition for review of decisions by the Department of Geology and Mineral Industries (DOGAMI) on fee waiver and records request. Although DOGAMI found that the "public interest" standard of ORS 192.440(4) was met, the agency concluded, under authority granted by ORS 192.440(4), that its budget and staffing levels did not allow it to grant a complete waiver due to the size and complexity of the records request. As to request for documents relating to other fee waivers granted by DOGAMI, the agency did not maintain such documents, and the Public Records Law does not require agencies to create records.
September 27, 1996, Tony Davis and Dave White. Petition for an order directing the Department of Administrative Services (DAS) to provide the state's report showing the most recent forecast for how many inmates the state is expecting to add to the state prison system under Measure 11. Petition granted. DAS had the requested report and intended to release it to the public in a few days. No statutory basis existed for DAS to withhold the report from immediate public disclosure.
October 10, 1996, Michael V. Reed. Petition for an order directing the Oregon Liquor Control Commission (OLCC) to make available witness statements the agency collected in the course of an investigation for a liquor law license application. Petition denied. While investigating possible liquor law violations, OLCC inspectors conducted interviews and obtained statements, which were shared with law enforcement authorities in conjunction with a criminal investigation. By virtue of the information having been shared with law enforcement authorities, the OLCC investigation records were compiled for criminal law purposes and are exempt from disclosure under ORS 192.501(3).
October 11, 1996, J. Todd Foster and Steve Bennett. Petition for an order directing the Board of Public Safety Standards and Training (BPSST) to produce a copy of all disciplinary findings against a BPSST instructor during his 21 years with BPSST. Petition granted in part and denied in part. ORS 192.501(12) exempts from disclosure completed personnel discipline actions and related records when a sanction is imposed unless the public interest requires disclosure in the particular instance. Ordinarily, disciplinary records are of primary significance to the employer and employee with little relevance to the public interest. BPSST instructors provide instruction to law enforcement officers on minimum fitness standards, which necessarily include the ability and willingness to enforce the law in the diverse communities of this state without regard to gender, race, religion or ethnicity, while treating all citizens with equal dignity and respect. The instructor was disciplined for making comments offensive to a student's religious beliefs and ethnicity. When a law enforcement officer who is charged with the duty to provide instruction about the minimum standards of moral fitness has engaged in conduct that is contrary to or incompatible with those standards, the public interest in the disciplinary records outweighs the employee's expectation of privacy.
As to any remaining disciplinary records, the discipline was unrelated to the instructor's training responsibilities, nor was he exercising law enforcement functions. Accordingly, we find no overriding public interest in disclosure.
January 15, 1997, Nonalee Burr and Jerry Freshour. Petition for an order directing the Board of Public Safety Standards and Training (BPSST) to make available the background investigation report for petitioner's application for employment. Petition granted in part, denied in part. The information provided by private individuals who previously employed petitioner was exempt under ORS 192.502(3) because it was submitted in confidence, not otherwise required by law, and should reasonably be considered confidential. When the information would, by its very substance, identify the source of the reference, simply deleting source-identifying materials to permit disclosure of the statements would not preserve the requested confidentiality. The public interest would suffer by disclosure; if BPSST was not able to assure its sources that their statements would be kept confidential, the agency would lose its ability to obtain frank appraisals of a candidate's suitability for public employment. The information provided by state agencies previously employing petitioner was exempt under ORS 192.502(1) to the extent it was nonfactual communications of an advisory nature between public bodies. The public interest in encouraging frank and candid exchanges between the public bodies of subjective evaluations of an applicant's prior work outweighs the public interest in disclosure. The remainder of the requested information was not exempt from disclosure either because it was not submitted in confidence by citizens or because it was provided by a state agency, but was of a purely factual nature.
March 3, 1997, Poo-sa′key and Gregory Willeford. Petition for an order directing the Oregon State Police (OSP) to make available OSP's building inspection report for The Mill Casino building and compliance review report relating to the Tribal-State Compact for Regulation of Class III Gaming between the Coquille Tribe and the State of Oregon (Compact). Petition denied in part and granted in part. As to the inspection report, OSP's delay in responding to the records request to obtain legal advice not a denial.
As to the compliance review report, much of the information was submitted to OSP on the express condition that the information would be kept confidential, and OSP obliged itself in good faith not to disclose the information. The exemption in ORS 192.502(3) applies only when the information was "not otherwise required by law" to be submitted. Except for the Compact, however, under which the tribe agreed to allow the state to review its records and to provide OSP access to all areas of the gaming facility, the tribe was under no legal obligation or otherwise required by law to do so. Information is "required by law" to be submitted when that is required by a governmental enactment such as a statute or rule, not merely when there is a legal obligation under a contract. The information should reasonably be considered confidential because it describes the specific measures undertaken by the tribe to protect the gaming operations and its disclosure could affect the security of the gaming operation and facility. Failure by OSP to maintain confidentiality of the records would likely result in decreased cooperation from tribes in similar reviews. The public interest in maintaining candid and open communications between OSP and the tribe in relation to the tribe's gaming operation and security measures outweighed any harm caused by a denial of disclosure in this instance. Consequently, the portions of information provided by the tribe in confidence were exempt under ORS 192.502(3).
March 17, 1997, Cindy Chastain. Petition for an order directing the Health Division (division) to make available copies of its practical examination for petitioner's electrolysis license and petitioner's exam results. Petition denied. ORS 192.501(4) exempts from disclosure exam questions, scoring keys and other data used to administer a licensing examination if the examination will be used again. Like written exam questions, disclosure of performance items evaluated on the practical exam could jeopardize the integrity of the practical examination because they would identify the particular attributes being evaluated by the proctor. The sections of the score sheets detailing performance evaluation and the specific comments of the evaluator regarding performance were also exempt from disclosure. As to the remainder of the score sheet, the division agreed to disclose the sections detailing possible points available for each item on the exam and the points awarded to the petitioner.
May 2, 1997, David A. Bledsoe. Petition for an order directing the Oregon Housing and Community Services Department (OHCSD) to produce copies of sound recordings of Finance Committee Meetings, electronic mail messages, phone logs, Finance Committee Policy Manual and all scoring sheets and materials used for evaluating tax credit projects. Petition denied. OHCSD agreed to provide either sound recordings or transcripts of the Finance Committee meetings with the attorney-client privileged communications deleted, and electronic mail, telephone records and the Policy Manual, so long as OHCSD's estimated costs were prepaid by the petitioner. Consequently, the Attorney General lacked authority to order disclosure. ORS 192.450(1). OHCSD also agreed to provide the requested information pertaining to tax credit project files, except for scoring sheets and evaluation materials that were exempt under ORS 192.501(4). The materials were designed by OHCSD to elicit detailed descriptive information on proposed tax credit projects so that those projects could be evaluated in a competitive funding cycle. If the evaluation methodology was disclosed, subsequent responses would become tailored toward that methodology, more uniform in character, less descriptive of defining attributes for each project, and thus less useful in evaluating projects for competitive funding. Consequently, the scoring sheets and evaluations materials were exempt from disclosure because disclosure would jeopardize the integrity of OHCSD's consolidated funding cycle examination process.
July 17, 1997, Steven Wilker. Petition for an order directing Oregon Department of Corrections to release information obtained as part of a preemployment background check was denied. Employment verification forms completed by employment references in confidence are exempted from disclosure under ORS 192.502(3). Communications between a former public employer and a prospective public employer are exempt from disclosure under the internal advisory exemption, ORS 192.502(1), because of the public interest in encouraging frank communication.
August 6, 1997, Carlton Scott Parrish. Petition for an order directing Oregon State University to make available a compilation of proposed budget cuts was denied. ORS 192.502(1) exempts from disclosure communications within a public body of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to final agency determination if the public interest in frank communication clearly outweighs the public interest in disclosure. Here, the public interest in allowing frank exchanges concerning budget options and potential cuts would be substantially undermined if the preliminary recommendations of managers were disclosed before the university made these difficult program decisions.
September 19, 1997, James Long. Petition for an order directing Oregon Occupational Safety and Health Division to make available records concerning steelwork collapse at Portland International Airport was denied. ORS 192.501(17) exempts investigatory information relating to any complaint or charge alleging possible violation of the Oregon Safe Employment Act unless the public interest requires disclosure in the particular instance. Despite the huge investment of public funds in the airport expansion project and the potential relevance of the records to the Port's oversight of its contractors, the public interest in protecting the integrity of the investigation and ensuring safe working conditions is paramount to the interest in disclosure of these records during the investigative phase. By its terms, the exemption no longer applies when a final administrative determination is made or the employer receives notice of any citation, and the requester will be able to obtain the requested information at that time.
October 17, 1997, Rhonda Fenrich. Petition for an order directing the Board of Public Safety Standards and Training to make available an internal affairs investigation report was denied. Under ORS 192.502(1) (internal advisory communications), a record is exempt if it is a communication within or between public bodies, it is of an advisory nature preliminary to agency action, it covers other than purely factual materials, and the public interest in encouraging frank communication clearly outweighs the public interest in disclosure in the particular instance. The "Conclusion and Recommendation" section of the report is exempt from disclosure under ORS 192.502(1).
June 26, 1998, Bradley Scheminske and Joan Fraser. Petition for an order requiring the Workers' Compensation Board to produce records related to its investigation of complaints against a former Administrative Law Judge. Information about administrative law judge's job performance is not exempt under ORS 192.502(2) (personal privacy). Notes of the presiding Administrative Law Judge assessing the merits of the complaints are exempt under ORS 192.502(1), which exempts from disclosure communications within a public body of an advisory nature to the extent they cover other than purely factual materials and are preliminary to final agency determination. Public interest in encouraging supervisor's frank appraisal of subordinates that are the subject of complaints outweighs the public's interest in disclosure of the portions of the notes that subjectively evaluate investigation materials and make recommendations for board action.
ORS 192.502(19) exempts from disclosure workers' compensation claims records subject to certain exceptions, including when the disclosure is made in such a manner that the information cannot be used to identify any workers who are the subject of the claim. Records not exempt under ORS 192.502(19) if workers' names and other identifying information can be redacted.
July 9, 1998, Bradley Scheminske. Petition for an order directing Workers' Compensation Board to make available records that identify all active workers' compensation litigation cases pending at the board was denied. The material requested is exempt from disclosure as workers' compensation "claim records" under ORS 192.502(19). The intent of the exemption is to protect the identity of workers who have filed claims in order to protect them from discrimination. There are four exceptions to this exemption, none of which apply. The first, for records necessary for an insurer, self-insured employer or third-party administrator to process a claim, was not met because the requested records are not limited to cases in which the requester is involved. The second permits disclosure only when necessary for the director or other governmental agency to carry out its duties. The third exception is when records can be disclosed in a manner that protects the identity of the worker who is subject to the claim, and the requester did not accept the board's offer to supply the information with the workers' names redacted. The final exception, when a worker or worker's representative requests review of the claims records, did not apply because requester was neither a worker nor a worker's representative.
September 4, 1998, Dan Spatz. Petition by a newspaper editor for an order directing Oregon Department of Forestry to make available copies of a lightning strike map for Wasco County denied. Lightning strike data was made available to department under a licensing agreement with a private corporation, which defined the data as proprietary and confidential and obliged the department not to disclose it. ORS 192.502(4) exempts from disclosure information submitted in confidence when an agency obliges itself in good faith not to disclose the information if the information is of a nature that reasonably should be kept confidential, is not required by law to be submitted, and the public interest would suffer by disclosure. Each of these conditions was met.
The information was also a trade secret exempt under ORS 192.501(2). The public interest did not require disclosure because the requester's objective (to illustrate fire stories and to inform the community of recent lightning strikes that may warrant investigation) had no bearing on the department's use of the information. Disclosure would therefore not further the public's interest in monitoring what the agency was doing and would likely harm the public interest by hampering the agency's ability to detect and suppress fires. The information was also exempt under ORS 192.502(9), which incorporates the Uniform Trade Secrets Act.
August 2, 1999, Damon L. Vickers. Petition for an order requiring the Oregon Occupational Safety and Health Division of the Department of Consumer and Business Services (OR-OSHA) to disclose an Oregon Department of Justice (DOJ) memorandum to OR-OSHA regarding the proposed revision of OR-OSHA administrative rules and redacted information from records previously disclosed by the agency. Petition denied. The DOJ memorandum and a portion of the redacted materials were privileged under Oregon Evidence Code Rule 503 as attorney-client communications and therefore exempt from disclosure under ORS 192.502(9). An additional portion of the redacted information consisted of OR-OSHA staff analysis of the draft proposed rules. As such, it was exempt from disclosure as internal advisory communication. ORS 192.502(1).
September 20, 1999, Brian Michael. Petition for an order requiring Oregon State University to disclose a copy of a class grade book with student names and identification numbers deleted. Petition denied because the federal Family Education Rights and Privacy Act (FERPA), 20 USC § 1232g, prohibits the release of personally identifiable information from student records without the student's consent. Federal regulations provide that "personally identifiable information" includes that which "would make the student's identity easily traceable." 34 CFR § 99.3. The requester's possible knowledge regarding students in the class and the small number of students taking the final examination, coupled with disclosure of the requested grade book, would have made student identities easily traceable. Because disclosure was prohibited by federal law, the class grade book was exempt from disclosure under ORS 192.502(8), which exempts information "the disclosure of which is prohibited under federal law or regulations."
November 19, 1999, William Joseph Birhanzl. Petition for the Attorney General to direct the Board of Investigators (board) to make available records pertaining to particular license applicants. Petition granted in part and denied in part. Petition denied in relation to disclosure of the license applicants' personal residence addresses and telephone numbers because the board, following the requirements of the uniform rule, had concluded that disclosure was prohibited under the personal safety exemption, ORS 192.445. The Attorney General would not substitute its judgment for the board's when reviewing the board's decision under ORS 192.450(1).
December 1, 1999, Anne L. Nichol. Petition for an order requiring the State Controller's Division (division) to make available a list of outstanding and uncashed warrants over a certain dollar amount issued by the state during the two years prior to the request. Petition denied because list was exempt under ORS 192.502(15), exempting reports of unclaimed property filed by the holders of such property to the extent permitted by ORS 98.352.
December 17, 1999, Charles Sheketoff. Petition for an order requiring the Employment Department to make available reports prepared by the Shared Information System (SIS) for the Adult and Family Services Division (AFS). Petition denied because the Employment Department's SIS was not the custodian of the requested reports but acted as AFS's agent in relation to the reports. The Employment Department was required to disclose the reports only if they were not available from the custodian.
February 9, 2000, Andrew Schneiderman. Petition for an order requiring the Oregon Department of State Police (OSP) to make available report to OSP hiring selection committee regarding requester's eligibility for hire. The portions of the report that provided the investigators' subjective assessments of background information regarding the requester and recommendation regarding employment were exempt under internal advisory communication exemption, ORS 192.502(1).
March 10, 2000, Steve Suo/Steve Mayes. Petition for an order to require the Oregon Department of Transportation (ODOT) to waive its fees for providing requested records. Petition denied because ODOT's refusal to waive fees was not unreasonable. ODOT's compliance with the Public Records Law was neither an expenditure for a highway, nor an administrative cost that supports a highway program or purpose that primarily and directly facilitates motorized vehicle travel. Consequently, ODOT could not waive its fees if the costs that the fees represented otherwise would have been paid from constitutionally dedicated highway funds. It was reasonable for ODOT to use its small nondedicated General Fund appropriation to ensure that it could fulfill its statutorily mandated responsibilities for the general public good, for which no other funds were available, rather than to grant a fee waiver for a public records request.
It was not unreasonable for ODOT to request Department of Justice attorneys to perform the necessary segregation of exempt and nonexempt materials within requested records when a large amount of records were requested that raised issues related to, e.g., the attorney-client privilege, trade secret information and the application of newly-enacted exemption statutes. Therefore, it was proper for ODOT to include attorney fees in its estimate of the actual costs to make the records available.
March 29, 2000, Steve Mayes. Petition for an order to require several Oregon agricultural commissions, e.g., the Oregon Blueberry Commission, either to waive their public records fees or to provide a written explanation and justification of the fees charged. Petition denied because commissions' refusal to waive fees was not unreasonable. With respect to request for written explanation and justification of fees, Public Records Law does not authorize a person to petition the Attorney General to review an agency's establishment of fees, and the Attorney General has no authority to determine if the fees charged represent an agency's actual costs.
July 17, 2000, Pat Forgey. Petition for an order requiring the Sex Offender Registration Unit of the Oregon State Police (OSP) to make available the unit's Sex Offender Database in electronic form. Petition denied because nonexempt information sought was part of larger database containing both exempt and nonexempt information, and software used by OSP did not allow segregated information to be exported electronically.
September 5, 2000, Herbert D. Riley. Petition for an order requiring the Oregon Department of Veterans' Affairs (ODVA) to disclose records of an investigation of a discrimination complaint. Petition denied as to records covered by the attorney-client privilege and exempt under ORS 192.502(9). As to notes of the investigator's interview of an ODVA administrator, basis for the claim of attorney-client privilege was the fact that the investigator, working at the direction of an Assistant Attorney General, was legal counsel's representative, and communications during the interview were solely for the purpose of facilitating the rendition of professional legal services to ODVA and were not intended to be disclosed to third parties.
November 9, 2000, Don S. Simpson. Petition for an order to direct the Building Codes Division (division) to make available a report reviewing the Silverton Building Department. Petition granted. The requested record included factual information about one or more Silverton employees that might or might not support personnel discipline action. Because the division's purpose in creating the report was to carry out its statutory duty to regulate municipalities' building inspection programs, however, and the division was without jurisdiction to discipline a Silverton employee, there was no basis under the exemption for personnel discipline actions, ORS 192.502(12), to withhold the requested record from disclosure.
January 12, 2001, Harvey Varenhorst. Petition for an order to require the Oregon Department of State Police (OSP) to make available interview questions and other information pertaining to specific hiring decisions made by OSP. Petition was denied under ORS 192.501(4) for those questions requiring an applicant to respond to a specific hypothetical scenario because disclosure would threaten the integrity of the applicant evaluation process.
January 31, 2001, Charles Hinkle. Petition for an order directing the Oregon School Activities Association (OSAA) to disclose certain records in the OSAA's custody. Petition denied because the OSAA was not the functional equivalent of a state agency under the nonexclusive list of factors outlined in Marks v. McKenzie High School Fact-Finding Team, 319 Or 451, 878 P2d 417 (1994).
February 1, 2001, Leslie I. Zaitz. Petition for an order to direct the Oregon State Police (OSP) to make available an unredacted copy of an e-mail message between two employees within OSP. Petition denied as to portions of the e-mail that were internal advisory communications under ORS 192.502(1). Contrary to arguments offered by the requester, assessing the extent to which frank communication in the particular instance actually helped to advance the work of the agency was not an appropriate consideration in balancing the public interest in frank communication against the public interest in disclosure under ORS 192.502(1).
June 28, 2001, Leslie L. Zaitz. Petition for an order requiring the Oregon Department of Education (ODE) to disclose copies of correspondence between ODE employees and the Government Ethics Commission (GEC) denied because ODE did not have custody of applicable public records. While one or more individual ODE employees may have been in possession of correspondence with GEC concerning the employee's possible violation of ethical obligations arising under ORS chapter 244, such correspondence would not be a public record when in the employee's, rather than GEC's, possession. Because a GEC investigation would pertain to the public employee in his or her private capacity, and the employee would be personally liable for any sanctions that GEC may impose, correspondence between the employee and the GEC about whether the employee's conduct violated ORS chapter 244 would be prepared, owned, used or retained by the employee in his or her private capacity. Consequently, such correspondence would not be a public record.
August 15, 2001, Vincent Padgett and Pamela Eller. Petition for an order directing the Oregon Department of State Police (OSP) to disclose polygraph records. Petition denied. The requested polygraph records were part of the criminal investigation that led to criminal charges being brought against the petitioner, Mr. Padgett, on which he was convicted. The convictions were on appeal at the time the records request was made to OSP. While information about polygraph examinations is generally inadmissible in criminal trials, in light of the possibility of the convictions being overturned on appeal and retrial becoming necessary, both the petitioner and the state were entitled to a jury unaffected by the prior polygraph examination. Therefore, the requested records were exempt as "investigatory information compiled for criminal law purposes" under ORS 192.501(3).
October 31, 2001, William Miller. Petition for an order requiring the Oregon Department of Education (ODE) to waive its fees for providing requested records. Petition denied. Because a waiver or reduction of fees for the cost of providing records from the Oregon School for the Deaf about instances of sexual abuse to the Seattle Post-Intelligencer would serve the public interest, ODE had the authority to waive its fees. ODE waived all but $50 of its $1,523 fee for providing the newspaper with records for the 2000-2001 school year, but denied the newspaper's request to waive all but $100 of its fees for responding to a follow-up request for records for five additional years. In light of the reduction of fees assessed for responding to the newspaper's initial request, the time and expense to ODE of responding to the follow-up request, the volume of records ODE would need to review to respond to the follow-up request, and the confidential nature of student records necessitating segregation of exempt from nonexempt information, ODE's denial of the request for a further waiver of its fees was not unreasonable.
November 13, 2001, Pat Forgey. Petition for an order directing the Oregon Department of State Police (OSP) to disclose any police report or internal investigation report involving an identified individual as a suspect. Petition denied. The order addressed the redaction of names in the report OSP had disclosed. Redacted names of law enforcement officers assigned to undercover investigative duties are exempt as criminal investigatory information under ORS 192.501(3), and are also confidential under ORS 181.852, which specifically addresses information about undercover law enforcement officers and is incorporated into the Public Records Law through ORS 192.502(9).
February 28, 2002, Gregory Perry. Petition for an order directing the Oregon Department of Education to provide copies of the Oregon State Assessment Test in mathematics and reading given to 3rd, 5th, and 8th grade students in the years 1996 through 2001. Petition denied. ORS 192.501(4) exempts from disclosure "[t]est 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 being used again." The questions in the requested tests could be reused in future statewide assessments. The public interest in assessing whether the rigor of the tests changed over time did not require disclosure in this instance.
March 27, 2002, Leslie I. Zaitz. Petition for review of Department of Education's (ODE) denial of fee waiver. Petition denied. ODE's agreement to waive $182.50 out of a total $566.50 in copying fees was not unreasonable in light of the volume of records produced and the time spent by ODE personnel to respond to requests.
April 5, 2002, Paul B. Meadowbrook and David Myton. Petition for an order directing the Teacher Standards and Practices Commission (TSPC) to make available all records concerning investigation and suspension of a named teacher. Petition denied in part and granted in part. Certain information of a highly personal nature that was contained in records provided by a former student was not exempt on the basis of personal privacy under ORS 192.502(2) where, before providing the records, the student was informed by TSPC that they might have to be publicly disclosed in the course of the disciplinary process.
TSPC obtained personnel records from the Corvallis School District that would ordinarily be confidential under ORS 342.850(8). Under ORS 192.502(10), those transferred records would remain confidential if the considerations originally giving rise to confidentiality remained applicable. With regard to information contained in the records that was included in TSPC's order or that duplicated information already disclosed to the requester, those considerations no longer applied. With regard to records that were not disclosed by TSPC, in its order or otherwise, the confidentiality policies continued to apply, and the records were exempt from disclosure.
Finally, the teacher's attorney submitted a settlement offer to TSPC with the caption "For Settlement Purposes Only – Confidential." The record was not exempt from disclosure as a confidential submission under ORS 192.502(4) because there was nothing to suggest that TSPC represented that it would not disclose the information.
July 10, 2002, Randy Tucker. Petition for an order requiring the Department of Administrative Services to disclose redacted sections of the state's "Measure 7 Implementation Plan" (Plan). Petition denied. The two withheld sections of the Plan were internal advisory communications under ORS 192.502(1). The frank and free exchange of ideas for administering and funding Measure 7 claims would be self-censored or "chilled" if the involved state employees had to be concerned about political or other ramifications disclosure would have on themselves or their agencies. Under the circumstances, the clear public interest in encouraging frank communication outweighed the public interest in disclosure.
August 21, 2002, David Isaac Maimon. Petition for an order directing the transcript coordinator for the Marion County Circuit Court to make available a copy of an audiotape of a specific hearing. Petition denied. The Marion County Presiding Judge had issued an order directing that a record of the proceeding be provided only in the form of a written transcript. This order constituted a claim by an elected official of a right to withhold disclosure of the audiotape, divesting the Attorney General of authority to consider the petition under ORS 192.480.
September 3, 2002, James Long. Petition for an order requiring Oregon Public Broadcasting (OPB) to disclose certain financial records. Petition denied. OPB, a private, not-for-profit corporation, is not the functional equivalent of a public body subject to the Public Records Law under the nonexclusive list of factors set out in Marks v. McKenzie High School Fact-Finding Team, 319 Or 451, 878 P2d 417 (1994). Factors supporting this conclusion include the lack of government control over OPB's operations and the private status of its employees.
October 7, 2002, Jeanyse R. Snow. Petition on behalf of the City of Warrenton for an order directing the Division of State Lands to disclose certain records. Petition denied. The City of Warrenton is itself a public body, and as such is not a "person" entitled to invoke the Public Records Law to obtain records from another public body.
November 15, 2002, Melissa Jones and Jim Voykto. Petition for an order requiring the Public Employees Retirement System to disclose retirement benefit information for 32 named retirees. Petition granted in part and denied in part. Retirement benefit amounts received by an individual retired public employee is information of a personal nature, the disclosure of which would be an unreasonable invasion of privacy under ORS 192.502(2), if the disclosure identifies the benefit amounts as pertaining to the individual retiree. However, the benefit amount information in a form that does not permit associating it with a particular individual is not exempt from disclosure.
November 19, 2002, Scott Forrester. Petition for an order requiring the Citizens' Utility Board (CUB) to disclose certain records. Petition denied. CUB is not a public body subject to the Public Records Law under the nonexclusive list of factors set out in Marks v. McKenzie High School Fact-Finding Team, 319 Or 451, 878 P2d 417 (1994). Like the entity considered in Marks, CUB performs only advocacy or advisory functions, not governmental decision-making functions.
December 18, 2002, Noelle Crombie. Petition for an order requiring the Department of Human Services (DHS) to disclose records concerning the agency's discharge of its child welfare responsibilities in relation to named individuals. Petition denied. The Clackamas County District Attorney's office served a subpoena on DHS in relation to a pending criminal prosecution, and the subpoena encompassed the requested records. As a result, the requested records constituted investigatory information compiled for criminal law purposes under ORS 192.501(3). A deputy district attorney requested that DHS assert the criminal investigatory exemption for the requested records, and it was permissible for DHS to act on the deputy district attorney's representation that public disclosure of the records would interfere with a pending criminal prosecution.
January 21, 2003, Keli Kubat. Petition for an order requiring the Department of Human Services (DHS) to disclose a copy of a Social Security Administration (SSA) form and records related to the assessment stated on the form. Petition denied. The requested records related to a determination made under the SSA disability program. SSA is responsible for the maintenance of all records of that program and has promulgated regulations governing their disclosure. The relevant federal regulations authorize SSA, but not DHS, to disclose records. On the basis of the applicable federal regulations and underlying statutes, the requested records were exempt from disclosure under ORS 192.502(8).
March 20, 2003, Paul J. Rask. Petition for an order requiring the Department of Transportation, Driver and Motor Vehicle Services (DMV) to disclose records concerning a named individual's driver license. Petition denied. Included among records responsive to the petition were reports from private individuals to DMV about the specified person's driving ability. Some records were exempt from disclosure because they had been submitted to DMV in confidence. ORS 192.502(4). Other records not meeting the criteria of that exemption contained the names, addresses, phone numbers or other information identifying persons who made reports to DMV. From their interactions with DMV, the agency concluded that the persons whose identity would be revealed by disclosure of the records wished to maintain their anonymity. In the particular circumstances, in which disclosure could have the effect of jeopardizing personal and professional relationships with the person whose driving ability was at issue, the records were exempt on the basis of personal privacy. ORS 192.502(2).
September 25, 2003, D.E. Bridges. Petition for an order directing Oregon State University (OSU) to disclose transportation analysis records. Petition denied. The petitioned records, which had been prepared by or under the direction of OSU faculty, contained or discussed transportation research and analysis for which the Oregon Department of Transportation had contracted with OSU. The research had not yet been publicly released, and was neither copyrighted nor patented. With the research being preliminary and incomplete, and therefore at an increased risk of being misinterpreted, the public interest did not require disclosure in the particular instance, and the records were exempt from disclosure under ORS 192.501(14) (faculty research records). OSU agreed to disclose records responsive to the request, to the extent that they contained nonexempt information.
October 1, 2003, Robin Franzen. Petition for an order directing the Department of Administrative Services, Risk Management Division, to disclose an investigative file and final report. Petition denied. The petitioned records had been developed or compiled in response to the state's receipt of a notice of tort claim, and the time in which court action could be initiated on the claim had not yet run at the time the request was filed. Because disclosure of the records would prejudice the state in litigation, and the time in which litigation remained a possibility was finite, the public interest did not require disclosure in the particular instance, and the records were exempt under ORS 192.501(1) (records pertaining to litigation).
March 4, 2004, Les Zaitz. Petition for an order directing the Department of Administrative Services (DAS) to disclose certain financial information about the sale of Dammasch State Hospital as surplus state property. Petition denied. Petitioned records provided by a developer, addressing the developer's financial status, met the criteria for exemption from disclosure as confidential submissions under ORS 192.502(4). Even though in some instances the developer had not complied with all of the steps created by DAS to maintain confidentiality, its actions had been sufficient to demonstrate that financial information had been submitted on the condition that it would remain confidential. Disclosure would have caused harm to the public interest by discouraging developers and investors from seeking to do business with the state. Pro formas submitted by the developer, showing the expense and revenue assumptions for the proposed project, constituted trade secrets, and disclosure would not have served the public interest stated by the petitioner, i.e., knowing about the financial viability of the developer. The pro formas were exempt from disclosure under ORS 192.501(2) (trade secrets).
March 29, 2004, Jim Redden. Petition for an order directing the Oregon Historical Society (OHS) to disclose certain records compiled during former Governor Neil Goldschmidt's administration. Petition denied. The petitioned records were being held by OHS. The Public Records Law confers a right to inspect any public record of a public body in Oregon, subject to certain exemptions and limitations, and requires the public body to provide "proper and reasonable opportunities for inspection and examination" of the records. ORS 192.420, 192.430. Under the analytic framework established by the Oregon Supreme Court in Marks v. McKenzie High School Fact-Finding Team, 319 Or 451, 878 P2d 417 (1994), OHS is neither a "public body" nor its functional equivalent. Factors leading to this conclusion included OHS being created by private, not government, interests; its lack of authority to make binding decisions for state government; the nongovernmental status of its staff; and the limited governmental financial support provided to, and control exercised over, OHS.
April 22, 2004, William Joseph Birhanzl. Petition for an order directing the Multnomah County Trial Court Administrator to disclose records of certain judicial hearings. Petition denied. The public body maintained a copy of the records in the form of a stenographic tape, which only the court reporter who recorded it could "read" and transcribe. The Public Records Law requires that a custodian of a public record maintained in a machine readable form provide copies "in the form requested, if available." ORS 192.440(2). If the public record is not available in the form requested, the public body is required to make it available "in the form in which it is maintained." ORS 192.440(2). The public body was willing to provide the requester with a copy of the tape, along with the court reporter's name and contact information. The process by which a party to a court proceeding may request the creation of a transcript is governed by ORS 8.350, with implementation of that statute being outside the scope of the Attorney General's jurisdiction under the Public Records Law. ORS 192.450.
June 4, 2004, Andrea R. Meyer. Petition for an order directing the Oregon Liquor Control Commission (OLCC) to disclose the redacted portions of an otherwise disclosed draft report related to agency rulemaking. Petition denied. The draft report had been prepared by OLCC staff for circulation among OLCC's executive management and, eventually, its Commissioners, for the purpose of providing staff recommendations regarding a final rulemaking decision to be made by the Commission. The redacted portions were in sections entitled "Summary of Comments" and "Presiding Officer Summary and Recommendation." Rather than "purely factual material," the redacted portions of the report were influenced by the policy positions being recommended, with the redactions in the latter section representing the drafter's subjective weighing and assessment of the information being provided, along with recommendations based on that analysis. Because the Commission had actually made its decision prior to the staff report being finalized, the report had not had any bearing on the decision. While disclosure would not have informed the public about the Commission's decision-making process, it would have deterred OLCC staff from freely providing to the Commission frank evaluation of evidence in future rulemaking proceedings. Therefore, the public interest in encouraging frank communication clearly outweighed the public interest in disclosure, making the redacted portions of the report exempt from disclosure under ORS 192.502(1) (internal advisory communications).
June 16, 2004, Andrea R. Meyer. Petition for review of the Oregon Liquor Control Commission's (OLCC) denial of a waiver or reduction of fees. Petition denied. The 25% fee reduction which the OLCC agreed to grant the petitioner was sufficiently substantial. The agency's decision to grant the reduction rather than a complete waiver was not unreasonable, given that the public benefit of disclosure to the petitioner was narrow in scope.
June 16, 2004, Dennis Wilkinson. Petition for an order directing the Union/Baker Education Service District to disclose records. Petition denied. Education Service Districts were created by statute to provide "regional educational services to component school districts." ORS 334.003(2). A formal Attorney General Opinion describes them as "popularly elected local government bod[ies]." 42 Op Atty Gen 243, 255 n 9 (1982). The Attorney General does not have jurisdiction to review the denial of a records request issued by a local government body.
July 8, 2004, David P. Meyer. Petition for an order directing the Board of Accountancy to disclose records relating to a named person. Petition denied. The petitioned records had been created and compiled by the agency during its investigation of complaints filed against the named person. The agency had shared a portion of these records with the Portland Police Bureau (PPB), which was conducting a criminal investigation involving the named person. Following the agency's receipt of the petitioner's request for records, the PPB informed it that disclosure of all but one of the shared records could impede or have an adverse effect on the criminal investigation. With no basis to conclude that the public interest required disclosure in the particular instance, the records specified by the PPB were exempt from disclosure under ORS 192.501(3) (criminal investigatory material). Other petitioned records were exempt from disclosure under ORS 192.502(9) due to their being made confidential under other Oregon law, specifically ORS 673.415(2). The agency agreed to disclose all nonexempt records.
August 16, 2004, James Bobbit. Petition for an order directing the Department of Corrections (DOC) to disclose a tort claim investigative report. Petition denied. DOC had prepared the petitioned record in response to a request from the Risk Management Division of the Department of Administrative Services, in connection with the latter's processing of a notice of tort claim filed by the petitioner. The tort claim notice was sufficient evidence that litigation was "reasonably likely to occur," so as to make the record exempt under ORS 192.501(1) (records pertaining to litigation), unless the public interest required disclosure in the particular instance. Because an interest in private litigation does not qualify as a public interest requiring disclosure, and another interest requiring disclosure was not identified, the record was exempt.
October 13, 2004, Gary Johansen. Petition for an order directing the Real Estate Agency to disclose records regarding licensees in machine readable format. Petition denied. Because the agency had told the petitioner how to obtain a CD-ROM containing a portion of the petitioned records, the agency had not denied the request for those records. In order to disclose the remaining petitioned records, the agency would have needed to "prepare extensive custom [computer] programs." Because the Public Records Law does not require public bodies to "develop or acquire new or additional software or programs in order to [electronically] retrieve the requested information," the Attorney General did not have authority to order disclosure of the additional records.
October 14, 2004, Sarah Jeans. Petition for review of the denial of a fee waiver by the Oregon State Police. Petition denied. A public body has authority to waive fees if it determines that waiver "is in the public interest because making the record available primarily benefits the general public." ORS 192.440(4). The petitioner based her waiver request on a financial inability to pay the agency's estimated fees and an interest in using the records to defend herself in court. A personal benefit to the requester alone, including the use of records in defending against criminal prosecution, is insufficient to require a fee waiver. An inability to pay, standing alone, is also insufficient.
November 8, 2004, Norma Anderson. Petition for order directing the Oregon Health Licensing Office (agency) to disclose records concerning a complaint filed against the petitioner. Petition denied in part and granted in part. The agency agreed to disclose all requested records other than the complaint, and the petition was denied as to these records. In relation to the complaint, the agency asserted that the complainant had requested confidentiality. However, it could not be established that the agency had obliged itself in good faith not to disclose the information provided by the complainant. For this reason, the record of the complaint was not exempt under ORS 192.502(4) (confidential submissions).
December 3, 2004, Naseem Rakha. Petition for an order directing Representative Tootie Smith to disclose records. Petition denied. At the time the order was issued, Tootie Smith was a member of the Oregon House of Representatives. The Attorney General does not have jurisdiction to consider a petition to inspect or to copy public records that are in the custody of an elected official, or in the custody of any other person but as to which an elected official claims the right to withhold disclosure. ORS 192.480. The petitioner asserted that the Attorney General had jurisdiction because the basis of the petition was not a denial of a records request but Representative Smith's failure to respond to the request. The petition was denied because, regardless of the basis of the petition, the Attorney General did not have jurisdiction due to Representative Smith's status as an elected official.
December 9, 2004, Jim Redden. Petition for an order directing the State Archivist to disclose records. Petition denied. The order addressed two issues: the interpretation of the statute making certain records of the Corrections Ombudsman confidential, ORS 423.430, and whether the State Archivist had constructively denied the petitioner's request for records not affected by ORS 423.430 by taking an unreasonable time to respond. With regard to the latter issue, records responsive to the petitioner's request included legal counsel records from the administration of a former Governor. Under the transferred records exemption, ORS 192.502(10), it was appropriate for the State Archivist to consult with the office of the current Governor about whether the records were exempt from disclosure, given that the current Governor is the state officer with authority to decide whether to disclose gubernatorial records covered by the attorney-client privilege and therefore exempt under ORS 192.502(9). The reasonable time in which the State Archivist was required to respond to the petitioner's request included the time needed for the current Governor's staff to review the relevant records and consult with the State Archivist about disclosure.
March 23, 2005, Janie Har. Petition for an order directing Oregon Department of Transportation (ODOT) to disclose subcontracts executed on the state's behalf by an ODOT contractor. Petition denied. ODOT had not prepared or retained the subcontracts. Also, it had not used them, either through reviewing their contents or another activity. Under the terms of its agreement with the contractor, ODOT had a right to access the subcontracts, but did not own them. Because a right of inspection does not amount to ownership, the subcontracts did not constitute "public records" as defined in ORS 192.410(4), i.e., "any writing containing information relating to the conduct of the public's business * * * prepared, owned, used or retained by a public body regardless of physical form or characteristics." Therefore, the Attorney General lacked authority to order their disclosure.
May 26, 2005, Bryan Andrade. Petition for an order directing the Department of Transportation, Driver and Motor Vehicle Services Division (DMV) to identify and disclose applicable law. Petition denied. The petitioner had referenced a disclosed DMV record and requested that the agency identify and disclose the state law relevant to aspects of the record. Responding to the request would have required DMV to engage in legal research. Under the rubric that the Public Records Law does not require a public body to create a record to disclose the reasoning behind its actions or the knowledge held by their staff nor to explain or answer questions about their public records, the petition was denied.
June 30, 2005, William J. Mills. Petition for an order directing Oregon State University (OSU) to disclose human resource records. Petition denied. OSU had provided a portion of the information requested and had informed the petitioner that it would process the remainder of his request upon receipt of its fee, representing its estimated processing cost of $15. Public bodies have authority to establish fees reasonably calculated to reimburse them for their costs in making records available, and may require prepayment of their estimated costs. The petition was denied because OSU had not denied the petitioner's request.
February 23, 2006, Henry Kane. Petition for disclosure of Oregon Department of Transportation (ODOT) records pertaining to advice given to ODOT by the Attorney General and all records pertaining to whether Article IX, section 3a, of the Oregon Constitution authorizes fuel and vehicle taxes to be used for purposes not listed in Article IX, section 3a. Petition denied. With regard to the first set of records, ODOT agreed to disclose all responsive records concerning advice received from an Assistant Attorney General. With regard to the second set of records, the Public Records Law does not impose on public bodies an obligation to comply with a request to engage in legal research or analysis of an issue. Because the Attorney General's office had not provided advice about the specific point of law in petitioner's second request, the request effectively invited ODOT to determine if any previous advice pertained to the legal question as framed by petitioner.
January 27, 2007, James W. Laws. Petition for an order directing Oregon State Police (OSP) to disclose The Mobile Response Team Plan or Special Operations Plan (plan) for the multi-agency enforcement action conducted at or in the vicinity of the Cove Palisades State Park. Petition denied. ORS 192.501(18) requires that a public record meet four criteria to qualify for the exemption. The plan met the criteria because, first, it was a specific operational plan for an identified event during particular periods, specifying how and when personnel are deployed around the park. Second, the record was connected to activities that occurred during the 2004 Memorial Day weekend at the state park that threatened the safety of specific individuals and the public generally, and the law enforcement activity provided for in the plan addressed OSP's actions to alleviate an anticipated threat to safety the following year. Third, the plan was prepared and used by OSP. Finally, public disclosure of the plan would allow individuals to learn the tactical procedures and deployment methods of OSP personnel and endanger the physical safety of law enforcement personnel and civilians in around the state park.
February 21, 2007, Lemuel Hentz. Petition for an order directing the Legislative Counsel Committee of the Oregon Legislative Assembly and its employees to make available for inspection or produce the date and time the Legislative Counsel received a copy of the Oregon Department of Corrections adopted rule, "Racketeering," OAR 291-105-0015(4)(k). Petition denied. A "state agency," as defined by ORS 192.410(5), does not include the Legislative Assembly.
February 27, 2007, Les Zaitz. Petition for an order directing the Oregon Department of Corrections (ODOC) to disclose ODOC records concerning Fred Monem, ODOC Food Services Administrator. Petition denied. ORS 192.501(3) exempts from disclosure criminal investigatory information not originally created, but later gathered, for criminal law enforcement purposes. The United States Attorney's Office represented to ODOC that disclosure of Monem's records could interfere with the pending investigation and possible prosecutions to follow. The exemption applied even though federal law enforcement authorities had not yet requested or subpoenaed the records because, while there was a legitimate public interest in disclosure of the requested records, the public interest did not require disclosure at that time.
August 7, 2007, Daniel J. Stotter. Petition for an order directing the Trial Court Administrator for Marion County Circuit Court to disclose the court's audio and video recordings of specified proceedings. Because the circuit court judge claimed the right to withhold disclosure of the recordings, the Attorney General had no authority to consider the petition, pursuant to ORS 192.480, regardless of whether the elected official had actual custody of the record.
August 8, 2007, Karen Kirsch. Petition for an order directing the Insurance Division (Division) to disclose the rate filing submitted to the Division by Regence Blue Cross/Blue Shield. Petition denied. Specific information contained in the rate filing pertaining to claim trends, retention, target-loss ratio, and accidental death benefit rates met the criteria for trade secrets and was exempt under ORS 192.501(2). The insurer informed the Division that the information was proprietary, compiled and known by the insurer's actuaries who had acquired the knowledge necessary to make such projections, used as a core component of rate setting, protected by Regence using extensive measures, and would provide an economic advantage to competitors if the information was disclosed. Furthermore, while other states have provided full disclosure of rate filings, such disclosure does not bind an Oregon agency or necessarily show a significant public interest in disclosure in this instance. Disclosure is reviewed pursuant to Oregon Public Records Law and the Uniform Trade Secrets Act.
October 16, 2007, Susan Davis. Petition for an order directing the University of Oregon to disclose e-mails between specified University personnel relating to reading and reading policy. Petition granted in part and denied in part. The University agreed to provide copies of several pages of material in response to the request and therefore that portion of the petition was denied as moot. Of the remaining e-mail messages subject to the request, the University produced thousands of pages of e-mail messages. The exemptions cited by the University required a highly fact-intensive review. Because the University did not associate any particular record with any particular exemption, the Attorney General was unable to determine which exemption was applied to which record, or whether an exemption was properly applied. The Attorney General granted the petition in part by ordering the University to disclose the records or, in the alternative, identify the particular exemption the University claims applies to a given record.
November 21, 2007, Allen Van Dyke. ORS 192.502(9)(b) eliminates the exemption for certain materials otherwise protected by the lawyer-client privilege only if all five of the statutory conditions for eliminating the exemption are present. Because the privileged communication sought was prepared in preparation for an administrative proceeding, and because no public statement had been made or authorized that characterized factual information in the record, the lawyer-client privilege was a proper basis for withholding the record.
November 23, 2007, Amy Hsuan. Requester sought a settlement agreement between the Teacher Standards & Practices Commission and a former teacher, along with materials pertaining to the investigation of the teacher. The settlement agreement itself was not "documents and materials used in the investigation" nor "the report of the executive director." As a consequence, the settlement agreement was not exempt from disclosure under ORS 341.176(4) as incorporated into the catchall exemption, ORS 192.502(9). However, because the Commission did not make a final determination that a violation had occurred, ORS 341.176(4) did exempt from disclosure the remaining materials gathered as part of the Commission's investigation.
January 16, 2008, William Harbaugh and Ryan Hagemann. The requester sought the identities of university presidents responding to a consultant's survey regarding presidential compensation. The Oregon University System had redacted the identities of the presidents based on ORS 192.502(4), stating that its consultant had promised confidentiality to the various presidents. Disclosure was required because information about university presidents' salaries is publicly available from a number of sources. Consequently, the information was not of a nature that reasonably should be kept confidential, and disclosure of the information would not harm the public interest.
February 20, 2008, Ryan Frank. Records provided to the State Treasurer's office by a private investment vehicle met the requirements for exemption under ORS 192.502(14)(a), relating to records of or submitted to the Treasurer or the Oregon Investment Council. To the extent that the records also contained some information that was not exempt under ORS 192.502(14)(b), the same information was contained in records already disclosed to the requester.
March 4, 2008, Brent Walth. Records documenting a meeting between a Portland State University professor and a state senator were subject to disclosure. PSU had claimed that the records did not relate to the public's business and therefore were not public records. Although the PSU professor was acting in a private capacity at the meeting, the evidence did not establish whether the state senator was acting in her capacity as a public official or in her capacity as a private individual. Because the burden was on PSU to sustain its action, it followed that disclosure was required.
March 13, 2008, William Harbaugh. Petitioner sought a "retroactive waiver" of a public records fee that had been paid. A previous order had upheld the University of Oregon's decision to not waive the fee in question, so the petition was treated as one for reconsideration. Although the Attorney General has authority to reconsider previously issued public records orders, and the authority to order public bodies to refund fees previously collected, the petition did not present any new information that would be relevant to assessing the reasonableness of UO's decision at the time the decision was made.
April 11, 2008, Jerry Dusenberry. An inmate sought release information about another inmate. The Department of Corrections makes that information freely available to members of the public. However, ODOC does not make the same information available to inmates, citing security and operational concerns. The fact that the information was available to the general public did not undercut ODOC's reliance on ORS 192.502(5), exempting ODOC records under certain circumstances, at least under circumstances where ODOC officials know that inmates are likely to misuse the information in ways that threaten safety, security, or the orderly operation of ODOC facilities.
May 20, 2008, William Harbaugh. Petitioner sought an order finding that the University of Oregon had constructively denied his request for records. By failing to observe UO's publicly available procedure for making public records request, the petitioner had invited some delay in UO's response, and his request had not been constructively denied.
July 11, 2008, Michael Moradian. A request for reports showing grade distributions in various classes was partly denied by the University of Oregon. UO claimed that disclosing data showing that fewer than ten students earned a particular grade in a particular class was prevented by the Federal Educational Rights and Privacy Act because the information could be easily traced to individual students. However, to uphold its redactions on review, UO was required to demonstrate that each piece of information withheld would, if disclosed, be easily traceable to at least one identifiable student.
July 24, 2008, Tom Rios. Petitioner sought records from Oregon Bridge Development Partners, a private entity, asserting that OBDP was subject to the requirements of the Public Records Law under the analysis adopted by the Oregon Supreme Court in Marks v. Mackenzie High School Fact-Finding Team, 319 Or 451, 878 P2d 417 (1994) (see App C-XX). Regardless of whether OBDP might meet the test adopted in Marks with regard to some of its functions, the records in question were of a sort that any general contractor might possess and did not pertain to any traditionally governmental function exercised by OBDP. Consequently, the particular records were not subject to disclosure by OBDP regardless of whether some OBDP records might be.
September 3, 2008, Jacob Barrett. An inmate incarcerated in Oklahoma under the Interstate Corrections Compact sought an order compelling the Oklahoma Department of Corrections to disclose certain records under Oregon's Public Records Law. The ICC provides that inmates transferred across state lines for confinement do not lose legal rights they would have enjoyed had they remained in their home states. Because the right conferred by the Oregon Public Records Law is the right to inspect the records of Oregon public bodies, however, that provision of the ICC did not render the Oklahoma Department of Corrections subject to Oregon's Public Records Law.
October 27, 2008, William Harbaugh. Regardless of whether the Oregon University System had complied with the requirement to acknowledge public records requests "as soon as practicable and without unreasonable delay," a lapse of approximately two weeks did not support an inference that OUS had constructively denied the request. Consequently, the petitioner was not entitled to an order compelling OUS to disclose the records.
November 7, 2008, Frank Mussell. An attorney representing a nurse under investigation by the Oregon State Board of Nursing requested certain documents contained in the investigative file. Although ORS 676.175 provides for some disclosure of such investigative records once a decision has been made to either forego disciplinary proceedings or impose discipline, neither of those determinations had yet been made with respect to the nurse on whose behalf the records were requested. Consequently the records were subject to the general confidentiality rule of ORS 676.175.
February 24, 2009, Charlie Ringo. A petition was denied as premature where the underlying request was reasonably perceived by the Insurance Division as a request for discovery in an administrative matter, and not a public records request. The two types of requests require agencies to weigh different considerations, and public bodies are not obligated to treat every apparent discovery request as a request for records under the Public Records Law.
April 24, 2009, William Harbaugh. Requester sought documents from the University of Oregon, and UO provided three-hundred plus pages of documents after receiving prepayment of estimated fees in the amount of $293.00, reflecting a 25% reduction. The cost of producing those pages far exceeded the estimated amount, but UO did not charge additional fees. Requester subsequently realized that the records provided were incomplete, and brought that fact to UO's attention. UO confirmed that it had overlooked some records, and provided the requester with an estimate of the cost required to complete its response. UO further stated that it would not waive any portion of the remaining fee. UO's decision regarding the waiver request was reasonable under the totality of the circumstances presented, and UO could permissibly require prepayment of its remaining estimate. With respect to the reasonableness of the waiver, UO anticipated that the overall reduction would be at least 25%, in light of the decision not to charge costs in excess of the original estimate. Moreover, there was no indication that the remaining records would be any different in character than the three-hundred plus pages already provided, a fact that diminished the significance of public interest in further disclosures. In addition, requiring prepayment was permissible under the circumstances in light of indications that the requester was unwilling to pay additional amounts.
May 19, 2009, George Miller. Petitioner asked for an order directing a health professional regulatory board to disclose records made confidential under ORS 676.175. The petitioner had failed to follow the required procedure for petitions seeking records from a health professional licensing board. Nevertheless, because requester failed to demonstrate that the public interest in disclosure clearly outweighed the various interests in nondisclosure, the affected licensee was not prejudiced and the petition could be denied on the merits.
August 6, 2009, Rachel Bachman. A request for records pertaining to an individual who had been in custody of the Oregon Youth Authority at the MacLaren School for Boys in the 1970s was denied by OYA on the basis of the Federal Educational Rights and Privacy Act. The petitioner asserted that the records were not protected by FERPA and, because the records were more than 25 years old, their disclosure was required by ORS 192.495. Some of the records were protected by FERPA, but others were not. As to the records not protected by FERPA, ORS 419A.255 describes specific circumstances in which the records may be disclosed, and otherwise prohibits disclosure. Lapse of time is not a circumstance permitting disclosure under ORS 419A.255, and the specific prohibition on disclosure in 419A.255 controls the general rule of disclosure of old records codified at ORS 192.495. Consequently the petition was denied.
September 10, 2009, Will Rogers. The editor of a student-run newspaper requested records from Oregon State University explaining why a number of the newspaper's distribution bins had been removed from their campus locations. OSU estimated that the required fee, after a 25% discount, would be $466.50, and declined to waive the remaining amount of the fee. The decision was reasonable under the totality of the circumstances presented. The appropriate inquiry is whether a public body's fee waiver decision impedes the policies favoring disclosure of records to the extent that the decision cannot be said to reflect a lawful result under the public records law. In general, fee waiver decisions should continue (1) the character of the public interest in the particular disclosure; (2) the extent to which the fee impedes that interest; and (3) the extent to which a waiver would burden the agency. Other considerations may be appropriate in any given case. The Attorney General's role is not to weigh the relevant considerations anew, but to determine whether a state agency abused its discretion by acting unreasonably. Considering the three enumerated factors, OSU's decision was not an abuse of discretion.