Attorney General’s Public Records and Meetings Manual 2014 – Public Records Law Appendix C

Summaries of Oregon Appellate Court Decisions on Public Records

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. These case summaries refer to the ORS cites in effect at the time of the court decision.

To find references to these cases in the manual, search for the first party name.

MacEwan v. Holm, et al., 226 Or 27, 359 P2d 413 (1961)

This case, decided 12 years before enactment of the present Public Records Law, is nevertheless perhaps the leading case in terms of the approach the Oregon courts take with respect to the public’s “right to know.” The court stated:

Writings coming into the hands of public officers in connection with their official functions should generally be accessible to members of the public so that there will be an opportunity to determine whether those who have been entrusted with the affairs of government are honestly, faithfully and competently performing their function as public servants.* * *

And the public interest in making such writings accessible extends beyond the concern for the honest and efficient operation of public agencies. The [information] * * * may be sought by persons who propose to use it for their own personal gain. Thus they may wish to obtain names and addresses for use as a mailing list, or the record of transfers of property to conduct a title insurance plant.*** The data gathered by government are available to its citizens for such private purposes.

226 Or at 38-39.

In balancing the interests referred to above, the scales must reflect the fundamental right of a citizen to have access to public records as contrasted with the incidental right of the agency to be free from unreasonable interference. * * * [T]he burden is cast upon the agency to explain why the records sought should not be furnished.

226 Or at 46 (emphasis added).

In the particular case, it was held that records “in a raw or tentative state” preliminary to the making of a final report were subject to disclosure.

Papadopoulos v. State Board of Higher Education, 8 Or App 445, 494 P2d 260 (1972). (This case was decided under predecessor public records laws.)

The Court of Appeals held that a report on the School of Science at the University which was prepared by faculty from out-of-state schools was a public record subject to disclosure despite claim of acting president that there was an understanding with the faculty that the report would be confidential. The evidence indicated that it contained no “confidential personal information.”

Stivahtis v.Juras, 13 Or App 519, 511 P2d 421 (1973). (This case was decided under predecessor public records laws.)

Representative suit brought by plaintiff on behalf of all public assistance recipients of Oregon. Plaintiffs sought a declaratory judgment that, pursuant to ORS 192.030, a public assistance recipient may have access to all records maintained by the Public Welfare Division that pertain to the recipient. The court held that despite special confidentiality statutes, disclosure of a recipient’s file to the recipient is required by the Public Records Law. The court held the confidentiality statutes, ORS 411.320 and ORS 418.130, were enacted to protect the recipient from embarrassment and harassment. Because disclosure is the rule, the confidentiality statutes cannot be given any broader reading than necessary to carry out their function. This case departs from the general rule that the identity of the requester is irrelevant. (ORS 192.030 was repealed by Or Laws 1973, ch 794, § 34.)

Turner v. Reed, 22 Or App 177, 538 P2d 373 (1975).

Plaintiff sought 48 documents pertaining to his incarceration. The court held that some documents could be exempt by their nature, but defendant, Department of Corrections, must plead and prove each exemption. Reports of psychiatric examinations, expressed in the professional’s own words, are exempt because disclosure could adversely affect the future functioning of the division. ORS 192.500(2)(d), relating to the records of the Corrections Division.

Each document, the court said, must be examined to see if some nonexempt material could be excised and disclosed. ORS 192.500(3). The court concluded that the recommendations of the Parole Board were only “advisory” pending agency action and thus exemptible. This exemption encourages frank intra-agency communications. ORS 192.500(2)(a). Documents regarding plaintiff’s marriage based on conversations with his wife were of little public interest and the need for confidentiality in order to procure this kind of information in the future was overwhelming. The court exempted this information pursuant to ORS 192.500(2)(d). (Although these records were apparently also exempt under ORS 192.500(2)(c), and other exemptions may have been applicable to other records, defendant asserted only ORS 192.500(2)(a) and (d).)

Reports of plaintiff’s activities while on parole were purely factual and thus not exempt from disclosure under ORS 192.500(2)(a). Some parole reports had been disclosed and others retained. The court found the only difference between these documents to be that disclosure of the previously retained reports might embarrass public officials. The reports were ordered disclosed.

Sadler v. Oregon State Bar, 275 Or 279, 550 P2d 1218 (1976)

Plaintiff sought state and county bar records pertaining to an attorney’s professional and election-related conduct. A request for an order releasing the data was granted by the Attorney General. The court found the records not exempt under ORS 192.500(2)(c), the exemption for information submitted in confidence.

The court stated that there was no evidence that anyone who had complained to the bar about the attorney did so with the understanding that the information would be held in confidence. A request for and promise of confidentiality are requirements of the ORS 192.500(2)(c) exemption.

Addressing a separation of powers issue, the court held that the Public Records Law does not unreasonably encroach upon the judicial function of disciplining lawyers.

Jensen v. Schiffman, 24 Or App 11, 544 P2d 1048 (1976)

Plaintiff sought release of a county sheriff’s report of an investigation into allegations of misconduct in a city police department. The trial court found the report exempt from disclosure by ORS 192.500(1)(c) because the report was compiled for a criminal investigation. The Court of Appeals reversed. No charges had been filed, nor were any likely to be filed. The criminal investigation exemption does not automatically expire in such a case, but the court then must determine whether the purpose of the exemption has terminated, and to the extent it has not, apply a balancing test between the public interest in disclosure and interference with continuing criminal justice purposes.

Penrod v. Oregon State Penitentiary, 35 Or App 319, 581 P2d 124 (1978)

Prisoners have access to their disciplinary records pursuant to ORS 192.420.

Morrison v. School District No. 48, 53 Or App 148, 631 P2d 784 (1981)

A school district resisted disclosure of its substitute teacher roster. In affirming the trial court, the Court of Appeals ordered disclosure notwithstanding defendant’s assertions: (1) that the roster was personal information disclosure of which would constitute an unreasonable invasion of privacy, and (2) that the information was submitted in confidence to the district. The court also rejected an amicus argument that the public employee collective bargaining statute, when read along with ORS 192.500, impliedly prevented disclosure.

The roster, the court said, did not qualify under the personal information exemption, ORS 192.500(2)(b), because one’s name and position as a substitute teacher was not the type of information normally kept secret from strangers. Moreover, even though plaintiff probably wanted to use the roster in a collective bargaining context, the identity of the plaintiff is irrelevant. The statute speaks of “public disclosure,” and thus plaintiff’s identity and purpose for seeking disclosure were not pertinent.

The court held that defendant must establish that the information was submitted in confidence, and not merely later decided to be confidential, to be exempt under ORS 192.500(2)(c). Lastly, the amicus brief failed to persuade the court because the disclosure statute contains two specific labor relations exemptions and, therefore, no implied exemption could be read into the law.

Lane County School District v. Parks, 55 Or App 416, 637 P2d 1383 (1981)

Plaintiff sought the school district’s substitute teacher roster. Defendant school district raised several points addressed in Morrison v. School District No. 48 (see above) and followed here. Defendant also argued that the roster was information compiled or acquired for litigation, ORS 192.500(1)(a). The court agreed with the trial court’s finding that the roster was not created because of any ongoing or expected litigation, and held that the litigation exemption applies only to records “compiled or acquired by the public body for use in” existing or expected litigation.

Kotulski v. Mt. Hood Community College, 62 Or App 452, 660 P2d 1083 (1983)

The college sought to exempt from disclosure, under ORS 192.500(2), the addresses of its part-time faculty. The court found it necessary only to apply the first part of the inquiry set out in Morrison v. School District No. 48 (see above), and held that the defendant here had not established that the requested information is “information of a personal nature.” The court found that one’s address is not information that “normally would not be shared with strangers” because addresses are commonly listed in telephone directories, printed on checks and provided to merchants. Furthermore, they appear on driver’s licenses and other identification that is routinely shown to strangers. The college also argued that the addresses were exempt as “information submitted to a public body in confidence.” The court held that evidence that the addresses were not disclosed to students or insurance companies or booksellers who request them and that the college would honor requests not to disclose telephone numbers did not establish that the addresses of the part-time faculty were given in confidence. The court also held that plaintiff’s judgment was more favorable than defendant’s offer of a one-time inspection of the records, which would not have resolved the issue that the records were public records. Therefore, an award of attorney fees and costs was required.

Smith v. School District No. 45, 63 Or App 685, 666 P2d 1345 (1983)

School district provided record of its hearing but resisted disclosure of hearing record of another probationary teacher and minutes of contract renewal meeting. The district finally furnished all records before trial. Court of Appeals reversed in part holding that (1) ORS 192.420 creates a right of access to public records that is not dependent on the requester’s need or motivation; (2) there was no evidence to show that plaintiff’s request was unduly burdensome; (3) a public body may not refuse to produce records subject to inspection just because the requester already possesses them, and the trial court could not properly refuse to declare that the records were public and subject to disclosure; (4) the statutory litigation exemption is limited; (5) ORS 192.490(3) requires the award of attorney fees so long as a statutory proceeding was brought and the plaintiff prevails with respect to his or her claim; and (6) the trial court’s refusal to award attorney fees for violation of the Public Meetings Law was discretionary and the court’s refusal was not an abuse of discretion.

Pace Consultants v. Roberts, 297 Or 590, 687 P2d 779 (1984)

Names and addresses of employers against whom unlawful employment practice complaints are pending under ORS 659.040, whether on ledger cards or actual complaint forms, are not exempt from disclosure by the “investigatory information exemption,” ORS 192.500(1)(h).

Ogden v. Bureau of Labor, 68 Or App 235, 682 P2d 802 (1984)

Nondisclosure under ORS 192.500(l)(h) of investigatory information gathered by bureau in an employment discrimination case is justified as to the public generally but not as to parties directly involved in the dispute.

Ogden v. Bureau of Labor, 299 Or 98, 699 P2d 189 (1985)

Court could not decide question of discovery and public records on appeal.

State ex rel KOIN-TV, Inc. v. Olsen, 300 Or 392, 711 P2d 966 (1985)

Trial judge in defamation action did not abuse his discretion in denying television station’s motion that it be permitted to copy videotape of defendant’s deposition, after trial in which videotape was played to jury in open court, marked as an exhibit and received in evidence. If Public Records Law applies to the courts, the television station’s writ must be dismissed because that law provides a plain, adequate and speedy remedy in the ordinary course of the law. If the law does not apply, the television station cannot prevail on a claim of right to copy based on that law. Court assumes, arguendo, that the law does not apply to courts.

Bay Area Health District v. Griffin, 73 Or App 294, 698 P2d 977 (1985)

Plaintiff, a “public body” within the meaning of the Public Records Law, brought a declaratory judgment action to determine whether it was required to disclose a certain public record, citing the internal advisory communications exemption, ORS 192.500(2)(a). The record was a portion of a consultant’s report of a study which included interviews with medical and hospital staff members about operating room functions, and a review of data on operating room utilization and procedures. In determining whether, in this instance, the public interest in encouraging frank communication clearly outweighed the public interest in disclosure, the court held that because there was no evidence that the nonfactual information resulted from “frank communication,” the court would affirm the trial court’s order to disclose.

American Federation of State, County and Municipal Employees, Council 75 v. City of Albany, 81 Or App 231, 725 P2d 381 (1986)

Plaintiff sought a declaratory judgment that the social security numbers of city employees were not exempt from disclosure and an injunction ordering the city to produce them. The trial court found that federal law prohibited disclosure, but that state law did not exempt the social security numbers from disclosure as information of a personal nature or as information submitted in confidence. The Court of Appeals upheld the trial court with respect to personal privacy, ORS 192.500(2)(b), and confidential disclosure by citizens, ORS 192.500(2)(c), but reversed on the federal law question. The court held that social security numbers of government employees provided to government as an employer, not as a governmental entity, are not prohibited from disclosure under federal law. Therefore, disclosure is not prohibited under the state law exemption that incorporates federal law exemptions, ORS 192.500(2)(g).

Portland Adventist Medical Center v. Sheffield,303 Or 197, 735 P2d 371 (1987)

Plaintiff responded to a notice from the Multnomah County Assessor to show cause why some of plaintiff’s properties should not be added to tax rolls. Plaintiff requested that the information submitted be kept confidential. When the assessor refused, plaintiff brought a declaratory judgment action in the tax court. The tax court dismissed the complaint. The Supreme Court affirmed, concluding that absent specific legislative authorization to keep particular information confidential, the assessor must disclose it, even if the legislature had expressed a policy of keeping this type of information confidential. Moreover, that information is exempt from obligatory disclosure does not foreclose its voluntary disclosure.

Coos County v. Oregon Department of Fish and Wildlife, 86 Or App 168, 739 P2d 47 (1987).

Plaintiff requested individual questionnaire responses. The questionnaire had been sent by the Oregon Department of Fish and Wildlife to fish and wildlife biologists, to solicit their ratings of the effectiveness of the Oregon Forest Practices Act. The department contended that the responses were exempt from disclosure as internal advisory communications under ORS 192.500(2)(a). After reviewing the requested documents in camera, the trial court ordered disclosure. The Court of Appeals affirmed without opinion, 83 Or App 696, 732 P2d 961 (1987), and then on reconsideration adhered to the same result. It was undisputed that the questionnaire responses were communications within a public body, at least in part advisory and related to other than purely factual matters. The department already had disclosed summaries of the questionnaire responses but refused to disclose the responses themselves. The court concluded that the “public interest in the disclosure of public records cannot be satisfied by the ‘disclosure’ of a summarizing document, regardless of whether a summary satisfies the individual need of the requesting party.” 86 Or App at 172.

Additionally, the court held that any “chilling effect” that disclosure of the information might have on future intra-agency communications because of embarrassment to the agency and its employees is insufficient, by itself, to justify nondisclosure under the internal advisory communications exemption.

State ex rel Frohnmayer v. Oregon State Bar, 307 Or 304, 767 P2d 893, aff’d 91 Or App 690, 756 P2d 689 (1989)

The Oregon State Bar refused to produce materials for the inspection of counsel for a lawyer who was the subject of bar disciplinary proceeding. Counsel petitioned the Attorney General to review those records to determine whether they were exempt, but the bar declined to provide the records to the Attorney General. The court held that the Oregon State Bar is a “state agency” subject to the Public Records Law. The court also held that the Attorney General’s role in enforcing the Public Records Law in this context did not violate Article III, section 1, of the Oregon Constitution (separation of powers), and that the application of the Public Records Law here did not unduly interfere with the court’s function in regulating the legal profession in violation of Article VII, section 1.

City of Portland v. Rice,308 Or 118, 775 P2d 1371 (1989)

The defendants had appealed from a declaratory judgment that the public records they sought from the Portland Police Bureau’s Internal Investigation Unit (IIU) are exempt from disclosure under ORS 192.501(13), the exemption for documents supporting a “personnel discipline action.” The court held that where no discipline was imposed as a result of the IIU’s inquiry, the “personnel discipline action” exemption does not apply.

Guard Publishing Co. v. Lane County School Dist., 96 Or App 463, 774 P2d 494 (1989), rev’d on other grounds 310 Or 32, 791 P2d 854 (1990)

Defendant school district denied plaintiff publisher access to names and addresses of replacement coaches during a teacher’s strike. The court held that the names of those coaches were not exempt from disclosure as “personal information”; public employees are not anonymous or entitled to be. Coaches, however, treated their home addresses as personal and private outside the context of and before the public records request, and submitted those addresses to the district in confidence. Moreover, the evidence showed that several coaches were subjected to harassment, thus demonstrating that disclosure of their addresses would constitute an unreasonable invasion of privacy. No public interest required the disclosure of their home addresses. Accordingly, the court held that those addresses were exempt under ORS 192.502(2).

State ex rel Oregon Television, Inc. v. Prophet, 97 Or App 525, 776 P2d 592 (1989).

Plaintiff obtained an alternative writ of mandamus compelling defendants either to produce certain public documents that the district attorney had under the Public Records Law or to show cause why they need not do so. After a hearing, defendant produced the documents. The trial court then denied plaintiff’s petition for costs, disbursements and attorney fees since the action had not been brought under the Public Records Law.

Jordan v. Motor Vehicles Division, 308 Or 433, 781 P2d 1203 (1989)

Plaintiff sought a citizen’s home address on vehicle registration records held by defendant. Defendant argued that the information was exempt under the personal information exemption, ORS 192.502(2). The court agreed with DMV. It held that a person’s home address was information relating to a specific individual and, therefore, “information of a personal nature.” Under the facts presented, disclosure of the information would allow the plaintiff to harass the citizen to an extent that an ordinary reasonable person would find highly offensive. Disclosure, therefore, would constitute an “unreasonable invasion of privacy.” Plaintiff demonstrated no overriding public interest in disclosure. Therefore, the information was exempt under ORS 192.502(2).

Guard Publishing Co. v. Lane County School Dist., 310 Or 32, 791 P2d 854 (1990).

Publishing company sought declaratory judgment that names and addresses of replacement teachers serving as coaches during teachers’ strike were matter of public record subject to disclosure. The court held that the information is not exempt from public disclosure absent an individualized showing of justification. Here, the district’s blanket policy of nondisclosure is contrary to the legislative intent of the Public Records Law, which strongly favors disclosure. The district must consider each request for an exemption from disclosure on its own merits, and give the party requesting inspection of public records a reasonable opportunity to make a showing which would entitle the party to disclosure. Reversed and remanded, with instructions to determine and award appropriate attorney fees to the publishing company.

AA Ambulance Co., Inc. v. Multnomah County, 102 Or App 398, 794 P2d 813 (1990)

Plaintiff sought access to documents in the possession of an out-of-state consultant that was performing a study for the county regarding emergency and medical ambulance services. The documents were allegedly given to the consultant by ambulance providers, “with the understanding that they would be kept confidential.” The county argued that the documents were public records only because its contract with the consultant said that the county was entitled to their use, but that the contract also limited the county’s access to those documents because of their confidentiality. The court held that, even assuming the documents were public records only because of the terms of the contract, “the contract, in and of itself, can[not] create an exception” to the Public Records Law. The court found that the county had not established that the elements necessary for the exemption for records submitted in confidence, ORS 192.502(3), had been met.

Morse Bros., Inc. v. ODED, 103 Or App 619, 798 P2d 719 (1990)

Plaintiff requested ODED to produce certain records and stated that an immediate response was necessary. Two days later, after being informed that the agency was referring the request to the Attorney General’s office, the plaintiff petitioned the Attorney General for an order requiring ODED to produce the records. Two days later, the Assistant Attorney General representing ODED informed plaintiff’s attorney that she would not be able to respond for several days because she needed to obtain information and that the petition to the Attorney General was premature since the agency had not denied the records request. That same day plaintiff filed an action in circuit court. The Court of Appeals found that the plaintiff had not allowed the agency the opportunity to review the requested records and to act on that request before petitioning the Attorney General. Because the plaintiff brought the proceeding in circuit court before the Attorney General had taken any action on the petition, and before the Attorney General was required to act, the court held that the trial court should have dismissed the complaint.

Davis v. Walker, 108 Or App 128, 814 P2d 547 (1991)

Plaintiff appealed an order denying her request for an injunction ordering the Portland Police Bureau to disclose public records, to provide her an opportunity to inspect and copy the original records and to prohibit the bureau from charging fees in excess of its actual cost for copying the records. Plaintiff also sought attorney fees. The court held, under ORS 192.440(3), that the fees charged in accordance with the bureau’s fee schedule were not reasonably calculated to reimburse the bureau for its actual costs in furnishing edited copies of the records to plaintiff, because the bureau had failed to show that its fee schedule was based on an evaluation of the bureau’s actual costs in making public records available. The court upheld the bureau’s regulation permitting inspection of only edited copies of the bureau’s records as reasonably necessary for the protection of the records and to prevent interference with the bureau’s duties, under ORS 192.430(2). Because plaintiff prevailed in her suit challenging the fees charged by the bureau and other bureau actions in the case, she was entitled to attorney fees under ORS 192.490(3).

Marks v. McKenzie High School Fact-Finding Team, 319 Or 451, 878 P2d 417 (1994).

Plaintiffs sought certain records of a fact-finding team that had been appointed by a private nonprofit group at the request of the McKenzie School District to investigate problems at McKenzie High School. The Oregon Supreme Court reversed the Court of Appeals’ determination that the fact-finding team was a commission of the school district and set out six factors that are relevant to determine whether an entity is the “functional equivalent” of a public body. Those six factors are: 1) The entity’s origin  — was it created by government or was it created independently? 2) The nature of the function(s) assigned and performed by the entity ― are the functions traditionally performed by government or are they commonly performed by a private entity? 3) The scope of authority granted to and exercised by the entity ― does it have authority to make binding decisions for the government? 4) The nature and level of governmental financial and nonfinancial support. 5) The scope of governmental control over the entity. 6) The status of the entity’s officers and employees ― are they public employees? The court concluded that only the first two factors weighed in favor of the fact-finding team being the functional equivalent of a public body and, therefore, the fact-finding team was not subject to the Public Records Law.

Laine v. City of Rockaway Beach, 134 Or App 655, 896 P2d 1219 (1995)

Plaintiffs sought certain records from the city relating to the operation of the fire department prior to 1991. The city charter authorized the city council to appoint a fire chief. The city appointed a fire chief and directed him to organize a fire department. The city purchased the equipment of the Rockaway Rural Fire Protection District in 1943, assumed its debts and liabilities and provided services in the area previously served by the district. The city budgeted for the operation of the fire department and had the authority to ratify the election of the fire chief, who was responsible to the mayor and city council. The city owned the fire hall, maintained it, paid the insurance on the trucks and workers’ compensation insurance on the voluntary firefighters, paid a nominal salary to the fire chief, his assistant and a secretary-treasurer, and paid a nominal amount to volunteers as “call pay.” The city, by ordinance, gave the fire department various powers. The city also contracted with other jurisdictions to provide them with fire protection services. In 1991, the fire department incorporated as a public benefit nonprofit corporation that has contracted with the city to provide fire protection services. The court applied the six factors set out in Marks v. McKenzie High Schl. Fact-Finding Team and determined that the first five factors weighed in favor of the fire department being the functional equivalent of an agency or department of the city. Though the plaintiff did not request records from the fire department after 1991, neither the plaintiff nor the court seemed to question that, after that date, the fire department was no longer the functional equivalent of a public body.

Hunter v. Farmers Insurance Company, 135 Or App 125, 898 P2d 201 (1995)

The Oregon Court of Appeals upheld the trial court’s exclusion of the testimony of a county community corrections officer who testified on the basis of a presentence report and associated notes. As amended in 1989, ORS 137.077 specifies the conditions under which either a presentence report or information contained in such a report may be disclosed by specified persons. Information contained in a presentence report may not be disclosed through trial testimony unless that disclosure falls within one or more of the situations specified in the statute.

Premier Technology v. State of Oregon, 136 Or App 124, 901 P2d 883 (1995)

Plaintiff and the state executed a video lottery terminal lease agreement conditioned upon the completion of a security investigation. After the state gave notice of termination, plaintiff brought a breach of contract action. Plaintiff moved to compel production of documents relating to the security investigation of other terminal manufacturers who were awarded contracts with the state. The trial court denied the motion on two grounds, including exemption from disclosure under the Public Records Law. The Court of Appeals affirmed the ruling, stating that the information was exempt from disclosure under ORS 192.502(3) because 1) it was submitted voluntarily and in confidence, 2) the agency had obligated itself in good faith not to disclose the information 3) the information was of the type that reasonably would be considered confidential, and 4) the public interest would suffer because disclosure would discourage potential contractors, thereby reducing competition. The court declined to decide whether information contained in exempt public records was privileged, and therefore not discoverable under ORCP 36B and OEC 509.

Gray v. Salem-Keizer School District,139 Or App 556, 912 P2d 938, rev den 323 Or 265, 918 P2d 846 (1996)

An unsuccessful applicant for teaching positions with Salem-Keizer School District requested copies of two “negative” employment references in his job application file. The district denied the request, asserting they were exempt from disclosure under the Public Records Law as information submitted in confidence, ORS 192.502(3). The Court of Appeals held that the references were not exempt from disclosure because their substance could be disclosed without identifying their sources. In reaching its conclusion, the court considered two competing views of the public interest.

The district’s view of the public interest in nondisclosure was that receiving candid references on applicants is essential, and therefore confidentiality was required. The district also asserted that the public interest in employing suitable teachers and administrators would suffer because of the potential chilling effect of subjecting to disclosure candid information provided by former employers or others about applicants for employment. The applicant argued that without an opportunity to verify and possibly challenge the information contained in the reports, an individual could be denied employment based upon false accusations or discriminatory reasons, thereby harming the public interest in ensuring unbiased and informed hiring decisions by public agencies.

After considering the two views, the court concluded that the public interest in reducing the potential for hiring decisions based on secret, unrebuttable allegations or innuendo would be served by disclosing the references, provided that the source-identifying information was redacted. According to the court, eliminating the source-identifying information would provide sufficient protection of confidentiality for future sources who submitted candid employee evaluations.

The court also held that the applicant was entitled to attorney’s fees because the district did not provide the applicant with the other nonexempt documents in his application file within seven days of the order of the Marion County District Attorney, as mandated by ORS 192.490(3).

Lane Transit District v. Lane County, 146 Or App 109, 932 P2d 81 (1997), rev’d in part on other grounds 327 Or 161, 947 P2d 1217 (1998)

Citizens for Responsible Public Transit (Citizens) filed a proposed initiative measure that would alter the salary of plaintiff’s general manager and revise procedures for salary increases. Lane Transit District (district) sought declaratory and injunctive relief, arguing that the measure was administrative in nature and therefore not subject to the initiative power. The trial court entered an order requiring Citizens to pay the district’s “labor costs” for responding to Citizens’ discovery requests during the litigation. Citizens appealed the order. The district argued to the Court of Appeals that ORS 192.440 allowed the custodian of public records to establish fees for its “actual cost” in producing records to a requesting party. The Court of Appeals reversed the trial court, finding that Citizens did not make a public record request to the district, but filed a “garden-variety” request for production of documents pursuant to ORCP 43. The court found no authority to apply the fee provisions of the Public Records Law to a discovery request simply because the party is a public body.

Oregon AFSCME Council 75 v. Oregon Department of Administrative Services, 150 Or App 87, 945 P2d 102 (1997)

The Department of Administrative Services (DAS) received a records request from a television reporter for the names, titles and workstations of all state employees who had used 240 hours or more of sick leave in a certain period. AFSCME, the public employees’ union, and a public employee sued the state seeking declaratory and injunctive relief to prevent disclosure of the information.

DAS argued that the information to be disclosed, which contained no medical information, is not exempt from disclosure under ORS 192.502(2) (personal privacy). Alternatively, DAS contended that even assuming the information that an individual had used more than 240 hours of sick leave could come within the exemption under certain circumstances, the court erred in applying a blanket exemption absent an individualized showing of justification for exemption. Plaintiffs responded that disclosure of individual sick leave information is always an unreasonable invasion of privacy.

The court did not reach the merits of the arguments. Rather, the court stated that for a court to entertain an action for declaratory relief, the complaint must present a justiciable controversy. In this matter, because plaintiffs asked that the records sought by the television reporter be declared exempt and enjoined from disclosure under ORS chapter 192, the reporter seeking the information had the right to present proof to try to defeat the claimed exemption. Failure of plaintiffs to join the television reporter in the suit therefore deprived the court of jurisdiction.

The court raised, but did not decide, the additional jurisdictional issue of whether public employee unions had representational standing to assert the rights of members.

Oregonian Publishing Company v. Portland School Dist., 144 Or App 180, 925 P2d 591 (1996), modified 152 Or App 135, 952 P2d 66 (1998), aff’d on other grounds 329 Or 393, 987 P2d 480 (1999)

Plaintiff sought to compel the Portland School District to provide investigation records of alleged misuse and theft of district property. The district first claimed that plaintiff’s action was not timely filed, arguing that ORS 192.450(2) requires a private individual to initiate proceedings within 14 days of the order denying disclosure. The Court of Appeals concluded that the 14-day limit applied only to public bodies.

The district then argued that the records were exempt from disclosure under 192.501(12) (materials supporting disciplinary action). The court concluded that since the records related to alleged misuse and theft of public property by public employees, the public interest in disclosure was significant and the exemption did not apply. Also, while the purpose of the exemption is to protect a public employee from ridicule for having been disciplined, the court noted that the publicity surrounding the situation made it questionable whether disclosure would intrude on employee privacy. The district also argued that the records were exempt under ORS 192.502(2) (personal privacy). The court concluded that the information was not of a “personal nature” as the term is used in the exemption statute, and that disclosure would not constitute an unreasonable invasion of privacy.

Finally, the district argued that the records were exempt from disclosure under ORS 192.502(9) (records confidential under other Oregon law) and ORS 342.850(8) (granting authority to school boards to regulate access to teacher personnel files). On reconsideration, the court held that testimony of the investigating officer at an unemployment hearing, where substantially all information contained in the report was disclosed and available to the public via a written transcript, waived the exemption under ORS 342.850(8) and ORS 192.502(9).

The Oregon Supreme Court affirmed the Court of Appeals’ result, but on different grounds. The Supreme Court concluded that ORS 192.502(9) and 342.850(8) simply did not apply to the investigation report because that report did not address any individual employee’s terms and conditions of employment or recommend any employment decision regarding any individual employees. The court also observed that the report was prepared by school police who are not involved in personnel evaluations. Noting that “the district cannot restrict access to public records simply by placing the records in a personnel file or using a label, such as ‘Personnel Investigation,’” the court concluded that the investigation report at issue was not the type of document the legislature intended to exempt from disclosure as part of a teacher personnel file.

(Note: The Court of Appeals has confirmed that it will adhere to the analysis of ORS 192.502(2) and 192.501(12) it applied in this case because the Supreme Court’s opinion did not call that analysis into question. City of Portland v. David Anderson and the Oregonian, 163 Or App 550, 988 P2d 402 (1999).)

Springfield School Dist. #19 v. Guard Publishing Company, 156 Or App 176, 967 P2d 510 (1998).

The school district sought to prevent disclosure of documents contained in personnel files related to the misconduct investigation of a principal and assistant principal. The district claimed the documents were exempt from disclosure under ORS 192.502(9) and ORS 342.850(8) (school district shall adopt rules governing access to personnel files). Referring to Oregonian Publishing Co. v. Portland School Dist. (see above), the court held that ORS 342.850(8) comes within the catchall exemption of ORS 192.502(9), and that confidential personnel records held in school district files are exempt from public disclosure.

Plaintiff contended that the district’s disclosure of general information about the investigation and subsequent action altered the confidential nature of the documents in the personnel files. The court held that disclosure of some information contained in the personnel files does not convert all documents in the file into public information.

Plaintiff also claimed that the district waived any applicable exemption by publicly releasing the charging letters against the principal and assistant principal, which described in detail the district’s investigation and findings. The court held that the district waived its exemption from disclosure for documents that were based on the same factual circumstances as those publicly released by the district, but that the context of other documents in the personnel files was sufficiently different so that the school district did not waive the exemption for those documents.

City of Portland v. David Anderson and The Oregonian, 163 Or App 550, 988 P2d 402 (1999)

Defendants sought to compel the City of Portland to provide documents pertaining to an investigation and disciplinary action against a police captain. The investigation arose from allegations of conducting private business on police time, improper use of police telephones, improper use of a police office, and off-duty use of an escort service allegedly involving prostitution. The captain ultimately received discipline only for his involvement with the escort service.

The Court of Appeals held that the records were not exempt from disclosure under ORS 192.501(12) (materials supporting disciplinary action). With regard to documents relating to the allegation for which the officer actually received discipline, the court concluded that under the circumstances the public interest required disclosure. The court reasoned that the individual was a high-ranking police officer and that the public therefore has a legitimate interest in confirming his integrity and ability to enforce the law evenhandedly. Because information regarding the officer’s use of an escort service that may serve as a front for prostitution bears materially on his integrity and on the risk that its compromise could affect the administration of his duties, the public interest compels disclosure.

The court also held that the records were not exempt from disclosure under ORS 192.502(2) (personal privacy). Because the records did not affect the individual exclusively and were not peculiar to his private concerns, the court concluded that they did not constitute information of a personal nature. The court further observed that even if the records did constitute personal information, their disclosure would not unreasonably invade individual privacy because the conduct involved directly bears on the possible compromise of a public official’s integrity in the context of his public employment.

Hood Technology Corporation v. OR-OSHA, 168 Or App 293, 7 P3d 564 (2000)

Plaintiff sought disclosure of the identity of a person who filed a false complaint against plaintiff, alleging a violation of the Oregon Safe Employment Act. The court held that the trial court erred in granting summary judgment to defendant on the basis that the person’s identity was exempt from disclosure as a confidential submission under ORS 192.502(4). To satisfy the exemption, the defendant had to show that the complainant, in fact, submitted information in confidence. Because the person made the complaint and gave his or her name, address and telephone number before the defendant asked about confidentiality, the court concluded that competing inferences could be drawn as to the person’s subjective understanding as to confidentiality when initially providing the information. Either the complainant provided the information without regard for confidentiality, requesting it due only to the defendant’s raising of the issue, or the complainant spoke with the intention and belief that his or her identity would remain confidential, and that belief was confirmed by the defendant’s inquiry. This issue needed to be determined by the trial court.

The court also concluded that judging whether disclosure of the complainant’s identity would cause harm to the public interest turns not on the truth or falsity of the complaint, but on the complainant’s good faith or bad faith in submitting the information. Disclosure of the identity of a person who acted in good faith is contrary to the public interest, even if the submitted information was false, while there is no public interest in protecting the identity of persons who “intentionally and knowingly make false complaints for malicious and vindictive/harassment purposes.”

Kluge v. Oregon State Bar, 172 Or App 452, 19 P3d 938 (2001)

Plaintiff, the subject of a formal disciplinary proceeding of the Oregon State Bar (OSB), requested disclosure of records related to that proceeding. The court held that the circuit court erred in relying solely on the bar’s description of the records, rather than reviewing the records in camera in order to determine whether they were exempt as internal advisory communications under ORS 192.502(1). The court also held that the materials submitted by the OSB were inadequate to demonstrate that the public interest in encouraging frank communications between officials and employees of public bodies clearly outweighs the public interest in disclosure because they merely asserted that disclosure of the records “would discourage frank communications within the OSB disciplinary process” and did not weigh the competing public interests in the disclosure of the records. Finally, unlike the type of categorical exemption for psychiatric reports contemplated in Turner v. Reed, 22 Or App 177, 538 P2d 378 (1975), the court concluded that there is nothing about OSB’s disciplinary records that would permit a balancing of the public interest in the disclosure based solely on the nature of the records. Instead, a balancing of the public interest “in the particular instance” requires consideration of the content of the records in question.

Oregonians for Sound Economic Policy v. SAIF, 187 Or App 621, 69 P3d 742 (2003)

ORS 656.702(1) provides that “[t]he records of the State Accident Insurance Fund Corporation [SAIF], excepting employer account records and claimant files, shall be open to public inspection.” Plaintiff sought SAIF’s disclosure of certain documents other than employer account records and claimant files. SAIF withheld some records on the ground that they were exempt from disclosure under provisions of the Public Records Law. Plaintiff brought a declaratory judgment action seeking disclosure of the records, and the trial court entered summary judgment in plaintiff’s favor. The Court of Appeals affirmed the trial court’s conclusions that the Public Records Law exemptions do not apply to requests filed pursuant to ORS 656.702(1) and that plaintiff was therefore entitled to the requested records. SAIF also contended that the trial court should have dismissed the declaratory judgment action because the judicial review provisions of the Public Records Law constitute the exclusive means of obtaining an order requiring disclosure of a public record. The Court of Appeals rejected that argument, concluding that ORS 656.702 creates an additional, independent mechanism to obtain records from SAIF that is enforceable through a declaratory judgment action.

In Defense of Animals v. OHSU, 199 Or App 160, 112 P3d 336 (2005)

A nonprofit public interest corporation, In Defense of Animals (IDA), filed suit for disclosure of records by OHSU’s Oregon Regional Primate Research Center (OHSU) and for a reduction of fees assessed for responding to its disclosure request.

The Oregon Court of Appeals held that names of OHSU staff were exempt from disclosure under ORS 192.501(31). IDA argued that disclosure would further the public interest in protecting animals used in medical research and had identified ways in which it would use the information. OHSU presented testimony that veterinarians had been threatened for their work with animals, that they feared attack, that some employees had requested that DMV withhold their information and OHSU not disclose their names or identifying information to the public.

The court held that, “even considering the presumption in favor of disclosure,” the public interest did not require disclosure of the names of staff members for two reasons.  Id. at 178.  First, the goal of ensuring proper treatment of animals at OHSU did not depend on disclosure of the names of specific staff members. Second, while OHSU had not produced evidence associating IDA with harassing or threatening activities, the general evidence presented with regard to such conduct “was sufficient to demonstrate a significant interest on the part of OHSU in nondisclosure.” Id. at 179.

The court also held that the names of drug companies for which OHSU conducted research, as well as the names of the experimental drugs being tested, were exempt under ORS 192.502(20), as sensitive business records of OHSU not customarily provided to business competitors. The court concluded that the exemption applies to medical, scientific and other research conducted at OHSU that constitutes a business activity of OHSU, with “business activity” being any activity conducted for commercial purposes or in a commercial manner. The court further interpreted the phrase “business competitors” to include both competitors of OHSU and competitors of companies that contract with OHSU to perform research. In particular, the names of companies that had contracted with OHSU to perform research and the names of the experimental drugs being tested by OHSU both fell under this unconditional exemption. Knowledge as to which research institutions companies utilize to test experimental drugs and the fact that testing is being done on animals is information that ordinarily would not be provided to the companies’ competitors. The research contracts between OHSU and the drug companies provided that information about the experimental drugs would be treated as proprietary.

IDA also claimed, in relation to a specific portion of requested records, that OHSU’s assessed fees did not meet the standard established by ORS 192.440(3), namely that they were not reasonably calculated to reimburse its actual costs in making the records available for review. The Public Records Law does not expressly provide for review of whether a public body’s fees are “reasonable.” However, the court held that, at least in the context of an action for declaratory or injunctive relief such as that filed by IDA, courts have jurisdiction to review the issue. Id. at 182-83. The court specifically did not decide whether the Attorney General and district attorneys have similar authority. Id. at 183.

In determining that OHSU’s fees were not reasonably calculated to reimburse its actual costs, the court found unconvincing the claim that review and redaction of requested records could be done only by professional staff. Id. at 185-86. It also considered relevant the fact that OHSU had calculated some personnel costs at overtime rates without showing why it could not have hired additional, perhaps temporary, staff at a regular rate of pay specifically to respond to a voluminous records request. Id. at 186.

Finally, the court also interpreted the “public interest test” relevant to the granting of a waiver or reduction of fees. Its conclusions in this regard are addressed in the discussion of Waiver or Reduction of Fees.

City of Portland  v. Oregonian Publishing Company, 200 Or App 120, 112 P3d 457 (2005)

The City of Portland filed suit in response to an order from the Multnomah County District Attorney to disclose records relevant to the investigation and discipline of a police officer who killed a civilian during a traffic stop. The Oregon Court of Appeals held that the records were not exempt from disclosure under ORS 192.502(1) as internal advisory communications. (The applicability of ORS 192.501(12) was not at issue.) The court specifically noted that the balancing test required by ORS 192.502(1) is weighted in favor of disclosure, with the public body withholding the records needing to prove that “the public interest in nondisclosure ‘clearly’ outweighs the interest in disclosure.” Id. at 124. The court identified several reasons why the city had not met is burden in relation to the records that had been requested by the Oregonian.

The city argued that the internal advisory exemption applied because members of the Portland Police Bureau would exercise greater candor and critical self-evaluation if they knew that their assessments would be used only to improve the performance of a particular employee or of the bureau as a whole. Recognizing that people are generally more candid when they know that their statements will remain confidential, the court stated that they “are also more likely to be vindictive, careless, or speculation [sic] – and therefore unreliable.” Id. at 125. The fact that the city had disclosed the description of events, findings, and discipline imposed prior to the newspaper making its request also contributed to the court’s decision that the exemption did not apply, as did the fact that the court found the supervisory assessments contained in the requested records to be “clinical and detached.”

The court described the incident underlying the investigation as “highly inflammatory and widely reported.” Id. at 125. While the city argued that the “high profile” nature of the case increased the need for confidentiality in order to encourage candor, the court gave greater weight to the idea that the case’s high profile made “the public’s need to have complete confidence that a thorough and unbiased inquiry has occurred * * * most urgent and compelling * * *.” Id. at 127.

Jury Service Resource Center v. Carson, 199 Or App 106, 111 n 2, 110 P3d 594 (2005), rev’d in part on other grounds, Jury Service Resource Center v. De Muniz, 340 Or 423, 429, 134 P3d 948 (2006).

Plaintiffs requested that court officials from Lincoln County and Marion County disclose to them their jury pool records, consisting of source lists, master lists, and term lists. When the county officials denied the requests, plaintiffs appealed to the Attorney General. The Attorney General denied the petitions, explaining that the requested records were exempt from disclosure. Defendants argued that the Public Records Law did not require disclosure because the ORS 192.502(9) creates an exemption for information that is confidential under other statutes. Under ORS 10.215, jury lists are confidential unless those lists are requested by a litigant pursuant to ORS 10.275, which was not the case here. 

The court declined to decide the issue of whether jury lists are “court records” for purposes of ORS 192.410(4). By the terms of ORS 192.410(4), the statute includes only those records in ORS 7.010, and does not include jury lists. However, the court concluded that ORS 10.215(1) prohibited disclosure because, if jury lists were not public records, ORS 10.215(1) directly prohibited disclosure. If jury lists were public records, ORS 192.502(9) prohibits disclosure of records under the Public Records Law that are exempt under other state statutes.

The Oregon Supreme Court agreed with the analysis of the Oregon Court of Appeals by stating that the Court of Appeals “did not err in rejecting plaintiffs’ arguments respecting the Public Records Law * * *.” 340 Or 429. However, the Oregon Supreme Court reversed the appellate court’s holding that the First Amendment to the United States Constitution required defendants to give plaintiffs full access to jury pool records, including source lists, master lists, and jury term lists.

Klamath County School Dist. v. Teamey, 207 Or App 250, 140 P3d 1152 (2006), rev den 342 Or 46 (2006).

The Klamath County School District filed suit in response to an order from the Klamath County District Attorney requiring disclosure of the reports of an investigation into allegations of mismanagement and misconduct by district employees. The circuit court reversed the order on grounds that the reports were exempt from disclosure under ORS 192.502(9) because they represented confidential attorney-client communications. The requesters appealed to the Court of Appeals, which affirmed the trial court.

On receiving the original allegations of wrongdoing, the school district had referred them to its attorney and requested advice about how to respond to them. The attorney informed the district that investigation of the allegations would be necessary before he could provide legal advice. The school board authorized the attorney to engage the services of an auditor and investigator to conduct the investigation. The investigators prepared reports of their factual findings, which the attorney forwarded to the school board. The attorney then met with the board to provide advice based on the reports. The reports were not made public, but the school district issued a press release stating that the allegations were not substantiated and that there was clear evidence of no wrongdoing.

In reaching its decision, the Court of Appeals confirmed that ORS 192.502(9), which exempts from disclosure “records or information the disclosure of which is prohibited or restricted or otherwise made confidential or privileged under Oregon law,” incorporates the attorney-client privilege established by OEC 503 (ORS 40.225). The court concluded that the record did not support the defendant’s contention that the attorney was hired primarily to investigate rather than to render legal service.

Partly in response to this decision, the 2007 legislature amended ORS 192.502(9) to narrow the availability of attorney-client privilege as an exemption to disclosure of factual information developed in response to allegations of public body wrongdoing. Or Laws 2007, ch 513.

Colby v. Gunson,224 Or App 666, 199 P3d 350 (2008)

Plaintiff requested from the state medical examiner a copy of the autopsy and laboratory test results arising from the investigation of the shooting death of an individual by a police officer. The medical examiner denied the request on the grounds that ORS 146.035(5) restricts disclosure of such reports to specified individuals, that plaintiff was not one of those individuals, and that ORS 146.035(5) is incorporated as an exemption to disclosure by ORS 192.502(9)(a), which exempts “[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential or privileged under Oregon law.” On plaintiff’s petition, the Attorney General issued a public records order upholding the agency’s position, and on review under ORS 192.450(2), the trial court affirmed.

The Court of Appeals reversed, holding that the agency had misconstrued the operation of ORS 146.035(5). That statute provides that specified persons “may examine and obtain copies of any medical examiner’s report, autopsy report or laboratory test report ordered by a medical examiner under ORS 146.117.” The court concluded that the statute does not “restrict” disclosure of the pertinent records to the specified individuals. The court construed the statute as instead granting those individuals an overriding right to inspect the records, even where the Public Records Law might otherwise excuse nondisclosure. The court listed the criminal investigatory exemption and the personal privacy exemptions as examples of provisions the right granted under ORS 146.035(5) might override.

The court also looked to former ORS 192.500(2)(h), a predecessor version of the state law incorporation statute, as context for its analysis. The court determined that “the statutes that prohibit or restrict disclosure of public records or make a record confidential or privileged are those that were listed in former ORS 192.500(2)(h) and those that were adopted in 1987 or subsequently.” The court reasoned that because “[t]hose statutes did not included ORS 146.035(5),” it does not fall within the scope of the current exemption. The court remanded to the trial court to “determine whether the requested record is exempt from disclosure under other parts of the Public Records Law.”

(Note: The 2009 Legislative Assembly responded to this case by enacting ORS 192.501(36), which exempts “[a] medical examiner’s report, autopsy report or laboratory report order by a medical examiner under ORS 146.117.” Or Laws 2009, ch 222, § 2.)

Port of Portland v. Oregon Center for Environmental Health, 238 Or App 404, 243 P3d 102 (2010).

The Court of Appeals concluded that an agreement between a number of public entities and private parties, all potentially responsible for costs associated with cleaning up the Portland Harbor, was protected by the lawyer-client privilege.  The court noted that the agreement, among other things, set out a formula according to which public bodies would share with private bodies the costs associated with the investigating and possibly litigating harbor cleanup issues.  The court concluded that the arms-length agreement between these potentially adversarial parties was a confidential communication intended to facilitate the provision of professional legal services. The court indicated that statutory provisions creating a privilege for some communications “[b]y the client or the client’s lawyer to a lawyer representing another in a matter of common interest” covers this “pact between members of the [Lower Willamette Group] to jointly undertake an investigation that is an initial step in the CERCLA process.”

Pfizer Inc. v. Oregon Dept. of Justice ex rel Kroger, 254 Or App 144, 294 P3d 496 (2012).

The Court of Appeals concluded that an order compelling the Department of Justice to withhold records sought by multiple public records requesters would not significantly affect the interests of those who requested the records.  Consequently, the requesters were not necessary parties in Pfizer’s action to prevent DOJ from disclosing public records.

The records at issue related to Pfizer and subsidiary Pharmacia’s joint promotion of the drugs “Bextra” and “Celebrex.”  Because the federal government had declined to prosecute Pfizer when striking a guilty plea deal with Pharmacia over its off-label marketing of Bextra, the court found as a matter of law that the records DOJ obtained from Pfizer and Pharmacia did not document criminal activity.  Based on sworn statements by Pfizer executives,  the court found that the bulk of the records documenting Pfizer and Pharmacia’s joint off-label marketing activities were trade secrets, and largely reversed summary judgment that had been entered in favor of DOJ.  The court did not consider the public interest to be relevant to its decision.