A. Who Has the Right to Inspect Public Records?

Under Oregon’s Public Records Law, “every person” has a right to inspect any nonexempt public record of a public body in Oregon.[1] This right extends to any natural person, any corporation, partnership, firm or association, and any member or committee of the Legislative Assembly.[2] However, a public body may not use the Public Records Law to obtain public records from another public body.[3] Similarly, a public official, other than a legislator, acting within an official capacity may not rely on the Public Records Law to obtain records, although the individual could do so in an individual capacity. This does not prevent a public body from sharing records with other public bodies; it merely prevents a public body from using Public Records Law as a mechanism to obtain the desired records.

Generally, the identity, motive, and need of the person requesting access to public records are irrelevant.[4] Interested persons, news media representatives, business people seeking access for personal gain, persons seeking to embarrass government agencies, and scientific researchers all stand on an equal footing.[5]

However, the identity and motive of the person seeking disclosure may be relevant in determining the weight of the public interest in disclosure, a factor that is relevant to some exemptions.[6] In addition, the identity and motive of the requester may be relevant to determining whether the public body should waive or reduce its fee in fulfilling the request.[7]

B.  Who is Subject to the Public Records Law?

1.  Public Bodies

The Public Records Law applies to any public body in this state.[8] A “public body” is broadly defined to include

every state officer, agency, department, division, bureau, board and commission; every county and city governing body, school district, special district, municipal corporation, and any board, department, commission, council, or agency thereof; and any other public agency of this state.[9]

This definition includes any state agency, which means “any state officer, department, board, commission or court created by the Constitution or statutes of this state.”[10]

Thus, all state and local government bodies are subject to the Public Records Law, including “public corporations” such as the Oregon State Bar,[11] the SAIF Corporation,[12] and OHSU.[13]

Generally, legislative records are public records subject to inspection. However, a person may not seek to enforce the Public Records Law with respect to legislative records during the period the legislature is in session and the 15 days immediately preceding the start of the session.[14]

Court records are also generally public records subject to inspection.[15]

2.  Private Bodies

On its face, the Public Records Law does not apply to private entities such as nonprofit corporations and cooperatives. However, if the ostensibly private entity is the “functional equivalent” of a public body, the Public Records Law applies to it.[16] Determining whether a private entity is the functional equivalent of a public body depends on the entity’s character and its relationship with government and government decision-making.[17] The following factors are usually relevant in making this determination:

• the entity’s origin (was it created by government or was it created independently?);
• the nature of the function(s) assigned and performed by the entity (are these functions traditionally performed by government or are they commonly performed by a private entity?);
• the scope of the authority granted to and exercised by the entity (does it have the authority to make binding decisions or only to make recommendations to a public body?);
• the nature and level of any governmental financial and nonfinancial support;
• the scope of governmental control over the entity;
• the status of the entity’s officers and employees (are they public employees?).[18]

Evaluating these factors generally depends on whether the policies underlying the Public Records Law require that the private entity’s records be available for inspection. For example, in concluding that a team charged by a school board with investigating a school’s operations was not a public body, the Oregon Supreme Court emphasized that the team could affect matters of public concern only through its report to the board; because that report would be available from the board under Public Records Law, the public would still have access to any information used in the board’s decisions.[19]

Analyzing the above factors, the following entities have been determined not to be the functional equivalent of a public body or of a state agency: the Citizens’ Utility Board;[20] Oregon Public Broadcasting;[21] and the Oregon Historical Society.[22]

Some entities might be the functional equivalent of a public body only with respect to functions that are governmental in nature; in such cases, only the records related to those functions will be subject to inspection.[23] For example, contracting with a large company to manage a significant government program might mean that the company’s records pertaining to the managed program are public records. But it does not mean that all of the company’s records are public records.[24]

As government “privatizes” various governmental functions, as the Legislative Assembly exempts state agencies from the application of various statutes, and as government is directed to perform various functions through contracts with private entities, numerous quasi-public entities are being created. The factors discussed above would be used to determine if a quasi-public entity is a public body with respect to its governmental functions.

Even if a private entity is not the functional equivalent of a public body, but contracts with a public body, its records may be obtained from the public body if the public body has custody of copies of the records.[25] In addition, a public body by rule or contract may require private entities with which it deals to make pertinent records available for public inspection. Records in a private entity’s possession may also be subject to disclosure where a public body actually owns the records.[26]

C. What Records Are Covered by the Law?

A “public record” is broadly defined to include

any writing that contains information relating to the conduct of the public’s business, including but not limited to court records, mortgages, and deed records, prepared, owned, used or retained by a public body regardless of physical form or characteristics.[27]

Despite this broad definition, not all public records are available for inspection through Public Records Law. As discussed later, many state and federal laws either prohibit public bodies from disclosing certain records, or give public bodies the discretion not to disclose. If a writing qualifies as a public record, the public body must either disclose it in response to a records request or assert an exemption from disclosure.[28]

1.  Writing

A “writing”  is also broadly defined to mean

handwriting, typewriting, printing, photographing and every means of recording, including letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, files, facsimiles or electronic recordings.[29]

This encompasses information stored on virtually any medium, including information maintained in “machine readable or electronic form.”[30] Examples of writings include paper documents, e-mails, electronic documents (e.g., Word, Excel, and PDF formats), photographs, and audio or video recordings.

Telephone voicemail messages are also writings, but public bodies are not required to retain these types of records.[31] However, if a records request for a voicemail message is received while the message is still available, the message should be retained until the records request is completed.[32]

The Public Records Law does not require public bodies to create new public records.[33] Nor does it require public bodies to disclose the reasoning behind their actions; answer questions about their records; analyze their records;[34] or perform legal research in order to identify records that are responsive to a request.[35]

However, a public body is required to retrieve pre-existing information, which includes electronic data stored in databases.[36] This obligation exists regardless of whether the public body has actually generated a report for its own use that contains the requested data. Information is not exempt from disclosure simply because it is stored electronically or because retrieving the data would require a public body to query its information systems in ways it otherwise might not.

The format the information is produced in may depend on what formats are available to the public body or software vendor through the specific information system at issue.[37] Electronic data must be provided “in the form requested, if available”; if the requested format is not available, then the data should be provided in the form it is maintained.[38] We note that the common SQL databases in use today readily allow the retrieval and export of specific information in the Excel compatible format that requesters often prefer.

Oregon law imposes specific requirements with respect to state agency’s information systems that are intended to ensure nonexempt information is readily accessible to public records requesters. For example, state agencies must use “machine-readable and open formats” and adhere to “data standards approved by the Chief Data Officer * * * to promote data interoperability and openness.”[39] And “[a] state agency’s use of proprietary software may not diminish the ability of the public to inspect and copy a public record.”[40]

2.  Prepared, Owned, Used, or Retained

Records need not have been prepared originally by the public body to qualify as public records.  If records prepared outside the government contain “information relating to the conduct of the public’s business,” and are “owned, used or retained” by the public body, the records are within the scope of the Public Records Law. For example, records obtained by a public body from private parties in the course of fulfilling its statutory duties are public records if owned, used, or retained by the public body.[41] And records created by and in the possession of a private contractor are public records if the public body owns the records by contract.[42]

However, a document prepared by a private entity does not become a public record merely because a public official reviews the document in the course of official business so long as the official neither uses nor retains the document. Moreover, documents in the possession of a public officer or employee in a personal capacity are not public records.[43]

D. How Can a Person Inspect or Obtain Public Records?

1.  Making a Request

A public body’s legal obligation to respond to a public records request is triggered by receipt of a written request.[44] Once a written request is received, the public body must provide copies of any records that are not exempt from disclosure, or a reasonable opportunity to inspect or copy those nonexempt records.[45]In order to facilitate this process, public bodies are required to make available to the public a written procedure for submitting records requests that identifies who the request should be sent to.[46] The written procedure must also provide information on how the public body calculates the fees it charges to fulfill records requests.[47] Once a public employee named in the procedure receives a written records request, certain deadlines to acknowledge and fulfill the request are triggered.[48]

When a public body receives an oral request for records, it is best practice to have the requester submit a written request so as to avoid future disputes over the scope of the request. And while public bodies should have an internal procedure in place to forward misdirected records requests to the employee(s) named in the posted records request procedure, requesters are encouraged to follow the posted procedure rather than include records requests within other correspondence with the public body.

Records requests sometimes reference the federal Freedom of Information Act (FOIA) even though the statutory authority to request records from Oregon public bodies comes from the Oregon Public Records Law. Oregon public bodies are not bound by FOIA timeframes or any other provisions of that federal act.[49]Nevertheless, public bodies should not deny a request for their records merely because the requester references FOIA.

When the requester is a party to litigation involving a public body or has filed a tort claim notice, and the requested records relate to that litigation or notice, the requester must also send a copy of the request to the public body’s attorney.[50] While an attorney requesting records does not need the consent of the public body’s legal counsel before submitting the request, the attorney could violate Section 4.2 of the Oregon State Bar’s Rules of Professional Conduct by asking questions about the meaning of records or attempting to elicit admissions when the attorney knows that the public body is represented by legal counsel on a matter to which the records are relevant.[51]

In addition to the right to inspect records provided under Public Records Law, other state statutes may provide an independent right to inspect records from a particular public body.[52] For example, certain relatives of a deceased person are entitled to inspect and obtain copies of the autopsy report ordered by a medical examiner.[53]

2.  Records Custodian

A public body is obligated to disclose only those records it is the custodian of,[54] that is, any records that it is directly or indirectly mandated to create, maintain, care for, or control.[55] In general, any public body that possesses or owns a public record for purposes related to one or more of its particular functions is a custodian of that record. This means that more than one public body can be the custodian of a given public record. This typically occurs when each public body has a copy of the same record for its own purposes. In such cases, each custodian is responsible for responding to public record requests directed to it. However, a public body is not the custodian of a record that it possesses as an agent for another public body, unless the record is not otherwise available.[56]When a public body receives a request for records it had received from another public body, it is permitted to consult with the originating body to determine whether the records may be exempt from disclosure.[57]

3.  Acknowledging a Request

Once a public records request is received by a public employee identified in a public body’s publicly posted procedure, the public body must acknowledge receipt within five business days, unless the request is fulfilled before then.[58] The acknowledgment must also notify the requester whether or not the public body is the custodian of the requested records, or that the public body is uncertain if it is the custodian.[59]

In certain circumstances discussed in more detail below, a public body is excused from this five business-day deadline.[60] However, even then the public body is required to acknowledge the request as soon as practicable and without unreasonable delay.[61]

A public body’s failure to acknowledge a records request cannot be the grounds for a petition to the Attorney General or the district attorney. However, failing to provide timely updates to a requester increases the chances of a petition on other grounds. And an unexplained failure to comply with this deadline may be seen as evidence that the public body did not process the records request in good faith. Therefore, we recommend that even if a public body is unable to provide a substantive update within five business days, it at least notify the requester of the delay and of when the requester should expect a substantive update.

In some cases, federal or state law may prohibit a public body from acknowledging whether responsive records exist; or acknowledging that records exist may result in the loss of federal benefits or some other sanction. For example, any public body that is subject to an expunction judgment for a juvenile’s records must respond to a request “by indicating that no record * * * exists.”[62] In such cases, the public body should provide a written statement to that effect and cite the relevant state or federal law, unless even citing the law would be a violation.[63]

4.  Completing the Response to a Request

Once a public employee identified in a public body’s publicly posted procedure receives a records request, the public body must complete its response as soon as practicable and without unreasonable delay.[64] How quickly a public body should be able to complete a request under this standard depends on various factors, including the specificity of the request, the volume of records requested, the amount of exempt material, and the ease in determining whether any of the records are exempt from disclosure. In most cases it should be possible to complete the response within ten business days. However, in some cases more time—even significantly more time—may be required.

a.  The 15 Business-Day Deadline

The law establishes a baseline expectation that public bodies will complete their responses no later than 15 business days after receiving the request.[65] However, a public body must still complete its response as soon as practicable and without unreasonable delay. That is, requesters who have made particularly straightforward requests can appeal a public body’s inaction even before 15 business days have elapsed.[66] A public body unable to meet the 15 business-day deadline must notify the requester in writing that the request is still being processed and provide the requester with a reasonable estimated date of completion.[67]

A public body completes its response to a records request when it has done all of the following:[68]

• Provided the requester with access to or copies of all the requested records that are not exempt from disclosure, or explained where the records are already publicly available.
• Cited any exemptions used to withhold records, including the specific state or federal statute for any exemption appearing outside of ORS 192.345 or 192.355.[69]
• Provided any nonexempt material from a public record that also contains exempt material.[70]
• If the public body is not the custodian of any of the records, provided a written statement to that effect.
• Cited in writing to any federal or state law that prohibits the public body from acknowledging whether the requested records exist (or to a law that would impose a loss of federal benefits or other sanction), unless providing that citation would violate the federal or state law.
• If the public body has redacted any information or withheld any information from disclosure, included a statement that the requester may seek review of this withholding pursuant to ORS 192.401, 192.411, 192.415, 192.418, 192.422, 192.427 and 192.431.[71]

The 15 business-day deadline is suspended when the public body provides the requester with a fee estimate to fulfill the request (until the fee has been paid or waived)[72] or when the public body, in good faith, requests clarification from the requester (until the requester provides that clarification or declines to).[73] These provisions are intended to facilitate efficient business, not to justify delay. As a result, public bodies should promptly consider requests for fee waiver. And requesters who wish to keep their request on track will respond to inquiries from the public body as quickly as possible. If no response is received to the fee estimate or clarifying question within 60 days, the public body can close the request.[74]

b.  Exceptions to the Deadlines

A public body is excused from the 5 business-day and 15 business-day deadlines if compliance would be impracticable for any of the following reasons:

• The staff or volunteers necessary to complete a response are unavailable (which includes when staff or volunteers are on leave or are not scheduled to work).
• Compliance would demonstrably impede the public body’s ability to perform other necessary services.
• The public body is simultaneously processing a high volume of other requests.[75]

The public body carries the burden to demonstrate that one of these exceptions applies,[76] and the exceptions are intended to apply narrowly—either to very small public bodies or in unusual circumstances. Public bodies with the resources to adequately staff its public records requests are expected to do so, and to provide other staff to cover for any absences.[77]

The exception for the unavailability of staff applies when the staff necessary to fulfill a records request are literally unavailable; the necessary staff may be the keepers of the requested records, or in a small public body, the staff responsible for processing records requests.

The exception for impeding services could apply to an extremely large records request, but is more likely to apply where a public body is so small that its staff would be unable to attend to other necessary work in order to comply with the deadlines.

And the exception for a high volume of requests recognizes that even a reasonably staffed system may occasionally become overwhelmed. This does not mean that a public body is free to put off work on a new request until all of the prior requests are complete. It may be unreasonable to delay responding to a straightforward request even if a very complex request is in process.

c.  Failing to Complete a Timely Response

If a public body fails to comply with the 15 business-day deadline or complete its response as soon as practicable and without unreasonable delay, the requester can petition the Attorney General (for state agencies) or the appropriate district attorney (for other public bodies) to order the disclosure of any nonexempt records; or file suit against the public body in circuit court (for elected officials).[78]

A requester can also submit a petition or file suit if the estimated date of completion provided by the public body is unreasonably long and will result in undue delay of disclosure.[79] However, merely failing to comply with a timeframe set by the requester does not constitute a denial entitling the requester to petition for release of the records.[80]

If a petition is granted for failing to timely respond, the public body can be ordered to disclose any nonexempt material within seven days, or within any other appropriate period.[81] This allows the reviewing authority to determine a reasonable amount of time for completing a response to a particular records request. House Bill 2353 » (2019) also permits the order, in certain circumstances, to assess a $200 penalty against the public body or reduce or waive the public body’s fee to fulfill the request.

5.  Inspecting Records versus Obtaining Copies

A requester is entitled to choose between a copy of a public record (if the record is of a nature permitting copying) or a reasonable opportunity to inspect or copy the record.[82]

a.  Inspecting Records

A public body must provide “proper and reasonable opportunities for inspection and examination of [its] records” at its offices during usual business hours.[83] This duty applies also to records “maintained in machine readable or electronic form.”[84] In addition, requesters must be provided with reasonable facilities to take notes of the records.[85] In short, the law directs public bodies to take reasonable steps to accommodate members of the public while they inspect public records.

The Americans with Disabilities Act (ADA) prohibits discrimination against persons with disabilities in governmental activities and requires public bodies to ensure that their communications with individuals with disabilities are as effective as communications with others.[86] Providing nonexempt public records under the Oregon Public Records Law is a governmental activity covered by the ADA. Thus, when making public records available, a public body must provide an opportunity for individuals with disabilities to request an alternative form (large print, Braille, audio tape, etc.).[87] The public body must give primary consideration to the choice expressed by the individual, but is not required to provide personal devices such as prescription glasses or readers for personal use or study.[88] The public body is entitled to consider the resources available for the program from which the records are sought in responding to a request for alternative format, and may conclude that compliance with the request would create undue burdens.[89] Before refusing a request for accommodation under the ADA, a public body that is unsure of its obligations should consult with its legal counsel.

Note that a public body may not charge a person with a disability to cover any additional costs of providing records in an alternative form, although the public body may charge a fee for all other “actual costs” that may be recovered under the Public Records Law just as it would for any other requester.

b.  Copying Records

A public body is required to provide a copy of a nonexempt record if the record is susceptible to copying.[90] Requesters are also permitted to use their own equipment to make copies, subject to reasonable restrictions imposed by the public body to protect the integrity of the records and to prevent interference with the regular duties of the public body.[91]

Some records may not be copied. For example, an individual’s signature on a voter registration card is subject to inspection but not subject to copying.[92] And federal copyright law generally prohibits the copying, but not the inspecting, of protected materials.[93]

Public bodies must provide electronic records in the form requested, if available. If the requested form is not available, the public body must make the record available in the form it is kept.[94]

6.  Protective Rules

A public body is authorized to “adopt reasonable rules necessary for the protection of [its] records and to prevent interference with the regular discharge of [its] duties.”[95]

When public bodies establish such rules, they should provide notice and opportunity for public comment so as to avoid the appearance of arbitrary action. Public bodies subject to the state Administrative Procedures Act must adopt such rules in conformity with that Act.[96] A rule designed solely to make public access to records more difficult is not valid, while a rule carefully designed to prevent destruction of public records or to expedite staff identification of requested records is lawful.

The statutory right to inspect public records encompasses a right to examine original records, and inspection of originals ordinarily should be allowed if requested. But the right to inspect does not include a right to browse through file cabinets, file folders, or electronic files,[97] and a public body may adopt administrative measures to supervise original document review. Furthermore, the right to examine original records does not require a public body to allow inspection of an original record that contains some information that is exempt from disclosure.[98] In such a case, a public body acts reasonably if it furnishes a copy of the original, with the exempt material redacted.

7.  Fees

A public body is authorized to establish fees “reasonably calculated to reimburse [it for the] actual cost of making public records available.”[99] This includes the “costs for summarizing, compiling or tailoring the public records, either in organization or media, to meet the person’s request.”[100]

State agencies in the executive branch should be aware of a DAS policy on public records fees.[101] The policy provides guidance on all aspects of fees, including how much to charge for particular tasks and when to reduce or waive fees.

If the fee estimate for a request exceeds $25, the public body must first provide a written estimate to the requester and receive confirmation that the requester is willing to pay.[102] A public body may require prepayment of its estimated charges before taking further action on a request.[103] Of course, if the actual charges are less than the prepayment, any overpayment should be refunded promptly.[104]

“Actual cost” may include a charge for the time spent by the public body’s staff in locating the requested records; reviewing the records in order to redact exempt material; supervising a person’s inspection of original documents in order to protect the records; copying records; certifying documents as true copies; or sending records by special methods such as express mail. “Actual cost” also may include the cost of time spent by the public body’s attorney reviewing and redacting, although the cost of the attorney’s time spent determining the application of the Public Records Law is not recoverable.[105]

Public bodies may charge for search time even if they fail to locate any records responsive to the request or even if the records located are subsequently determined to be exempt from disclosure.[106] However, it is best practice, where possible, to advise a requester beforehand if significant portions of the records are likely to be exempt from disclosure.

Public bodies are permitted to negotiate with requesters to reduce the cost of fulfilling requests. This can be accomplished in many ways, including using narrower search terms or a narrower date range, limiting the search to only the most relevant employees of the public body, or excluding the records most likely to contain exempt information. The public employees most knowledgeable about the subject matter of a particular request are a useful resource for the public body in determining what alternatives can be offered to the requester. While requesters are under no obligation to refine their request in order to reduce cost, many appreciate the opportunity to work with the public body to obtain the most substantive records for a lower cost.

As noted above, public bodies may not include charges for any additional costs incurred to provide records in an alternative format to individuals with vision or hearing impairments when required by the Americans with Disabilities Act.[107]

a.  Fee Schedules

Public bodies must make available to the public the amounts of and the manner of calculating fees for responding to public records requests.[108] This typically includes such information as the hourly charge for different categories of staff work, and the charge to copy records. We recommend that public bodies establish their fee schedules with notice and opportunity for public comment so that the public is aware of the justification for the fees. State agencies should adopt their fee schedules in compliance with the state Administrative Procedures Act.[109]

Public bodies must be prepared to demonstrate that their fee schedules are based upon their actual costs in making public records available for inspection or copying.[110] While there is no provision in the Public Records Law that authorizes a person to petition the Attorney General to review the reasonableness of an agency’s fees, state courts do possess this authority.[111] And the Attorney General’s authority to enforce the inspection provisions of the Public Records Law may require evaluation of an agency’s fees where the amount of the fee in comparison to the nature of the request suggests that the true purpose of the fee is to constructively deny the request, rather than to recoup the agency’s actual costs.[112] This evaluation typically requires the public body to explain how it calculated its fee.[113]

b.  Waiving or Reducing Fees

A public body may waive or reduce its fee for a particular request if doing so “is in the public interest because making the record available primarily benefits the general public.”[114] If disclosure is in the public interest, the public body’s decision to deny a request for a fee waiver or reduction must be reasonable under the totality of the circumstances.[115] A requester can contest a public body’s decision not to waive or reduce fees by submitting a petition to the Attorney General (for state agencies) or the local district attorney (for local public bodies), or by filing suit in circuit court  (for elected officials).[116] And a requester can appeal even after paying the fee to the public body.[117]  

It is possible that there may be narrow circumstances in which certain public bodies are prohibited from waiving or reducing fees.[118] Public bodies that believe they are so prohibited should consult with legal counsel.

(1) Public Interest Test

Waiving or reducing fees is in the public interest “when the furnishing of the record has utility—indeed, its greatest utility—to the community or society as a whole.”[119] This is distinct from situations where disclosure would primarily affect “a concern or interest of a private individual or entity.”[120]

If a requester seeks records relating to the requester, a mere allegation that the public body has treated the individual oppressively, absent a broader public interest, does not satisfy the public interest standard.[121] On the other hand, investigative reporters with established credentials, who sought records concerning military aviation safety with the intent of reporting on those records, were able to satisfy the public interest standard by demonstrating that fee requirements inhibited their ability to obtain government records.[122] And a requester who intended to use records in connection with lectures and articles on the history of the labor movement, without personal financial benefit, demonstrated sufficient public interest.[123]

Regardless of how interested the public may be in the matter the requested records relate to, if the requester fails to demonstrate the ability to meaningfully disseminate the information, disclosure will not primarily benefit the public.[124]

Public bodies may seek additional information from a requester to help clarify the basis for seeking a fee waiver. In determining whether the requester has established a sufficient public interest, relevant factors include the requester’s identity, the purpose for which the requester intends to use the information, the character of the information, whether the requested information is already in the public domain, and whether the requester can demonstrate the ability to disseminate the information to the public. The requester’s inability to pay is also a factor, but is not, on its own, a sufficient basis for a fee waiver. Without such information, it may be difficult or even impossible to assess whether the requested disclosure is in the public interest.

(2) Decision on Fee Waiver or Reduction

Even if waiving or reducing the fee is in the public interest, a public body has the discretion whether to do so.[125] However, the public body’s decision, on a case-by-case basis, must be reasonable under the totality of the circumstances.[126]

A public body’s fee-waiver decision should consider (1) the character of the public interest in the particular disclosure, (2) the extent to which the fee impedes that public interest, and (3) the extent to which a waiver would burden the public body.[127] Of course, other considerations may be appropriate in any given case.

Facts typically relevant to a fee-waiver decision include how narrowly tailored the request is to a matter of public interest; the time and expense needed to fulfill the request; the volume of the records requested; the need to segregate exempt from nonexempt materials; whether the fee was avoidable; and the ability of the requester to pay the fee. A public body may consider the aggregate effect of numerous public records requests from the same requester in assessing its burden.[128]

In reviewing petitions for fee waiver, we have determined that

• a 50% fee reduction was reasonable for a major news outlet with the resources to pay where the request sought records from over 200 files, rather than from a specific type of file tied to the public interest;[129]

• a 20% fee reduction for a media requester was reasonable where 56 hours of staff time was needed to fulfill a broad request not tailored to specific files;[130]

• no fee reduction was reasonable where the responsive records totaled 14,266 pages;[131]

• no fee reduction for a media requester was reasonable where disclosure would not inform the public about the operation of a state or local governmental body and where the requester had already paid the fee (which indicated that the fee did not deter access);[132] and

• a public body had to waive its fee for retrieving records from a private storage facility where the state-run storage facility offered no-cost retrieval.[133]

When assessing a request for a fee waiver of 100%, public bodies should also determine whether a more modest fee reduction is appropriate. There may be circumstances in which denying a total fee waiver is reasonable, but where refusing a 25% or 50% reduction is unreasonable.

8.  Consulting with Legal Counsel

Public bodies often must consult with legal counsel regarding public record requests. Briefly postponing the disclosure of records for that purpose does not violate the Public Records Law. It is reasonable for a public body to obtain legal advice on an extensive public records request when compliance will seriously disrupt the public body’s operations. Similarly, it is reasonable for a public body to consult counsel about disclosure of documents that appear to be exempt, in whole or in part, from disclosure. When a public body receives a request for records that the public body believes may be pertinent to a legal claim or litigation against the public body, it is also reasonable to consult counsel.

We advise state agencies to consult with counsel when presented with physically extensive or legally complex requests for disclosure of public records. We have concluded that “when a public body does so, it does not thereby actually or constructively deny the request.”[134] However, it is unreasonable to use consultation with counsel merely as a tactic to delay or frustrate the inspection process. In addition, consulting with counsel does not relieve the public body of its obligation to comply with the five business-day and 15 business-day deadlines. If the need for legal advice would push the public body’s final response past the 15 business-day deadline, the public body will need to provide the requester in writing with a reasonable estimated date of completion.

9.  Retaining and Destroying Public Records

The Public Records Law discussed in this Manual does not govern the retention and destruction of public records. Instead, these activities are regulated by ORS 192.001 to 192.170. The Secretary of State is the public records administrator of the state,[135] and the State Archivist possesses rulemaking authority on the retention and destruction of public records.[136] Separate provisions apply for the legislature  and the state courts:[137] the State Court Administrator sets retention schedules for the state courts and their administrative offices,[138] while the Legislative Administration Committee in conjunction with the Archivist sets retention schedules for legislative records.[139]

State agencies and political subdivisions must follow the general records retention schedules found in the Archivist’s rules,[140] as well as any special retention schedules that are specific to the public body.[141] Even public records that are exempt from disclosure are subject to these schedules. For more information about document retention schedules and preservation of public records, contact the State Archivist, 800 Summer Street N.E., Salem, Oregon 97310.

It is important to understand that the retention and destruction statutes define a “public record” differently than the Public Records Law. In order to trigger the law’s retention requirement, a record must, among other things, be “necessary to satisfy the fiscal, legal, administrative, or historical policies, requirements, or needs of the state agency or political subdivision.”[142] This element is absent from the definition of “public record” in the Public Records Law. But records that would not be necessary for any of those purposes—and that therefore would not be subject to retention requirements—may still be subject to public disclosure if they are requested while they still exist.[143]

It is a crime to knowingly destroy, conceal, remove, or falsely alter a public record without lawful authority.[144] Lawful authority to destroy public records derives from the statutes governing record retention and from the rules implementing those statutes.

10. Oregon Transparency Website

The Oregon Transparency Website makes certain basic information about government readily available to the public.[145] Its creation marks a turn toward government that is proactively transparent, rather than simply open to inspection on request. The website’s focus is primarily fiscal, with information on budgets, incoming revenues, tax expenditures, direct expenditures, and public employee compensation. State agencies’ public meetings notices are also posted to the website, as required by law.[146]

The Transparency Oregon Advisory Commission advises DAS with respect to the website. DAS welcomes comments about the site, including suggestions for additional content, at oregon.transparency@oregon.gov.

Agencies may want to consider a similarly proactive approach with respect to high-profile matters. Anticipating inevitable public records requests can make them far more manageable.

E.  How Does a Public Body Determine if Records Are Exempt from Disclosure?

1.  The Nature of the Exemptions

The Public Records Law is primarily a disclosure law, not a confidentiality law.[147] Every public record of a public body is subject to inspection, except as expressly provided by the exemptions contained in ORS 192.345 and 192.355.[148] Those two statutes also incorporate federal statutes or regulations that prohibit disclosure of records, and Oregon laws that prohibit disclosure or otherwise make records confidential.

Oregon courts interpret exemptions narrowly,[149] as does the Attorney General. In addition, a public body that denies a records request has the burden of proving that the information is exempt from disclosure.[150]

A public body is ordinarily free to disclose a record or information that is exempt from disclosure.[151] And a public body that, acting in good faith, discloses an exempt record is not liable for any loss or damages based on that disclosure.[152]

However, there are some categories of records and information that public bodies are legally prohibited from disclosing or that may be disclosed only to specific entities or in specific circumstances.[153] Statutes that use terms like “shall not,” “may not,” “it is unlawful,” or “it is prohibited” typically prohibit disclosure, without leaving any discretion to the public body.[154] Public bodies can potentially incur liability for disclosing these types of records.

Therefore, a public body receiving a public records request should first determine whether disclosure is prohibited by state or federal law, or by court order. If disclosure is not prohibited, and the public body sees no reason to withhold a requested record, the public body may disclose the record without further analysis.

Even if the public body perceives reasons to withhold the record, it must disclose the record unless an express statutory exemption applies. Naturally, the type of information appearing in a record will always be relevant to determining whether an exemption applies. In addition, some exemptions require a public body to weigh public or private interests favoring nondisclosure against public interests favoring disclosure.

Whenever a public body withholds a record or portions of a record from disclosure, it must notify the requester and cite the applicable exemption(s).[155] The public body should also consider briefly explaining the nature of the records withheld or redacted for each exemption asserted. This will provide the requester with the information necessary to decide whether to seek review of the denial.

If a public body asserts an exemption that is ultimately rejected by the courts, the public body may be required to pay the requester’s litigation costs and attorney fees, as well as its own costs.[156]

2.  Conditional and Unconditional Exemptions from Disclosure.

All of the exemptions described in ORS 192.345 are conditional: they exempt certain types of information from disclosure “unless the public interest requires disclosure in the particular instance.” In other words, the public body must balance the public interest in disclosure against the competing interest in confidentiality. The law presumes that the public interest favors disclosure.[157]

In contrast, many of the exemptions in ORS 192.355 are unconditional, in that the protected information is exempt without regard to the public interest. In effect, the legislature has determined that the confidentiality interests outweigh disclosure interests as a matter of law. Several of the exemptions in ORS 192.355 are conditioned on the extent to which confidentiality interests outweigh the public interest in disclosure; however, they are worded differently than the balancing test used in ORS 192.345, and vary by exemption.[158]

Similarly, most of the Oregon laws found outside of ORS 192.345 or 192.355 that prohibit disclosure or otherwise make records confidential are unconditional. However, there are a significant number that apply the same public interest balancing test found in ORS 192.345 or otherwise condition disclosure on a balancing of interests.

In determining whether an exemption applies, the identity of the requester and the circumstances surrounding the request are irrelevant to whether the information fits within the category of the exemption.[159] The surrounding circumstances become relevant only if the requested information comes under an exemption that requires a balancing of interests. In that context, the requester’s purpose in seeking disclosure may be relevant to determining whether the public interest requires disclosure: for example, the Court of Appeals held that the public interest did not require disclosure of the names of OHSU employees involved in animal testing where the requester’s stated purpose of ensuring the proper treatment of animals did not depend on receiving these names.[160]

3.  The Public Interest in Disclosure

“The public’s interest in disclosure encompasses the public’s interest in information about the manner in which public business is conducted and the right of the public to monitor what * * * officials are doing on the job.”[161]

Determining whether the public interest requires disclosure of a particular record is a two-step process. First, the public body should determine what the competing interests are in disclosure and nondisclosure, as well as the significance of those interests.[162] This involves looking to the exemption at issue and any case-specific facts, including the records themselves.[163] Second, the public body should weigh those interests and determine which one predominates, with the presumption in favor of disclosure.[164]

Analyzing the case-specific facts typically involves considering the importance of the particular governmental activity at issue;[165] how high-profile the matter is;[166] whether disclosure would impede government functions;[167] whether disclosure would help the public better monitor public business;[168] and the effect of disclosure on any privacy interests.[169] The public interest typically does not depend on the requester’s private interests,[170] or on protecting public bodies from embarrassment or scrutiny.[171]

For example, in a decision involving an exemption for internal personnel investigations of police officers that do not result in discipline, the Supreme Court identified the relevant confidentiality interests as protecting the officers’ privacy and the police department’s ability to effectively discipline, evaluate, and train its officers; the relevant disclosure interest was transparency of police department operations, as well as of the operations of the civilian review board charged with independent oversight of the personnel investigation at issue.[172]

In determining that the public interest required disclosure, the court emphasized the importance of public oversight of police officer use of force; that this was the first high-profile matter reviewed by the relatively new civilian review board; that the privacy interests of the officers were “substantially diminished” because their identities and alleged misconduct were already public; and that no evidence had been introduced to support the assertion that disclosure would impede the police department’s ability to effectively discipline, evaluate, and train its officers.[173]

4.  Separating Exempt and Nonexempt Material

When a record contains both exempt information and nonexempt information, the public body must produce the nonexempt information.[174] Public bodies are excused from this obligation only where separating out the exempt information from the nonexempt is not reasonably possible or where disclosing the nonexempt information would not genuinely preserve the confidentiality of the exempt information.[175]

Similarly, the analysis of whether the public interest requires disclosure of a record is not necessarily all or none. The public interest might be served by disclosing some, but not all, of a particular record.[176]

The obligation to separate exempt and nonexempt information applies regardless of whether the requester expressly invokes it. However, a specific request for the public body to do so—even after a refusal to disclose—can be helpful.

5.  Waiving an Exemption

A public body risks waiving its discretion to assert an exemption if it publicly discloses the exempt information. For example, the Court of Appeals has held that a school district waived an exemption over a personnel investigation report when its investigator disclosed “substantially all of the information” in that report through testimony at an unemployment hearing (where the transcript of that hearing was publicly available).[177]

However, this does not necessarily mean that a public body waives an exemption by selectively disclosing a record in the course of fulfilling its statutory duties. For example, we concluded that a state university did not waive the exemption over preliminary research data and reports through disclosure to other members of its research cooperative.[178] We explained that “where limited disclosure of a public record does not thwart the policy supporting the exemption, the public body does not thereby waive its prerogative not to disclose the record to others.”[179]

And certain exemptions are not waived by disclosure in response to a written records request, namely the attorney-client privilege and the other evidentiary privileges contained in ORS 40.225 to 40.295 ».[180]

Because the Court of Appeals has observed that “there is no blanket principle that applies to waiver” under the Public Records Law,[181] a public body that wishes to selectively disclose an exempt public record without waiving the exemption should consult with counsel.

6.  Records More than 25 Years Old

Generally, the Public Records Law does not exempt from disclosure records that are more than 25 years old.[182] For example, we have determined that the psychotherapist-patient and physician-patient privileges did not apply to records that were more than 25 years old.[183]

However, there are several exceptions to this rule that either mirror or are subsets of other exemptions:[184]

(1) “Records less than 75 years old which contain information about the physical or mental health or psychiatric care or treatment of a living individual, if the public disclosure thereof would constitute an unreasonable invasion of privacy.”[185]

(2) “Records less than 75 years old which were sealed in compliance with statute or by court order.”

(3) “Records of a person who is or has been in the custody or under the lawful supervision of a state agency, a court or a unit of local government, * * * to the extent that disclosure thereof would interfere with the rehabilitation of the person if the public interest in confidentiality clearly outweighs the public interest in disclosure, [but only] for a period of 25 years after termination of such custody or supervision.”[186]

(4) “Student records exempt from disclosure under state or federal law.”

Based on their context, it does not appear that these four exceptions are meant to create separate exemptions from disclosure. They merely describe categories of records that do not lose their exempt status after 25 years. This conclusion is supported by statutory context showing that the exceptions were enacted as a companion to the 25-year rule,[187] the fact that they were not enacted as part of the single exemption statute that existed at the time, and the fact that they generally mirror or are a subset of previously existing exemptions.

7.  The Federal Freedom of Information Act (FOIA)

Because Oregon’s Public Records Law was modeled after FOIA  and comparable state laws, it is appropriate to look to federal and state court decisions on those laws in interpreting Oregon’s exemptions.^[188] However, it is important to keep in mind that the decisions of these other courts are not dispositive in Oregon courts, particularly if the text of the applicable Oregon exemption differs from its federal or state counterpart, or if Oregon case law has already interpreted the Oregon exemption differently.

8.  Finding Exemptions

The Attorney General maintains a publicly available catalog of public records exemptions found in Oregon law at https://justice.oregon.gov/PublicRecordsExemptions/ ».[189] For each exemption, the catalog provides a brief description, the full statutory text, the affected public bodies, the text of the balancing test (if applicable), and the significant appellate cases and public records orders analyzing the exemption.

While the catalog does not have legal effect, it serves as a useful guide for both public bodies and records requesters in locating and understanding the exemptions relevant to a particular records request.[190]

9.  Sunshine Committee

In 2015, the Attorney General formed a Public Records Task Force consisting of legislators, representatives of media and local government, and other stakeholders.[191] The task force’s work resulted in the passage of Senate Bill 481 during the 2017 legislative session. This bill established for the first time clear time frames for responding to public records requests, and directed the creation of the publicly available catalog of exemptions discussed above.

Another bill enacted in the 2017 session established the Oregon Sunshine Committee as a successor to the task force. The Sunshine Committee is tasked with reviewing and reporting on exemptions from disclosure found in Oregon law and on other ways to modify laws to encourage the transparent and efficient handling of records requests.[192] These reports will be reviewed by the Legislative Counsel Committee and its newly established public records subcommittee.[193] More information on the Sunshine Committee can be found at https://www.doj.state.or.us/oregon-department-of-justice/public-records/public-records-reform/.

F.  Where and How Does a Person Proceed if Access Is Refused?

If a public body denies a requester the right to inspect a public record, the recourse available to the requester generally depends on the identity of the public body. The same procedures apply for denials of a request for fee waiver or reduction,[194] or for a public body’s failure to comply with timing obligations;[195] however, for brevity’s sake, we will refer throughout this section to denials of the right to access records.

• If the request was denied by a state agency or official, but not an elected official, the requester may petition the Attorney General for an order compelling disclosure of the records.[196]
• If the request was denied by a local public body, but not an elected official, the requester may petition the district attorney in the county where the public body is located for an order compelling disclosure of the records.[197]
• If the request was denied by a state elected official, the requester may seek review in Marion County Circuit Court;[198] and if the request was denied by a local elected official, the requester may seek review in the circuit court in the county where the official is located.[199]
• The requester can also seek court review in Marion County Circuit Court if the Attorney General has denied any part of a petition.[200] If the appropriate district attorney has denied any part of a petition, the requester can seek review in the circuit court in that same county.[201]

Before seeking formal review of a denial, it may be worthwhile for a disappointed requester to seek a decision at a higher level within the public body. This increases the probability of a favorable decision without the need to seek review, and may encourage the agency to obtain legal advice concerning disclosure of the records at issue.

In addition, the newly created office of Public Records Advocate can help resolve public records disputes. The Advocate offers formal assistance with requests for records from state agencies and cities,[202] and informal assistance in other cases. Either the records requester or agency can request the Advocate’s assistance.[203]

1.  Petitions to the Attorney General

a.  Role of the Attorney General

A public records requester contesting a state agency’s denial of a records request, other than by an elected official, must first seek review from the Attorney General,[204] who acts in a quasi-judicial role. The Attorney General will consider the petition and issue an order denying or granting it, or denying it in part and granting it in part. That is, the Attorney General will either order the state agency to disclose the records at issue (or parts of them) or conclude that the records are exempt from disclosure.[205]

While the petition is pending, an agency may continue to seek legal advice and assistance from its assigned attorney at the Oregon Department of Justice. (A separate attorney is assigned to oversee the review process and recommend a disposition to the Attorney General.)

Even if the agency has denied a records request after discussing the request for disclosure with the Department of Justice, petitioning for the Attorney General’s formal review may not be futile. Advice given to the agency in such circumstances, sometimes by assigned counsel without further review in the Attorney General’s office, often is expressly preliminary. The advice may be based on a description of the requested record, rather than on inspection of the record. And sometimes agencies do not follow the advice of assigned counsel. The petition process also gives the requester the opportunity to provide the Attorney General with additional information. For example, the requester may be able to articulate ways in which the disclosure would serve the public interest. Such information could lead to the conclusion that a conditional exemption claimed by the agency is not available under the circumstances.

b.  General Procedures

The general procedures for seeking review by the Attorney General are described in this section. With respect to certain records of health professional regulatory boards or the Health Licensing Office, the procedures are somewhat different and are discussed below.

There is no filing fee for seeking review by the Attorney General. The statutory form of petition is set out at Appendix B-9, and an electronic form is available at https://www.doj.state.or.us/oregon-department-of-justice/public-records/petition-for-public-records-order/.  However, it is not necessary to use any particular form, so long as the petition includes the information required by ORS 192.422(1):

• The identity of the requester,
• The state agency that has the records being sought,
• A description of the records that are sought,[206]
• A statement that a public records request was submitted, and
• A statement that the request was denied, including the person denying the request and the date of the denial, if known.

It is helpful if the petition also explains why the requester believes that the state agency’s asserted exemptions do not apply, and attaches any relevant correspondence with the agency.

Upon receipt of a petition, the Attorney General must promptly notify the agency.[207] The agency must then send the Attorney General the requested records for review, together with a statement of its reasons for believing the records should not be disclosed.[208] The Attorney General may permit the agency to disclose the nature or substance of the records rather than the actual records if that is appropriate under the circumstances.[209]

The burden is on the state agency to sustain its denial of the records request.[210] Consequently, if the Attorney General is unable to affirmatively conclude that records are exempt, the Attorney General must order them to be disclosed.[211] Agencies must be able to explain why the withheld records are covered by the asserted exemption, and—for conditional exemptions—why the public interest does not require disclosure.[212]

For conditional exemptions, neither the requester not the public body is required to introduce facts to explain the significance of the disclosure and confidentiality interests at issue.[213] For example, a requester can choose to rely only on the Public Records Law’s “strong and enduring policy that public records and governmental activities be open to the public.”[214] However, determinations on review by the Attorney General or a court frequently depend on looking at facts specific to the records at issue.[215] For a requester, this typically means explaining how disclosure will better help monitor public business and why the relevant public business is so significant. For a public body, this typically means explaining how disclosure will cause harm to the relevant interests, such as the public body’s operations.

The Attorney General has seven days in which to grant or deny the petition in whole or in part.[216] If the Attorney General does not rule on the petition within the statutory time period, the petition is considered denied.[217] The order granting or denying the petition is sent to the requester and to the state agency, and is also publicly posted at http://cdm17027.contentdm.oclc.org/cdm/landingpage/collection/p17027coll2 ».

If either the state agency or requester disagrees with the Attorney General’s order, court proceedings can be instituted after the petition process is concluded.

c.  Health Professional Regulatory Boards and Health Licensing Office

Special procedures for seeking review by the Attorney General apply to certain records of health professional regulatory boards[218] and of certain boards under the administration of the Health Licensing Office (HLO).[219]

If the public record being sought “contains information concerning a licensee or applicant,” the requester must send a copy of the petition by first-class mail to the affected regulatory board or HLO.[220] This must be done on or before the date of filing the petition with the Attorney General.[221] And if the requested records are of the type that can be withheld based on ORS 676.165, 676.175, or 676.595 », the requester’s petition must include clear and convincing evidence that the public interest in disclosure outweighs the interests in nondisclosure.[222]

The board or HLO then has 48 hours to forward the petition via first-class mail to any affected licensees or applicants; and to notify these licensees or applicants of the right to file a written response to the petition with the Attorney General within seven days.[223] Any response submitted by a licensee or applicant is then forwarded to the requester by the Attorney General.[224]

Because of the opportunity given to the licensee or applicant to submit a response, the Attorney General has 15 days to consider these petitions, instead of the usual seven.[225]

If the Attorney General orders disclosure of the records, the order must be sent by first-class mail to the requester, the affected board or HLO, and affected licensees or applicants.[226] The board or HLO may not disclose records under such an order until seven days after service of the Attorney General’s order on affected licensees and applicants.[227] Following the Attorney General’s order, the board, the requester, or an affected licensee or applicant may institute court proceedings.[228] Jurisdiction rests with the circuit court for the county where the records are held.[229]

2.  Petitions to the District Attorney

The Attorney General generally does not have authority to consider petitions for the records of a local public body or of any public body that is not a state agency.[230] Examples of such bodies are cities,[231] counties,[232] school districts,[233] special districts,[234] OHSU,[235] and public universities.[236] Instead, a petition for disclosure of those records should be filed with the district attorney in the county where the relevant public body is located.[237] The petition must include the same information that is required in a petition to the Attorney General, and the procedure is identical to the procedure for petitions to the Attorney General. The procedures for court review following the district attorney’s order are also largely the same.

3.  Elected Officials

Neither the Attorney General nor district attorney may review an elected official’s decision to withhold a record from inspection under the Public Records Law.[238] This rule applies regardless of whether the record in question is in the custody of the elected official or in the custody of any other public body, so long as the elected official claims the right to withhold the record.[239] And an elected official can claim the right to withhold a record even while a public records petition is pending.[240] These same rules apply to officials who have been appointed to fill a vacancy in an elective office.[241]

A person whose public records request has been denied by an elected official may initiate court proceedings to challenge the denial.[242] For state elected officials, such proceedings can be instituted in Marion County Circuit Court;[243] for local elected officials, they can be instituted in the county where the official is located.[244]

If the Attorney General or district attorney serves as legal counsel for an elected official, then upon request they may serve or decline to serve as the official’s counsel in such a suit.[245]

4.  Court Proceedings

A records requester or public body that disagrees with an order of the Attorney General or district attorney, or a requester who disagrees with a denial by an elected official, may seek court review. The procedure depends on whether the disputed order granted or denied the petition.

If the Attorney General or district attorney orders a public body to disclose a public record, the public body must comply with the order in full within seven days,[246] or else give notice that the public body intends to institute proceedings for injunctive or declaratory relief against the requester in circuit court. Copies of this notice must be sent to the Attorney General or district attorney, and by certified mail to the requester.[247] If a public body gives such notice, it then has seven days to institute proceedings.[248] However, the public body cannot be represented in the proceedings by the Attorney General or district attorney.[249] If the public body fails to comply with either of these seven-day deadlines, the requester may file suit,[250] in which case the public body will be liable for the requester’s costs and reasonable attorney fees regardless of who prevails at circuit court.[251]

If the Attorney General or district attorney instead issues an order denying the petition, then the requester may contest that order by instituting proceedings against the public body in circuit court.[252] However, the requester does not need to comply with either of the seven-day deadlines that apply to a public body filing suit. And in such cases, the Attorney General will represent a state agency in defense of the agency’s action.[253] A district attorney, however, will not represent a public body unless the district attorney generally serves as the attorney for that body.[254]

If the petition is granted in part and denied in part, the public body, the requester, or both may institute court proceedings.[255] The Attorney General cannot represent a state agency if the Attorney General ordered disclosure of any records and the agency did not fully comply.[256] The same rule applies to an order issued by a district attorney.[257]

Any action for injunctive or declaratory relief following an order of the Attorney General must be filed in the Marion County Circuit Court.[258] Court actions following an order of the district attorney must be filed in the circuit court of the county in which the district attorney exercises jurisdiction.[259] And court proceedings following a denial by an elected official can be instituted in Marion County Circuit Court (for state officials) or in the county where the elected official is located (for local officials).[260]

Regardless of whether court proceedings follow a petition to the Attorney General, a petition to a district attorney, or a denial by an elected official, the powers of the court are the same. Specifically, the court has jurisdiction to enjoin the public body from withholding records and to order production of any records improperly withheld.[261] The public body carries the burden to sustain its denial of a records request,[262] but is not limited to the arguments or exemptions it raised in the course of review by the Attorney General or a district attorney.[263]

If a requester prevails in full in the court proceedings, the public body will be required to compensate the requester for the cost of the litigation at trial and on appeal, including reasonable attorney fees.[264] However, if the requester prevails only in part, the award of costs and attorney fees is discretionary.[265] If a public body that has been ordered by the Attorney General or district attorney to disclose records fails to do so and either fails to notify the requester within seven days of its intent to institute court proceedings or fails to actually institute those proceedings within seven days of giving notice, the public body will have to pay the requester’s litigation costs regardless of which side prevails.[266] If the public body has disclosed all requested records before trial, the case is generally moot, and no attorney fees will be available.[267] However, the public body may be required to pay these costs if it provides the requested records but does not concede that the records are subject to public disclosure.[268]

5.  Public Records Advocate

In addition to seeking review from the Attorney General or district attorney, a requester can ask the Public Records Advocate to help resolve disputes with a state agency or city.[269] The Advocate’s services can be requested by a state agency, city,[270] or requester when any portion of the records request has been denied; when a request for fee waiver or reduction has been denied; or when a fee estimate has been provided to the requester.[271] These services will be most effective when requested prior to review by the Attorney General or district attorney. The Advocate may also be able to informally resolve disputes that involve public bodies other than a state agency or city.

Once a written request for assistance has been received, the Advocate has 21 days to help the public body and requester reach an agreement on the disputed issue(s).[272] Both the requester and state agency must engage in the resolution process in good faith;[273] however, when a state agency requests the Advocate’s services, the records requester has five days to opt out by written notice.[274] If an agreement is reached, the Advocate will prepare a formal written agreement that will be executed by the public body and requester; that agreement will then control how the records request is resolved.[275] If an agreement is not reached, the requester can still seek review from the Attorney General (for state agencies), district attorney (for cities), or the circuit court (for elected officials).

In addition to providing these dispute resolution services, the Advocate will train public bodies on processing and responding to public records requests.[276] At a public body’s written request, the Advocate may also provide advice on processing public records requests and applying public records exemptions.[277]

More information on the Advocate can be found at http://sos.oregon.gov/public-records/Pages/default.aspx ».

G. What Public Records Are Exempt from Disclosure?

This section provides information on public records exemptions found in the Public Records Law, ORS 192.311 to 192.478, including the conditional exemptions found in ORS 192.345, the exemptions found in ORS 192.355, and the other miscellaneous exemptions. It does not, however, provide analysis of the hundreds of exemptions found elsewhere in Oregon law, or found in federal law.

a.  The Conditional Exemptions of ORS 192.345

Each of the conditional exemptions listed in ORS 192.345 exempts a specific type of record or information “unless the public interest requires disclosure in the particular instance.” Thus, for each of these exemptions, public bodies must always apply a balancing test on a case-by-case basis.

(1) Public Records Pertaining to Litigation

ORS 192.345(1) conditionally exempts:

Records of a public body pertaining to litigation to which the public body is a party if the complaint has been filed, or if the complaint has not been filed, if the public body shows that such litigation is reasonably likely to occur. This exemption does not apply to litigation which has been concluded, and nothing in this subsection shall limit any right or opportunity granted by discovery or deposition statutes to a party to litigation or potential litigation.

The purpose of this exemption is to place governmental bodies, as parties or potential parties to litigation, on an even footing with private parties. Therefore, we recommend that public bodies invoke this exemption only on the advice of legal counsel.

The exemption applies only to records “compiled or acquired by the public body for use in the litigation,” as distinguished from records compiled or acquired in the ordinary course of business that subsequently become relevant to litigation.[278] The Oregon Court of Appeals has suggested that this exemption is analogous to the attorney-client privilege and the work product protection.[279]

Because public bodies need to investigate and prepare in advance for expected litigation, we think it appropriate to interpret the phrase “reasonably likely” to mean “more likely than not,” rather than “imminent.” One indication that litigation is reasonably likely to occur is the filing of a notice of tort claim against the public body. Notes or reports prepared in response to such a notice would fall within the exemption.[280]  

The legislative history makes clear that the litigation exemption does not apply to administrative proceedings, such as contested case hearings. The fact that any administrative proceeding may lead to litigation does not justify claiming this exemption. If, however, the public body objectively can show that court litigation is “reasonably likely to occur,” the exemption may be claimed for information gathered for that litigation, regardless of whether an administrative proceeding also may be involved.

In assessing whether the public interest requires disclosure of records covered by this exemption, an interest in private litigation does not justify disclosure.[281] The availability of ordinary tools of discovery would generally negate any need for an individual to use the Public Records Law to gain access to records for purposes of pursuing private litigation.[282]

This exemption no longer applies once the litigation has concluded, which does not occur until there is a final judgment and all appeal rights have been exhausted.

Public bodies that are defendants in tort litigation[283] cannot enter into a confidential settlement or compromise, unless federal law requires the specific terms and conditions to remain confidential; or the court orders that the identity of a victim of sexual abuse or a minor remain confidential, after balancing the privacy interests against the public’s interest in the relevant terms and conditions.[284]

Even when settling other types of cases, public bodies may not “exempt public records from disclosure simply by promising * * * confidentiality. Absent statutory authority, such action would violate the ‘strong and enduring policy that public records and governmental activities be open to the public.’”[285]

Lastly, we note that when a party to civil litigation involving a public body uses the Public Records Law to request information relating to the litigation, the party must send the request to the public body, with a copy to the public body’s attorney.[286] This requirement also applies when the requester has filed a notice of tort claim, if the requested records relate to the notice.[287]

(2) Trade Secrets

ORS 192.345(2) conditionally exempts:

Trade secrets. “Trade secrets,” as used in this section, may include, but are not limited to, any formula, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented, which is known only to certain individuals within an organization and which is used in a business it conducts, having actual or potential commercial value, and which gives its user an opportunity to obtain a business advantage over competitors who do not know or use it.

Records withheld from disclosure under this provision must meet all four of the following criteria:

• the information must not be patented;
• it must be known only to certain individuals within an organization and used in a business the organization conducts;
• it must be information that has actual or potential commercial value; and,
• it must give its users an opportunity to obtain a business advantage over competitors who do not know or use it.

This definition is not exclusive, and thus “trade secret” may also include information described in the Uniform Trade Secrets Act (UTSA).[288] Judicial opinions construing the UTSA can therefore be useful in interpreting the scope of a “trade secret” under Public Records Law.

The trade secret exemption is most frequently relevant to information a public body has obtained from third parties, such as contractors or regulated entities. Determining whether information from a particular entity qualifies as a trade secret is fact specific.[289] And a public body cannot rely merely on the entity’s assurance that the information is a trade secret.[290] This often places a public body in the difficult position of carrying the burden to prove that information is exempt as a trade secret, without possessing the facts necessary to meet this burden.

We therefore recommend that public bodies require any entities submitting sensitive business information to clearly label any asserted trade secrets.[291] Submitting entities should be told that this information will be disclosed if it does not qualify as a trade secret or if the public interest requires disclosure.

Once a records request is received for any information that has been labeled as trade secret, the public body should notify the entity and request factual information, and legal argument where appropriate, that supports the assertion of the trade secret exemption. Once the necessary information is obtained, the public body will then be in a position to properly determine whether to assert the exemption.

Relevant facts to obtain from the entity asserting a trade secret often include internal steps the entity takes to keep the information secret; to the extent the information is by necessity shared with or known by outside parties, the steps taken to ensure that these parties keep the information secret; how the information would be economically valuable to a competitor or could be used to economically harm the entity; and the time, effort, and expense needed to compile the information.[292]

We have concluded that fee schedules and price lists provided in response to a request for proposal can meet the criteria for exemption as trade secrets.[293] We have also concluded that lightning strike data made available to the Oregon Department of Forestry under a license with a private corporation met the criteria.[294] More recently, we have concluded that an insurer’s projections of trend, target loss ratios, and accidental death rates, submitted to the Insurance Division as part of the insurer’s rate filing, were exempt as trade secrets.[295]

Determining whether information is exempt as a trade secret depends on the public interest in disclosure.[296] In adopting the UTSA, the Oregon legislature included a provision immunizing public bodies from misappropriation claims.[297] To qualify for this immunity, the disclosure must be made pursuant to an order issued under the Public Records Law or on the advice of an attorney authorized to advise the public body.[298] This provision indicates that the legislature expected that disclosures under the Public Records Law might include information otherwise protected as a trade secret. The legislature chose to address that possibility by giving public bodies immunity against any resulting misappropriation claims. In addition, in adopting the UTSA, the legislature did not amend the existing conditional exemption for trade secrets, despite clearly being aware of the UTSA’s interplay with Public Records Law. And finally, at the time the UTSA was adopted, the Public Records Law did not contain the “catchall” exemption contained in ORS 192.355(9). Instead, the Public Records Law included an enumerated list of specific statutes providing for some type of confidentiality. The legislature did not add any of the newly passed UTSA to that list.[299]

However, because the UTSA evinces a legislative policy in favor of protecting legitimate trade secrets, it is appropriate to give heightened scrutiny to contentions that the public interest requires the disclosure of a trade secret. That is, the balancing test will be less likely to favor disclosure.

In assessing whether the public interest requires the disclosure of trade secrets, we typically look to how much harm the entity asserting a trade secret would suffer by disclosure; the benefits enjoyed by that entity in connection with submitting the information at issue; and the nature of the governmental activity connected to the information. For example, we concluded that the public interest required disclosure of salary information of private companies that had received sizable property tax abatements: even assuming the information qualified as trade secret, we found that disclosure would help the public monitor the effectiveness of this investment of public funds tied to job creation.[300] We also noted that the information was not specific enough to identify wages paid to each individual or occupational class; that is, there was “only an attenuated possibility that disclosure could actually harm the [relevant] commercial interests.”[301]

Absent an order compelling disclosure under the Public Records Law, a public body should not release any trade secret information without determining that the public interest requires disclosure and consulting with an attorney authorized to give it legal advice.[302]

(3) Criminal Investigations

ORS 192.345(3) conditionally exempts:

Investigatory information compiled for criminal law purposes. The record of an arrest or the report of a crime shall be disclosed unless and only for so long as there is a clear need to delay disclosure in the course of a specific investigation, including the need to protect the complaining party or the victim. Nothing in this subsection shall limit any right constitutionally guaranteed, or granted by statute, to disclosure or discovery in criminal cases. For purposes of this subsection, the record of an arrest or the report of a crime includes, but is not limited to:

(a) The arrested person’s name, age, residence, employment, marital status and similar biographical information;

(b) The offense with which the arrested person is charged;

(c) The conditions of release pursuant to ORS 135.230 to 135.290 »;

(d) The identity of and biographical information concerning both complaining party and victim;

(e) The identity of the investigating and arresting agency and the length of the investigation;

(f) The circumstances of arrest, including time, place, resistance, pursuit and weapons used; and

(g) Such information as may be necessary to enlist public assistance in apprehending fugitives from justice.

This exemption generally applies only until the law enforcement investigation or prosecution is completed or abandoned.[303] However, the public interest may not require disclosure of certain information even after the investigation or prosecution is completed:

• information that would interfere with ongoing law enforcement proceedings;
• information that would deprive a person of a right to a fair trial;
• information that would constitute an unwarranted invasion of privacy;
• information that would disclose the identity of a confidential source;
• information that would disclose investigative techniques and procedures; or
• information that would endanger the life or physical safety of law enforcement personnel.[304]     

Certain information may be subject to disclosure even before the completion of an investigation: a “record of an arrest or the report of a crime” can be withheld only if there is a clear need to delay disclosure in the course of a specific investigation, or if another statute restricts or prohibits disclosure. Disclosable information includes the identity and general biographical information of the victim, complainant, and arrested person, as well as the charges and other details of the arrest.[305]

The criminal investigatory exemption applies not only to information generated during a criminal investigation, but also to information originally compiled for ordinary business purposes that is subsequently gathered in the course of an investigation. This means that even information in the custody of a non-law-enforcement agency may be exempt if it was subsequently gathered by a law enforcement agency, but only if disclosing the information would interfere with an ongoing investigation.[306]

(4) Tests and Examinations

ORS 192.345(4) conditionally exempts:

Test questions, scoring keys, and other data used to administer a licensing examination, employment, academic or other examination or testing procedure before the examination is given and if the examination is to be used again. Records establishing procedures for and instructing persons administering, grading or evaluating an examination or testing procedure are included in this exemption, to the extent that disclosure would create a risk that the result might be affected.

The obvious purpose of this exemption is to protect the integrity of examinations administered by various public bodies for licensing, employment, and other purposes. Information used to administer an exam is generally confidential until the exam has been given or if the exam will be reused.[307] This exemption also applies to an individual’s exam answers if disclosure would indirectly reveal the exam questions.[308]

Although primarily applicable to licensing or academic examinations, this exemption will apply to any “examination” for which test questions, scoring keys, or other data will be used again to grade or evaluate applicants.[309]

(5) Business Records Required to be Submitted

ORS 192.345(5) conditionally exempts:

Information consisting of production records, sale or purchase records or catch records, or similar business records of a private concern or enterprise, required by law to be submitted to or inspected by a governmental body to allow it to determine fees or assessments payable or to establish production quotas, and the amounts of such fees or assessments payable or paid, to the extent that such information is in a form that would permit identification of the individual concern or enterprise. This exemption does not include records submitted by long term care facilities as defined in ORS 442.015 » to the state for purposes of reimbursement of expenses or determining fees for patient care. Nothing in this subsection shall limit the use that can be made of such information for regulatory purposes or its admissibility in any enforcement proceeding.

This exemption applies only to business records required to be submitted to a governmental body for use in setting fees or assessments or for establishing production quotas, and to the amount of the fees or assessments, if this information would permit identification of the business. It is intended to protect information that would allow determination of a particular business’s production levels. This exemption does not cover business records that a person or business may submit in connection with an application for a license or permit, even if the information is a required part of the application, unless the amount of the license or permit fee is based on the production levels. The exemption is limited to information furnished to allow the governmental agency “to determine fees or assessments payable or to establish production quotas.”

(6) Real Estate Appraisals

ORS 192.345(6) conditionally exempts:

Information relating to the appraisal of real estate prior to its acquisition.

This exemption permits public bodies to obtain information in confidence concerning the value of real estate that the public body may purchase. A parallel provision exists under the Public Meetings Law, which exempts from open meetings requirements “deliberations with persons designated by the governing body to negotiate real property transactions.”[310] Even after the real estate is acquired, the exemption may continue to apply to the appraisal if the information and analysis in the record is relevant to later appraisals of similarly situated properties that the public body may acquire.[311]

(7) Employee Representation Cards

ORS 192.345(7) conditionally exempts:

The names and signatures of employees who sign authorization cards or petitions for the purpose of requesting representation or decertification elections.

This exemption does not extend to records showing the number of persons who have signed such cards or to checklists of eligible employees who vote in such elections that do not disclose how individual employees voted.[312]

(8) Civil Rights Investigations

ORS 192.345(8) conditionally exempts:

Investigatory information relating to any complaint filed under ORS 659A.820 or 659A.825 », until such time as the complaint is resolved under ORS 659A.835, or a final order is issued under ORS 659A.850.

This exemption applies to investigatory information related to complaints of unlawful employment practices or other civil rights violations that are filed with the Bureau of Labor and Industries. It expires once the complaint is resolved under ORS 659A.835 or 659A.850 ». This exemption does not apply to the complaint itself or information contained in the complaint.[313]

(9) Unfair Labor Practice Investigations

ORS 192.345(9) conditionally exempts:

Investigatory information relating to any complaint or charge filed under ORS 243.676 » and 663.180 ».

This exemption applies to investigatory information relating to complaints or charges of certain unfair labor practices that are filed with the Employment Relations Board. However, the complaint or charge itself would not be exempt from disclosure.[314]

(10) Debt Consolidator Investigations

ORS 192.345(10) conditionally exempts:

Records, reports and other information received or compiled by the Director of the Department of Consumer and Business Services under ORS 697.732 ».

This exemption applies to records received or compiled by the director of the Department of Consumer and Business Services in examining or investigating a debt management service provider. However, the director must disclose any order that suspends, revokes, or refuses to renew a service provider’s registration, or that imposes a civil penalty under ORS 697.832 ».[315]

(11)  Archaeological Site Information

ORS 192.345(11) conditionally exempts:

Information concerning the location of archaeological sites or objects as those terms are defined in ORS 358.905 », except if the governing body of an Indian tribe requests the information and the need for the information is related to that Indian tribe’s cultural or religious activities. This exemption does not include information relating to a site that is all or part of an existing, commonly known and publicized tourist facility or attraction.

Archaeological objects refer to objects that meet all of the following conditions: are at least 75 years old; are part of the physical record of an indigenous or other culture found in the state or waters of the state; and are material remains of past human life or activity that are of archaeological significance.[316] Examples can be monuments, symbols, and facilities.[317]

Archaeological sites are Oregon sites that contain archaeological objects and the contextual associations of these objects with each other or with biotic or geological remains or deposits.[318] Examples can be shipwrecks, lithic quarries or scatters, house pit villages, camps, burials, homesteads, and townsites.[319]

(12)  Personnel Discipline Actions

ORS 192.345(12) conditionally exempts:

A personnel discipline action, or materials or documents supporting that action.

This exemption applies to records of personnel discipline actions, and the personnel investigations supporting those actions. It does not apply to personnel investigations that do not result in any disciplinary action,[320] and so does not apply when an employee resigns during the investigation or in lieu of disciplinary action.[321] When a records request is received during the course of a personnel investigation, and unless the public interest requires disclosure, the records can be withheld until the investigation concludes so that the public body can determine whether this exemption applies or not.[322]

When determining whether the public interest requires disclosure, the typical interest in confidentiality is to “protect[ ] the public employee from ridicule for having been disciplined.”[323] This confidentiality interest is therefore diminished when information about the disciplinary action or the underlying conduct is already publicly available.[324]

The significance of the public interest in disclosure typically depends on the seriousness of the employee’s alleged misconduct and on the employee’s position. For example, the Oregon Court of Appeals has held that an investigation into a high-school principal and vice-principal’s alleged misuse and theft of school property was not exempt;[325] and that an investigation into a high-ranking police officer’s off-duty conduct was not exempt where the officer’s integrity and ability to enforce the law evenhandedly were implicated.[326]

The public interest in disclosure is not limited to learning about the public employer imposing the disciplinary action: for example, in concluding that an internal affairs investigation of police officers was not exempt, the Oregon Supreme Court relied on not just the public interest in oversight of the police department, but also on the interest in oversight of the independent civilian review board that had reviewed the investigation.[327]

We recommend that a public body consult with its legal counsel for advice in responding to a request for records potentially exempt under the personnel discipline exemption.

Some public bodies have stronger protections in place for disciplinary records. For example, district school boards can adopt rules limiting public access to teachers’ personnel files.[328] A public body cannot publicly disclose a personnel investigation of any of its public safety employees if no discipline results, unless the public interest requires disclosure or if the public body determines that nondisclosure would adversely affect the public’s confidence in the body.[329] And a public body may not publicly disclose audio or video records of internal investigation interviews of public safety officers.[330]

Before producing any personnel files, a public body should remember that various personal information about its employees is exempt from disclosure unless there is clear and convincing evidence that the public interest requires disclosure: this includes home addresses, home and cell phone numbers, personal e-mail addresses, driver license numbers, Social Security numbers, dates of birth, and emergency contact information.[331]

(13)  Information about Threatened or Endangered Species

ORS 192.345(13) conditionally exempts:

Information developed pursuant to ORS 496.004, 496.172 and 498.026 » or ORS 496.192 and 564.100 », regarding the habitat, location or population of any threatened species or endangered species.

This exemption applies to information on endangered or threatened species related to the Department of Fish & Wildlife’s and Department of Agriculture’s roles in managing these wildlife and plant species.

The likely intent is to prevent disclosure to persons who might use the information in a manner adverse to the survival of the species. However, a requester’s benevolent intent and promise not to disclose the records to anyone else do not necessarily mean that the public body must disclose the record, as the body may have little basis to evaluate the requester’s intentions and no means to enforce the requester’s promise.[332]

(14)  Faculty Research

ORS 192.345(14) conditionally exempts:

Writings prepared by or under the direction of faculty of public educational institutions, in connection with research, until publicly released, copyrighted or patented.

This exemption is designed primarily to protect public educational institutions from “‘piracy’ * * * of research ideas and data collected by faculty members.”[333] A secondary purpose is avoiding the release of incomplete and inaccurate data.[334] Even if preliminary results have been published, the exemption may continue to apply to the underlying data if further research and publication will be undertaken using the same data.[335]

(15)  Computer Programs for the Use of Public Bodies

ORS 192.345(15) conditionally exempts:

Computer programs developed or purchased by or for any public body for its own use. As used in this subsection, “computer program” means a series of instructions or statements which permit the functioning of a computer system in a manner designed to provide storage, retrieval and manipulation of data from such computer system, and any associated documentation and source material that explain how to operate the computer program. “Computer program” does not include:

(a) The original data, including but not limited to numbers, text, voice, graphics and images;

(b) Analyses, compilations and other manipulated forms of the original data produced by use of the program; or

(c) The mathematical and statistical formulas which would be used if the manipulated forms of the original data were to be produced manually.

The legislature added this provision to prevent persons from obtaining from public bodies computer programs that they otherwise would have to purchase or develop themselves. The exclusions from the definition of computer program specified in subsections (a) through (c) ensure public access to electronic information created or obtained by a public body in conducting its statutory duties.

(16) Agricultural Producer Indebtedness Mediation Data

ORS 192.345(16) conditionally exempts:

Data and information provided by participants to mediation under ORS 36.256 ».

This exemption applies to mediation services coordinated by the Department of Agriculture in resolving disputes between agricultural producers in danger of foreclosure on their property and their creditors. All “memoranda, work products and other materials” contained in the department’s or mediator’s case files are also confidential.[336] Any mediation agreement, however, is not confidential.[337]

(17)  Unsafe Workplace Investigation Materials

ORS 192.345(17) conditionally exempts:

Investigatory information relating to any complaint or charge filed under ORS chapter 654 », until a final administrative determination is made or, if a citation is issued, until an employer receives notice of any citation.

This exemption applies to investigations of workplace safety and health by the Department of Consumer & Business Services,[338] regardless of who filed the complaint or charge.[339] While the complaint itself is not covered by this exemption,[340] the identity of an employee who makes a complaint will be kept confidential if the employee submits a written request.[341]

(18) Public Safety Plans

ORS 192.345(18) conditionally exempts:

Specific operational plans in connection with an anticipated threat to individual or public safety for deployment and use of personnel and equipment, prepared or used by a public body, if public disclosure of the plans would endanger an individual’s life or physical safety or jeopardize a law enforcement activity.

This exemption applies to operational plans of public bodies that are connected to anticipated threats to individual or public safety, as long as disclosure would endanger an individual’s safety or jeopardize a law enforcement activity. Examples are carrying out “sting” operations; protecting individuals and groups during high-profile court cases, demonstrations, or visits by dignitaries; or maintaining order after a natural disaster.

We have concluded that an Oregon State Police plan for law enforcement activities and crowd control at a Memorial Day event that had resulted in fires and the discharge of firearms in previous years was covered by this exemption; we noted that disclosing the plan would “allow individuals to learn the tactical procedures and deployment methods that OSP personnel will use, and to take measures to defeat them.”[342]

(19) Telecommunications Utility Audits

ORS 192.345(19) conditionally exempts:

(a) Audits or audit reports required of a telecommunications carrier. As used in this paragraph, “audit or audit report” means any external or internal audit or audit report pertaining to a telecommunications carrier, as defined in ORS 133.721 », or pertaining to a corporation having an affiliated interest, as defined in ORS 759.390 », with a telecommunications carrier that is intended to make the operations of the entity more efficient, accurate or compliant with applicable rules, procedures or standards, that may include self-criticism and that has been filed by the telecommunications carrier or affiliate under compulsion of state law. “Audit or audit report” does not mean an audit of a cost study that would be discoverable in a contested case proceeding and that is not subject to a protective order; and

(b) Financial statements. As used in this paragraph, “financial statement” means a financial statement of a nonregulated corporation having an affiliated interest, as defined in ORS 759.390 », with a telecommunications carrier, as defined in ORS 133.721 ».

This provision was proposed by telecommunications utilities, with the concurrence of the Public Utility Commission (PUC), to protect the affiliates’ financial statements and audits that become public records when the telecommunications carrier provides them to the PUC.[343] Release of the information may also provide a competitor of an affiliate with an unfair business advantage if this information is a trade secret.

(20) Voter’s Home Address

ORS 192.345(20) conditionally exempts:

The residence address of an elector if authorized under ORS 247.965 » and subject to ORS 247.967.

A county clerk is required to keep a voter’s home address exempt from disclosure if the voter demonstrates that the public availability of the address endangers the voter’s personal safety or the safety of any family member at the same address.[344] The factors used to determine whether an individual’s personal safety is in danger are found in statute[345] and in rules adopted by the Secretary of State.[346]

There are several exceptions to this exemption, such as when a county clerk receives a court order or a request from a law enforcement agency.[347]

(21)  Housing Authority and Urban Renewal Agency Records

ORS 192.345(21) conditionally exempts:

The following records, communications and information submitted to a housing authority as defined in ORS 456.005 », or to an urban renewal agency as defined in ORS 457.010 », by applicants for and recipients of loans, grants and tax credits:

(a) Personal and corporate financial statements and information, including tax returns;

(b) Credit reports;

(c) Project appraisals, excluding appraisals obtained in the course of transactions involving an interest in real estate that is acquired, leased, rented, exchanged, transferred or otherwise disposed of as part of the project, but only after the transactions have closed and are concluded;

(d) Market studies and analyses;

(e) Articles of incorporation, partnership agreements and operating agreements;

(f) Commitment letters;

(g) Project pro forma statements;

(h) Project cost certifications and cost data;

(i) Audits;

(j)  Project tenant correspondence requested to be confidential;

(k) Tenant files relating to certification; and

(L) Housing assistance payment requests.

This exemption applies to certain records submitted to local housing authorities and urban renewal agencies by individuals or businesses applying for or receiving certain funding related to affordable, government-subsidized housing or urban renewal projects. It was proposed to encourage participation by developers, contractors, financial institutions, and others in publicly financed low-income housing and urban-renewal transactions. This provision is somewhat similar to the exemption in ORS 192.355(23) for records obtained by the Oregon Housing and Community Services Department. Unlike ORS 192.355(23) however, this exemption is conditional, requiring consideration of the public interest in disclosure. A 2013 amendment to this exemption clarifies that appraisals obtained during transactions that involve the transfer of real property interests are subject to disclosure after those transfers have concluded.[348]

(22) Interference with Property or Services

ORS 192.345(22) conditionally exempts:

Records or information that, if disclosed, would allow a person to:

(a) Gain unauthorized access to buildings or other property;

(b) Identify those areas of structural or operational vulnerability that would permit unlawful disruption to, or interference with, services; or

(c) Disrupt, interfere with or gain unauthorized access to public funds or to information processing, communication or telecommunication systems, including the information contained in the systems, that are used or operated by a public body.

In part, this provision is intended to protect the delivery of the state’s public services. It exempts from disclosure information that would allow a person to gain unauthorized access to buildings, public funds, or information processing systems, or to identify areas of vulnerability that would permit unlawful disruption to or interference with public services or a public body’s information processing systems. A public body also may use the exemption to protect the security of property and services owned, used, or provided by private entities.[349]

We have concluded that information from railroad companies showing the past movements of hazardous materials was not exempt where no significant nonpublic information about future movements would be revealed, and where there was a public interest in being aware of the public safety risks resulting from these movements.[350] And we denied a petition for the teleconference call-in numbers and access codes in use by a public body where disclosure would allow anyone to use the state-funded toll-free service at the state’s expense, and where there was no evidence of a public interest in disclosure.[351]

(23) Security Measures

ORS 192.345(23) conditionally exempts from disclosure:

Records or information that would reveal or otherwise identify security measures, or weaknesses or potential weaknesses in security measures, taken or recommended to be taken to protect:

(a) An individual;

(b) Buildings or other property;

(c) Information processing, communication or telecommunication systems, including the information contained in the systems; or

(d) Those operations of the Oregon State Lottery the security of which are subject to study and evaluation under ORS 461.180(6) ».

This provision is also intended, in part, to protect the delivery of the state’s public services by exempting from disclosure information that would reveal the security measures taken or recommended to be taken to protect public employees, buildings, and information processing systems. It exempts not only actual or recommended security measures but also weaknesses or potential weaknesses in those measures. The exemption also applies to records concerning individuals, property, and systems beyond those connected to a public body. Finally, the measure specifically exempts from disclosure information that would reveal security measures of the Oregon State Lottery.

We have concluded that courthouse video surveillance footage of a car crash was exempt where disclosure would reveal the location of the courthouse’s hidden security cameras and potential blind spots; in assessing the public interest in disclosure, we noted that hundreds of photographs of the incident had already been publicly disclosed.[352]

(24) OHSU and Public University Donation Records

ORS 192.345(24) conditionally exempts:

Personal information held by or under the direction of officials of the Oregon Health and Science University or a public university listed in ORS 352.002 » about a person who has or who is interested in donating money or property to the Oregon Health and Science University or a public university, if the information is related to the family of the person, personal assets of the person or is incidental information not related to the donation.

The institutions covered by this exemption are the University of Oregon, Oregon State University, Portland State University, Oregon Institute of Technology, Western Oregon University, Southern Oregon University, Eastern Oregon University,[353] and OHSU.

(25)  Public University Donation Records

ORS 192.345(25) conditionally exempts:

The home address, professional address and telephone number of a person who has or who is interested in donating money or property to a public university listed in ORS 352.002 ».

Unlike the exemption in ORS 192.345(24), information need not be held by or under the direction of university officials to qualify for this exemption.

(26)  Commodity Commission Filers

ORS 192.345(26) conditionally exempts:

Records of the name and address of a person who files a report with or pays an assessment to a commodity commission established under ORS 576.051 to 576.455 », the Oregon Beef Council created under ORS 577.210 » or the Oregon Wheat Commission created under ORS 578.030 ».

This exemption relates to the producers who pay assessments to the Oregon Beef Council, the Oregon Wheat Commission, and commodity commissions,[354] and the reports filed by those who collect such assessments (typically first purchasers).[355]

(27) Financial Transfer Records

ORS 192.345(27) conditionally exempts:

Information provided to, obtained by or used by a public body to authorize, originate, receive or authenticate a transfer of funds, including but not limited to a credit card number, payment card expiration date, password, financial institution account number and financial institution routing number.

This exemption is intended to protect against unauthorized access to, and fraudulent use of, information that a public body possesses in relation to fund transfers. A public body may transfer funds to or receive a transfer of funds from members of the public as well as other public entities. To execute such transfers, the public body may have records containing information that could allow a person to access funds maintained in a private or public account. This provision protects that information from disclosure.

(28)  Social Security Numbers in Divorce Cases

ORS 192.345(28) conditionally exempts:

Social Security numbers as provided in ORS 107.840 ».

This exemption applies to Social Security numbers of parties to judicial proceedings for marital annulment, dissolution, separation, or summary dissolution, and to the numbers of the parties’ children.[356]

(29) University Student E-mail Addresses

ORS 192.345(29) conditionally exempts:

The electronic mail address of a student who attends a public university listed in ORS 352.002 » or Oregon Health and Science University.

The institutions covered by this exemption are the University of Oregon, Oregon State University, Portland State University, Oregon Institute of Technology, Western Oregon University, Southern Oregon University, Eastern Oregon University, and OHSU.

(30) OHSU Medical Researcher Records

ORS 192.345(30) conditionally exempts:

The name, home address, professional address or location of a person that is engaged in, or that provides goods or services for, medical research at Oregon Health and Science University that is conducted using animals other than rodents. This subsection does not apply to Oregon Health and Science University press releases, websites or other publications circulated to the general public.

The Court of Appeals has held that this exemption applied to the names of OHSU staff engaged in primate research.[357] In assessing the public interest in disclosure, the court noted that the researchers’ names were already publicly available, that the requester’s stated purpose of ensuring the proper treatment of animals did not depend on disclosure of staff names, and that evidence showed a history of harassment and threats by various animal rights groups.[358]

(31) Personal Information of Public Safety Officers Appearing in Certain Records

ORS 192.345(31) conditionally exempts:

If requested by a public safety officer, as defined in ORS 181A.355 »:

(a) The home address and home telephone number of the public safety officer contained in the voter  registration records for the public safety officer.

(b) The home address and home telephone number of the public safety officer contained in records of the Department of Public Safety Standards and Training.

(c) The name of the public safety officer contained in county real property assessment or taxation records. This exemption:

(A) Applies only to the name of the public safety officer and any other owner of the property in connection with a specific property identified by the officer in a request for exemption from disclosure;

(B) Applies only to records that may be immediately available to the public upon request in person, by telephone or using the Internet;

(C) Applies until the public safety officer requests termination of the exemption;

(D) Does not apply to disclosure of records among public bodies as defined in ORS 174.109 » for governmental purposes; and

(E) May not result in liability for the county if the name of the public safety officer is disclosed after a request for exemption from disclosure is made under this subsection.

Public safety officers include corrections officers, youth correction officers, emergency medical dispatchers, parole and probation officers, police officers, certified reserve officers, reserve officers, telecommunicators, regulatory specialists, and fire service professionals.[359]

(32) Personal Information of Certain Government Attorneys

ORS 192.345(32) conditionally exempts:

Unless the public records request is made by a financial institution, as defined in ORS 706.008 », consumer finance company licensed under ORS chapter 725 », mortgage banker or mortgage broker licensed under ORS 86A.095 to 86A.198 », or title company for business purposes, records described in paragraph (a) of this subsection, if the exemption from disclosure of the records is sought by an individual described in paragraph (b) of this subsection using the procedure described in paragraph (c) of this subsection:

(a) The home address, home or cellular telephone number or personal electronic mail address contained in the records of any public body that has received the request that is set forth in:

(A) A warranty deed, deed of trust, mortgage, lien, deed of reconveyance, release, satisfaction, substitution of trustee, easement, dog license, marriage license or military discharge record that is in the possession of the county clerk; or

(B) Any public record of a public body other than the county clerk.

(b) The individual claiming the exemption from disclosure must be a district attorney, a deputy district attorney, the Attorney General or an assistant attorney general, the United States Attorney for the District of Oregon or an assistant United States attorney for the District of Oregon, a city attorney who engages in the prosecution of criminal matters or a deputy city attorney who engages in the prosecution of criminal matters.

(c) The individual claiming the exemption from disclosure must do so by filing the claim in writing with the public body for which the exemption from disclosure is being claimed on a form prescribed by the public body. Unless the claim is filed with the county clerk, the claim form shall list the public records in the possession of the public body to which the exemption applies. The exemption applies until the individual claiming the exemption requests termination of the exemption or ceases to qualify for the exemption.

This exemption applies to the home address, home and cell phone numbers, and personal e-mail addresses of certain government attorneys engaged in the prosecution of criminal matters, but applies only upon request by the attorney and only to the public records specified by the attorney. However, for certain types of records in the possession of a county clerk, the specific public records containing the exempt information do not need to be listed. The exemption does not apply to public records requests made by financial institutions, consumer finance companies, mortgage bankers, mortgage brokers, or title companies.

This information is generally already exempt when in the personnel files of the attorney’s public employer, unless there is clear and convincing evidence that the public interest requires disclosure.[360]

(33) Land Management Plans

ORS 192.345(33) conditionally exempts:

The following voluntary conservation agreements and reports:

(a) Land management plans required for voluntary stewardship agreements entered into under ORS 541.973 »; and

(b) Written agreements relating to the conservation of greater sage grouse entered into voluntarily by owners or occupiers of land with a soil and water conservation district under ORS 568.550 ».

This exemption applies to the land management plans that are required by the voluntary stewardship agreements entered into between a landowner and the State Department of Agriculture or the State Board of Forestry; under these agreements, the landowner agrees to “self-regulate to meet and exceed applicable regulatory requirements and achieve conservation, restoration and improvement of fish and wildlife habitat or water quality.”[361] The land management plan includes a comprehensive description and inventory of the subject property, its features and uses, and a prescription for the protection of resources.[362]

The exemption applies also to voluntary agreements between the owner/occupiers of lands and social and water conservation districts that relate to the conservation of greater sage grouse.

(34)  SAIF Corporation Business Records

ORS 192.345(34) conditionally exempts:

Sensitive business records or financial or commercial information of the State Accident Insurance Fund Corporation that is not customarily provided to business competitors. This exemption does not:

(a) Apply to the formulas for determining dividends to be paid to employers insured by the State Accident Insurance Fund Corporation;

(b) Apply to contracts for advertising, public relations or lobbying services or to documents related to the formation of such contracts;

(c) Apply to group insurance contracts or to documents relating to the formation of such contracts, except that employer account records shall remain exempt from disclosure as provided in ORS 192.355(35); or

(d) Provide the basis for opposing the discovery of documents in litigation pursuant to the applicable rules of civil procedure.

The Oregon Court of Appeals has interpreted “sensitive” in a similarly worded exemption to apply to information that is “‘intended to be treated with a high degree of discretion.’”[363]

(35)  Public Safety Officer Investigations

ORS 192.345(35)  conditionally exempts:

Records of the Department of Public Safety Standards and Training relating to investigations conducted under ORS 181A.640 or 181A.870(6) », until the department issues the report described in ORS 181A.640 or 181A.870.

This exemption applies to DPSST investigations conducted to decide whether to deny, suspend, or revoke the certifications of public safety officers[364] or instructors,[365] or to determine whether the laws related to private security services have been violated.[366] However, the exemption expires once DPSST issues the report marking the end of the investigation.[367]

DPSST’s investigations of a police officer may involve obtaining a police department’s personnel investigation of that officer. While these records are conditionally exempt in the custody of the police departments,[368] we have concluded several times that, under the circumstances, these records were not exempt in DPSST’s custody; our decisions have been based in part on the strong public interest in transparency of police operations and of the certification of police officers.[369]

(36)  Medical Examiner Records

ORS 192.345(36) conditionally exempts:

A medical examiner’s report, autopsy report or laboratory test report ordered by a medical examiner under ORS 146.117 ».

This exemption does not apply to a records request by a deceased’s parent, spouse, sibling, child, or personal representative, or by a criminal or civil defendant in the death of the deceased.[370]

In assessing whether the public interest requires disclosure of a covered report, we have ordered disclosure where the report would shed light on the possible causes of a fatal car accident and on public concern with the safety of the bridge that was the accident site.[371] And we ordered disclosure of the names, ages, dates of death, and causes of death of homicide victims, noting that such information is frequently publicly disclosed and would not implicate privacy interests to the same extent as disclosure of the full reports.[372]

(37) Ongoing Audits of Public Bodies

ORS 192.345(37) conditionally exempts:

Any document or other information related to an audit of a public body, as defined in ORS 174.109 », that is in the custody of an auditor or audit organization operating under nationally recognized government auditing standards, until the auditor or audit organization issues a final audit report in accordance with those standards or the audit is abandoned. This exemption does not prohibit disclosure of a draft audit report that is provided to the audited entity for the entity’s response to the audit findings.

This exemption allows, but does not require, public bodies to decline to disclose documents and information related to audits of the public body (or audits by the public body of other public bodies) while the audit is ongoing. In order to qualify for this exemption, the auditor or audit organization must be operating under “nationally recognized government auditing standards,” and the audit must still be ongoing. An audit is ongoing when it has not been abandoned, and the final audit report in accordance with nationally recognized government auditing standards has not been issued. Note that this exemption expressly states that it “does not prohibit disclosure of a draft audit report that is provided to the audited entity for the entity’s response to the audit findings.”

(38)  Electronic Fare Information

ORS 192.345(38) conditionally exempts:

(a) Personally identifiable information collected as part of an electronic fare collection system of a mass transit system.

(b) The exemption from disclosure in paragraph (a) of this subsection does not apply to public records that have attributes of anonymity that are sufficient, or that are aggregated into groupings that are broad enough, to ensure that persons cannot be identified by disclosure of the public records.

(c) As used in this subsection:

(A) “Electronic fare collection system” means the software and hardware used for, associated with or relating to the collection of transit fares for a mass transit system, including but not limited to computers, radio communication systems, personal mobile devices, wearable technology, fare instruments, information technology, data storage or collection equipment, or other equipment or improvements.

(B) “Mass transit system” has the meaning given that term in ORS 267.010 ».

(C) “Personally identifiable information” means all information relating to a person that acquires or uses a transit pass or other fare payment medium in connection with an electronic fare collection system, including but not limited to:

(i) Customer account information, date of birth, telephone number, physical address, electronic mail address, credit or debit card information, bank account information, Social Security or taxpayer identification number or other identification number, transit pass or fare payment medium balances or history, or similar personal information; or

(ii)  Travel dates, travel times, frequency of use, travel locations, service types or vehicle use, or similar travel information.

Enacted in 2014,[373] this exemption applies to personally identifiable information of passengers using public transit. A significant impetus was TriMet’s new electronic fare collection system, and the concern that this system would be gathering information on a passenger’s travel patterns, and private financial and account information.[374]

(39)  Personal Information of Civil Code Enforcement Officers in Certain Records

ORS 192.345(39) conditionally exempts:

(a) If requested by a civil code enforcement officer:

(A)  The home address and home telephone number of the civil code enforcement officer contained in the voter  registration records for the officer.

(B) The name of the civil code enforcement officer contained in county real property assessment or taxation records. This exemption:

(i) Applies only to the name of the civil code enforcement officer and any other owner of the property in connection with a specific property identified by the officer in a request for exemption from disclosure;

(ii) Applies only to records that may be made immediately available to the public upon request in person, by telephone or using the Internet;

(iii) Applies until the civil code enforcement officer requests termination of the exemption;

(iv) Does not apply to disclosure of records among public bodies as defined in ORS 174.109 » for governmental purposes; and

(v) May not result in liability for the county if the name of the civil code enforcement officer is disclosed after a request for exemption from disclosure is made under this subsection.

(b) As used in this subsection, “civil code enforcement officer” means an employee of a public body, as defined in ORS 174.109 », who is charged with enforcing laws or ordinances relating to land use, zoning, use of rights-of-way, solid waste, hazardous waste, sewage treatment and disposal or the state building code.

Enacted in 2015,[375] this exemption applies upon request to public employees who enforce laws relating to land use, zoning, use of rights-of-way, solid waste, hazardous waste, sewage treatment and disposal, or the state building code. While it applies only to voter  registration records and county real property assessment or taxation records, public employee home addresses and phone numbers are also generally exempt when contained in personnel files, unless there is clear and convincing evidence that the public interest requires disclosure.[376]

(40)  Body Camera Footage

ORS 192.345(40) conditionally exempts:

Audio or video recordings, whether digital or analog, resulting from a law enforcement officer’s operation of a video camera worn upon the officer’s person that records the officer’s interactions with members of the public while the officer is on duty. When a recording described in this subsection is subject to disclosure, the following apply:

(a)  Recordings that have been sealed in a court’s record of a court proceeding or otherwise ordered by a court not to be disclosed may not be disclosed.

(b) A request for disclosure under this subsection must identify the approximate date and time of an incident for which the recordings are requested and be reasonably tailored to include only that material for which a public interest requires disclosure.

(c) A video recording disclosed under this subsection must, prior to disclosure, be edited in a manner as to render the faces of all persons within the recording unidentifiable.

Enacted in 2015,[377] this exemption applies to audio or video footage from a law enforcement officer’s body camera. Before disclosing this information in response to a public records request, the video must be edited to make any faces unidentifiable. The exemption was part of legislation requiring law enforcement agencies to establish policies and procedures on the use of body cameras.

b.  The Exemptions of ORS 192.355

Unlike the exemptions in ORS 192.345, the exemptions in ORS 192.355 are not dependent on whether “the public interest requires disclosure in the particular instance.” However, each of the exemptions in subsections (1) to (6) of ORS 192.355 expressly requires a particularized weighing of the public interest in disclosure; some of these exemptions contain balancing tests that are more pro-disclosure than the conditional exemptions of ORS 192.345.

(1) Internal Advisory Communications

ORS 192.355(1) exempts:

Communications within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to any final agency determination of policy or action. This exemption shall not apply unless the public body shows that in the particular instance the public interest in encouraging frank communication between officials and employees of public bodies clearly outweighs the public interest in disclosure.

The central thrust of this exemption is to encourage frankness and candor in opinions and recommendations exchanged within or between governmental bodies. Because it has several elements, and requires a showing by the public body that the interest in encouraging frank communication clearly outweighs the public interest in disclosure, it applies narrowly.

The exemption applies only if all five of the following criteria are met:

• the information is a frank communication within a public body or between public bodies;
• it is of an advisory nature (e.g., recommendations or opinions);
• it is communicated preliminary to any final agency action;
• it covers other than purely factual materials; and
• in the particular instance, the public interest in encouraging frank communication clearly outweighs the public interest in disclosure.

Even if parts of a record meet these criteria, factual material in the record must still be disclosed.[378] Even a report prepared for the purpose of providing an opinion or recommendation may contain purely factual portions that must be disclosed regardless of the public interest in disclosure.[379] It may be appropriate to withhold or redact a communication that is not advisory in itself, if the communication would reveal the substance of an exempt internal advisory communication.

(a) Types of Records

Public bodies sometimes mistakenly take the view that preliminary reports or recommendations may be withheld simply because they have not been reviewed or finalized. However, drafts or incomplete records are not inherently exempt from disclosure. Even before adoption of the Public Records Law, the Oregon Supreme Court held that data collected by a state agency in the course of carrying out a study was subject to inspection before the study was completed.[380]  

For example, although a board may not appreciate hearing about a report in the media before its members receive their copies, this does not justify delaying disclosure. Similarly, the minutes of a meeting of a public body are generally subject to disclosure regardless of whether they have been approved by the public body. Of course, a public body may inform the requester that the disclosed minutes have not been approved.

(b) Balancing Disclosure and Nondisclosure

The Oregon Court of Appeals has said that a public body faces a “daunting” burden to sustain this exemption.[381] The court’s opinions indicate that there must be a strong showing of a “chilling effect” based on something more than potential embarrassment to the public body or staff.[382]

For example, the court held that internal documents regarding the investigation and discipline of a police officer who killed a civilian during a traffic stop were not exempt, even though the public body argued that disclosure would diminish its employees’ ability to candidly evaluate supervisors, subordinates, and colleagues.[383] The court questioned whether disclosure would have a “seriously chilling effect” on future investigations, observing that disclosure would not reveal anonymous whistle blowers, personal criticism, or supervisory personnel judgments that were other than “clinical and detached.”[384] The court also stressed the public interest in disclosure, given the “highly inflammatory and widely reported” nature of the underlying incident.[385] The court found that the value of transparency to public confidence that a “thorough and unbiased” investigation had been undertaken was not “outweighed by the speculation that transparency w[ould] quell candor at some future date.”[386]

The court has also concluded that fish and wildlife biologists’ responses to questionnaires on the effectiveness of the Forest Practices Act were not exempt, despite the contention that disclosure would chill the free flow of information within the public body.[387] The court explained that “[a]ny ‘chilling effect’ that disclosure may have on future communications within the agency, because of potential embarrassment to the agency or its employees, is not sufficient, in and of itself, to overcome the presumption favoring disclosure.”[388]

We emphasize that a public body asserting this exemption should be able to explain why the particular circumstances show that disclosure would deter its employees from offering recommendations and opinions that are part of their job duties.[389] For example, we determined that a draft report on the costs of early shutdown of a nuclear power plant was not exempt where the final report containing essentially the same material was already public.[390] We explained that although there were some differences between the final and draft reports, the public body did not explain how disclosure of those specific differences would deter frank communications.[391] And we rejected an argument for nondisclosure that would justify the withholding of any advisory communications by public employees with sophisticated technical expertise.[392]

We have concluded that this exemption applied to the Oregon State Bar’s candid analysis of pending disciplinary proceedings against an attorney, noting that this internal analysis would be undermined by allowing disclosure to the accused attorney.[393] And we have determined that subjective evaluations contained in employment references were exempt where the references would not have provided their candid opinions if disclosure were anticipated.[394]

(2) Personal Privacy Exemption

ORS 192.355(2) exempts:

(a) Information of a personal nature such as but not limited to that kept in a personal, medical or similar file, if public disclosure would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in the particular instance. The party seeking disclosure shall have the burden of showing that public disclosure would not constitute an unreasonable invasion of privacy.

(b) Images of a dead body, or parts of a dead body, that are part of a law enforcement agency investigation, if public disclosure would create an unreasonable invasion of privacy of the family of the deceased person, unless the public interest by clear and convincing evidence requires disclosure in the particular instance. The party seeking disclosure shall have the burden of showing that public disclosure would not constitute an unreasonable invasion of privacy.

The purpose of this exemption is to protect the privacy of individuals from unreasonable invasion.[395] It reflects a policy that persons working for or dealing with the government should not be subject to indiscriminate disclosure of personal information merely because of that association. We emphasize that the exemption protects only the privacy of the person about whom the record contains information. Unlike the exemption for internal advisory communications found in ORS 192.355(1), the personal privacy exemption is not intended for the benefit of the public body.[396]

(a) Personal Information

The exemption applies to “personal” information, and to images of a dead body that are part of a law enforcement agency investigation. In concluding that an individual’s address contained in DMV records qualified as personal information, the Oregon Supreme Court noted that home addresses, age, weight, and home phone numbers will always be personal as they are specific to an individual.[397] The court relied on the dictionary definition of “personal”: “of or relating to a particular person: affecting one individual or each of many individuals: peculiar or proper to private concerns: not public or general.”[398]

In subsequent decisions, the Oregon Court of Appeals has focused on whether information specific to an individual is also “peculiar * * * to private concerns.” For example, the court held that the name of a claimant in an employment-related tort claim notice was not personal information because the process of sending a tort claim notice and resolving the claim were “matters of public concern [] rooted in statutory policy.”[399] And the court held that a personnel investigation of a police captain’s off-duty sexual conduct was not of a personal nature because the information had “a bearing on [the captain’s] qualification to serve in a position of public trust” and thus did “not affect him exclusively and [was] not peculiar to his private concerns.”[400]

(b) Unreasonable Invasion of Privacy

This exemption applies only when disclosure would constitute an unreasonable invasion of privacy. The biggest misconception about the exemption is that a public body merely needs to show that the requested information is personal in nature in order to shift the burden to the requester to show that disclosure would not be an unreasonable invasion of privacy. The Oregon Supreme Court has made clear that in order to sustain this exemption, the public body must first show that disclosure will unreasonably invade an individual’s privacy.[401]

That showing must be made on an individualized basis.[402] For example, the Oregon Supreme Court held that a school district’s blanket policy of nondisclosure of replacement teachers’ names and addresses was unenforceable.[403] In light of this decision, we have concluded that blanket nondisclosure policies with respect to hunting licensees’ phone numbers,[404] names of job applicants,[405] and dates of birth of DPSST licensees[406] were not consistent with the case law.

Whether disclosure will constitute an unreasonable invasion of privacy involves an objective test that will look to case-specific facts.[407] According to the court, the mere fact that “the information would not be shared with strangers is not enough to avoid disclosure.”[408] “A general desire ‘to be left alone’” is also insufficient grounds for a public body to assert this exemption.[409]

However, an individualized showing that “an ordinary reasonable person would deem [disclosure] highly offensive” will satisfy a finding of an unreasonable invasion of privacy.[410] For example, the Oregon Supreme Court held that an individual’s address was exempt from disclosure where disclosure would allow the requester to “harry [the individual] incessantly.”[411] The evidence showed that the requester had harassed the individual to such an extent that she established an unlisted phone number and post office box and rescheduled her day-to-day activities.[412]

The court’s analysis suggested that an unreasonable invasion of privacy can result not just from the initial disclosure, but also from the requester’s anticipated use of the records.[413] However, not all unwanted contact constitutes an unreasonable invasion of privacy. For example, we concluded that the names of a company’s shareholders related to a potential sale were not exempt despite assertions that the shareholders would become the “targets of uninvited media inquiries, critics of the transaction, and persons promoting investment vehicles or charitable causes.”[414] And in determining that the names of PERS retirees receiving more than $100k in annual benefits were not exempt, we noted that receiving unwanted solicitations would be “an annoyance, but hardly ‘highly offensive’ to the ordinary reasonable person.”[415]

The Oregon Supreme Court has indicated that an individual may be permitted to explain to a public body why disclosure of information about that individual should be withheld from disclosure under this exemption.[416] Public bodies may want to solicit input from affected individuals before disclosing arguably private information. Ultimately, however, the decision to withhold any information must be made by the public body, which bears the burden of sustaining such an action.[417]

(c) Balancing Disclosure and Nondisclosure

If disclosing personal information would constitute an unreasonable invasion of privacy, the public body must then determine whether the public interest by clear and convincing evidence requires disclosure in the particular instance. Only when there is no overriding public interest in disclosure may the public body lawfully withhold the information.[418]

(d) Applying the Exemption

Frequently, similar factors are involved in determining whether disclosure would constitute an unreasonable invasion of privacy and whether there is an overriding public interest in disclosure. These include whether the information has been kept private, the connection of the information to a matter affecting a public body, the amount of harm that would result to the affected individual from disclosure, and the affected individual’s expectation of privacy.

Ordinarily, disclosure of a person’s name itself will not constitute an unreasonable invasion of privacy. For example, we concluded that the names of jurors from a specific case were not exempt where their names had been spoken in open court.[419] We also determined that the names of shareholders of a parent company that was selling a coordinated care organization were not exempt based on that information’s connection to DCBS’s statutory duty to review the proposed sale, and the organization’s receipt of significant money from public programs.[420] And we found that the names of public employees involved in a particular high-profile matter were not exempt where there was no evidence that disclosure would cause physical harm to or harassment of the employees.[421] But we have suggested that names of nonfinalist job applicants would be exempt if disclosure would damage an applicant’s relationship with a current employer.[422]

Disclosure by a public body of an individual’s address, telephone number, or e-mail address generally would not be highly offensive so as to come within this exemption: reasonable persons routinely provide this information for a variety of purposes—they are imprinted on checks, placed on outgoing letters and e-mails, and found in telephone directories, land records, and voter registration records.[423]

However, even this information might be exempt if physical harm or harassment would be reasonably anticipated.[424] And there may be other exemptions that apply to this information without requiring an individualized showing of an unreasonable invasion of privacy. For example, various personal information about public employees and volunteers that is contained in a public employer’s personnel records is exempt, unless there is clear and convincing evidence of a public interest requiring disclosure: this includes home addresses, home phone numbers, personal cell phone numbers, personal e-mail addresses, driver license numbers, dates of birth, and Social Security numbers.[425] And the Department of Transportation is prohibited, with certain exceptions, from disclosing names, addresses, telephone numbers, and driver license numbers contained in its motor vehicle records.[426]

Personal medical information is also potentially protected by this exemption, and is generally regarded as highly private. We have concluded that DMV information about a car accident that revealed an individual’s diagnosis and treatment was exempt.[427] And we determined that the names of medical marijuana cardholders whose grower had been criminally investigated were exempt.[428]

However, we ordered disclosure of portions of the mental health records of a patient who had recently been released from the jurisdiction of the Psychiatric Security Review Board.[429] We explained that there was a diminished privacy interest where the records had been discussed at a public hearing and had been relied upon by the patient in arguing for release from the board’s jurisdiction.[430] We also emphasized that the board had decided to release the patient based on evidence he had feigned mental disease for 20 years, and that the patient was arrested on new murder charges shortly after release.[431] These facts indicated a strong public interest in understanding the board’s and state hospital’s decisions.

Information concerning the manner in which any public officer or employee carries out the duties of the office or employment generally will not come within this exemption.[432] For example, the Oregon Court of Appeals concluded that disclosure of personal information regarding a public official’s ostensibly private conduct did not constitute an unreasonable invasion of privacy where “the conduct involved directly [bore] on the possible compromise of a public official’s integrity in the context of his public employment.”[433]

And that court, in discussing a different exemption, explained that “any privacy rights that public officials have as to the performance of their public duties must generally be subordinated to the right of the citizens to monitor what elected and appointed officials are doing on the job.”[434]

Relying on that analysis, we have concluded that a manager’s performance evaluation was not exempt, noting that the substantial public interest in knowing how management functions were being performed outweighed the public interest in a candid evaluation process.[435] We have also decided that the names of PERS retirees receiving annual benefits above $100k—and the specific benefit amount—were not exempt because, among other reasons, information about who is receiving money from a public body and how much they are receiving is of significant public interest.[436] Similarly, we determined that a public employee’s gross salary was not exempt because the public interest in knowing this information indicated the lack of a reasonable expectation of privacy.[437] And we have noted that information on employees’ leave time would not be exempt because coworkers are typically aware of the general reason and length of time that an employee is off from work.[438]  

(e) Related Exemptions

Several other exemptions apply to information of a personal nature. Here we discuss two that are codified in ORS chapter 192.

i.   The Personal Safety Exemption

If an individual demonstrates to a public body that disclosing the individual’s home address, personal telephone number, or personal e-mail address would endanger that individual’s personal safety, or the personal safety of a family member residing with the individual, then the public body may not disclose that information.[439] In order to obtain this confidentiality, the individual must submit a written request to the relevant public body that specifies the public records(s) containing this information, and that presents evidence of the danger that disclosure would cause.[440] The public body must review such a request and notify the individual in writing whether the request is granted or denied;[441] the public body may not be held liable for its decision.[442] If confidentiality is granted, it lasts no more than five years.[443]

Examples of evidence that can be used to make the required showing include the fact that the individual has been a victim of domestic violence, or has obtained a temporary restraining order or other no contact order to protect against future physical abuse.[444]

The Attorney General has authority to adopt rules applicable to all public bodies that describe the procedures for submitting a request for confidentiality and the evidence that must be provided to establish the validity of such a request.[445] Those rules are available at OAR 137-004-0800 », and in Appendix G.

Even if confidentiality is granted, the affected public records may be disclosed in response to a court order, a request from a law enforcement agency, or with the individual’s consent.[446]

When a state agency, following the requirements of the statute and the Attorney General’s uniform rule, grants a confidentiality request, the Attorney General’s office will not substitute its judgment for the agency’s when responding to a petition to review the agency’s decision.[447]

ii.  Concealed Handgun Licenses

All public bodies, except the Judicial Department,[448] are generally prohibited from disclosing records that identify a person as a current or former holder of, or applicant for, a concealed handgun license.[449]

However, there are several exceptions to this prohibition:

• when disclosing this information to another public body if necessary for criminal justice purposes;
• when a court orders disclosure; or
• when the affected individual provides written consent.[450]

In addition, the public body can disclose the name, age, and county of the holder or applicant if the public body determines that a compelling public interest requires disclosure in the particular instance.[451] Determining whether a compelling public interest requires disclosure should be based, at a minimum, on a written statement and/or supporting evidence submitted by the requester.[452]

The public body can also confirm or deny that an individual convicted of certain crimes or subject to a protective order is a current holder of a concealed handgun license, as long as the requester is the victim of that crime or protected by the relevant protective order and has submitted the name and age of the potential licensee.[453]

And the public body can confirm or deny that a person convicted of a crime involving the use or possession of a firearm is a current holder of a concealed handgun license, but only to a bona fide representative of the news media.[454]

(3) Public Employee Personal Information

ORS 192.355(3) exempts:

Upon compliance with ORS 192.363, public body employee or volunteer residential addresses, residential telephone numbers, personal cellular telephone numbers, personal electronic mail addresses, driver license numbers, employer-issued identification card numbers, emergency contact information, Social Security numbers, dates of birth and other telephone numbers contained in personnel records maintained by the public body that is the employer or the recipient of volunteer services. This exemption:

(a) Does not apply to the addresses, dates of birth and telephone numbers of employees or volunteers who are elected officials, except that a judge or district attorney subject to election may seek to exempt the judge’s or district attorney’s address or telephone number, or both, under the terms of ORS 192.368;

(b) Does not apply to employees or volunteers to the extent that the party seeking disclosure shows by clear and convincing evidence that the public interest requires disclosure in a particular instance pursuant to ORS 192.363;

(c) Does not apply to a substitute teacher as defined in ORS 342.815 » when requested by a professional education association of which the substitute teacher may be a member; and

(d) Does not relieve a public employer of any duty under ORS 243.650 to 243.782 ».

This provision exempts from disclosure various personal contact information and other personal information about a public employee or volunteer, as long as that information is contained in the public employer’s personnel records. The exemption does not apply if the requester shows by clear and convincing evidence that the public interest requires disclosure.[455]

A unique procedure applies to requests for the covered information: the requester must specify which employees’ personal information is being sought, which type of personal information is being sought, and must state why the public interest requires disclosure.[456] The public employer then must forward that information to the affected employees or to the representative of those employees, and must wait at least seven days before disclosing any of the requested information.[457]

Even though the Oregon Public Records Law typically gives a public body the discretion to disclose exempt public records, we note that under this exemption the public employer “shall disclose requested information only if [it] determines that the party seeking disclosure has demonstrated by clear and convincing evidence that the public interest requires disclosure.”[458] Thus, any public employer considering exercising its discretion to disclose this type of information should first consult its legal counsel regarding whether it must first assess the relevant public interests.

While home care workers, personal support workers, operators of child care facilities, exempt family child care providers, and operators of an adult foster home are not generally considered public employees, public bodies may not disclose certain personal information about these individuals, unless the requester shows by clear and convincing evidence that the public interest requires disclosure.[459] The covered information is similar to the information described in ORS 192.355(3). The procedures for submitting and processing a request for such information are the same as described above.[460]

(a) Public Employee Photo ID

A public body also may not disclose a public employee’s identification badge or card without the employee’s consent.[461] Disclosing a badge or card is prohibited only if it contains the employee’s photograph and was prepared solely for the public body’s internal use in identifying employees.[462]

(4) Confidential Submissions

(a) Generally

ORS 192.355(4) exempts:

Information submitted to a public body in confidence and not otherwise required by law to be submitted, where such information should reasonably be considered confidential, the public body has obliged itself in good faith not to disclose the information, and when the public interest would suffer by the disclosure.

The purpose of this exemption is to encourage voluntary submission of relevant information to public bodies, with some reasonable assurance that the information will be kept confidential. Just like the exemption protecting against unreasonable invasion of an individual’s privacy, this exemption is designed to protect the person submitting the information, not the public body. It clearly does not apply if the public body requests that information be submitted in confidence merely to avoid embarrassment to itself. And in determining whether this exemption applies, the public body must act “on an ‘individualized, case-by-case basis.’”[463]

There are no less than five conditions that must be met for the exemption to apply:

• The informant must have submitted the information on the condition that it would be kept confidential.
• The informant must not have been required by law to provide the information.
• The information itself must be of a nature that reasonably should be kept confidential.
• The public body must show that it has obliged itself in good faith not to disclose the information.
• Disclosure of the information must cause harm to the public interest.[464]

The first condition is whether the information was submitted in confidence. Many public bodies receive information that reasonably could be considered confidential, without any specific request for confidentiality. It is very difficult to justify nondisclosure in such a case. The public body must be able to present evidence that there was a condition or understanding at the time the information was provided that the information would be held in confidence.[465] For example, we found this condition absent, despite the public body’s promise of confidentiality, where the informants would have provided the information even without that promise.[466]

Therefore, public bodies should specifically discuss with the person submitting the information whether it is being submitted in confidence and, if so, document that in the file.[467]

The second condition is whether the informant is “not otherwise required by law” to provide the information. If the informant is required to submit the information pursuant to a governmental enactment such as a statute or rule, this exemption will not apply.[468] However, an informant whose legal obligation to submit information arises solely under the terms of a contract with a public body is not “required by law” to submit the information, unless the informant is required by law to sign a contract with those terms.[469] We note, however, that a contract’s lack of a confidentiality provision may affect the other conditions necessary to apply this exemption.

The third condition is whether the information itself should reasonably be considered confidential. This condition would generally be met if disclosure of the information is restricted by statute or is exempt from disclosure under other exemptions of the Public Records Law. If the information is publicly available, obtainable, or observable, it cannot reasonably be considered confidential.[470] Our discussion below on the public interest condition also informs the analysis here, as these two conditions can be closely related in certain cases.[471]

The fourth condition is whether the public body obliged itself in good faith not to disclose the information. An informant’s request for confidentiality is not sufficient to satisfy this condition. For example, we determined that a private attorney’s settlement offer that was marked “confidential” was not exempt because there was no indication that the public body had obliged itself to confidentiality or even discussed confidentiality with the attorney.[472] But the public body need not have given a written commitment as long as there was a clear statement or understanding that the public body would not disclose the information.[473] An explicit statement that the public body will not disclose the information unless required by law is sufficient, as long as the public body acts in good faith in making the promise.

The final condition is whether disclosing the information would harm the public interest. Even if all the other conditions are met, if the public interest would not suffer by disclosure, the exemption does not apply. This condition requires consideration not only of the impact of the disclosure on the particular informant providing the information but also of the likelihood that disclosure would discourage other informants from providing information in confidence in the future.

For example, the Oregon Court of Appeals found that this condition was met where disclosing information submitted by manufacturers of video terminal equipment to the State Lottery that contained bank account numbers, tax returns, and other personal information would discourage distributors “from applying for contracts[,] thereby reducing competition for video lottery terminals.”[474]

And we have concluded that the public interest would suffer where disclosing the responses by a job applicant’s employment references would harm the public employer’s ability to “gather candid information” about job applicants, and could thus “hinder informed hiring decisions.”[475] However, the public interest would not suffer if it is possible to redact the identifying information from the reference form.[476]

When false information is provided to a public body in bad faith, its disclosure will likely be required—even if the same type of information provided in good faith would be exempt.[477]

Even if not covered by this exemption, an informant’s identity may be confidential when providing information to a law enforcement officer or legislative committee about a possible violation of law.[478]

(b) Personal Contact Information

ORS 192.377 prohibits disclosing some personal contact information if it was submitted in confidence:

A public body that is the custodian of or is otherwise in possession of information that was submitted to the public body in confidence and is not otherwise required by law to be submitted, must redact all of the following information before making a disclosure described in ORS 192.355(4):

(1) Residential address and telephone numbers;

(2) Personal electronic mail addresses and personal cellular telephone numbers;

(3) Social Security numbers and employer-issued identification card numbers; and

(4) Emergency contact information.

Information must qualify for the exemption of ORS 192.355(4) in order for this prohibition to apply.[479]

(5) Corrections and Parole Board Records

ORS 192.355(5) exempts:

Information or records of the Department of Corrections, including the State Board of Parole and Post-Prison Supervision, to the extent that disclosure would interfere with the rehabilitation of a person in custody of the department or substantially prejudice or prevent the carrying out of the functions of the department, if the public interest in confidentiality clearly outweighs the public interest in disclosure.

For this exemption to apply to Corrections or Parole Board records, there must first be a showing that disclosure would interfere with the rehabilitation of a person in custody, or would substantially prejudice or prevent carrying out department or board functions. Even if one of these conditions is met, withholding is appropriate only if the public interest in confidentiality clearly outweighs the public interest in disclosure.

If disclosure would threaten or impair Corrections’ ability to preserve internal order and discipline in its correctional facilities, to maintain facility security against escape or unauthorized entry, or to protect the public’s safety, the public interest in confidentiality will, in most circumstances, clearly outweigh the public interest in disclosure.

For example, we concluded that portions of a security audit revealing specific security practices were exempt because this information could be used to circumvent security measures.[480] And we determined that both the medical screening criteria used in determining whether an inmate could be transferred out of state and the policy and procedures on the management of hunger strikes were exempt because disclosure would jeopardize the ability to manage and control the prison population.[481]

Although exempt public records generally become disclosable after 25 years,[482] Corrections and Parole records pertaining to a person who is or has been in custody or supervision remain exempt for 25 years after termination of custody or supervision, but only if disclosure would interfere with that person’s rehabilitation and the public interest in confidentiality clearly outweighs the public interest in disclosure.[483]

(6) Lending Institution Records

ORS 192.355(6) exempts:

Records, reports and other information received or compiled by the Director of the Department of Consumer and Business Services in the administration of ORS chapters 723 and 725 not otherwise required by law to be made public, to the extent that the interests of lending institutions, their officers, employees and customers in preserving the confidentiality of such information outweighs the public interest in disclosure.

This exemption generally deals with DCBS records used in regulating credit unions[484] and consumer finance.[485]

(7) Presentence and Probation Reports

ORS 192.355(7) exempts:

Reports made to or filed with the court under ORS 137.077 or 137.530 ».

This exemption applies to presentence reports on criminal defendants prepared by the Department of Corrections[486] or by parole or probation officers.[487] Although public bodies can typically disclose records that are exempt from disclosure, we note here that a separate statute provides that presentence reports are not public records and are available only to certain parties.[488]

Presentence reports can be disclosed to the sentencing court; other judges who participate in a sentencing council discussion; the Department of Corrections and the Parole Board; persons or agencies with a legitimate professional interest; appellate or review courts; the district attorney; and the defendant or defendant’s counsel.[489] These permitted recipients can disclose the presentence reports (or information from the reports) to certain persons and agencies in specified circumstances. For example, the Department of Corrections and Parole Board can provide the report to the victim.[490]

(8) Federal Law Exemption

ORS 192.355(8) exempts:

Any public records or information the disclosure of which is prohibited by federal law or regulations.

The many federal laws and regulations that prohibit or limit disclosure of particular records (e.g., public assistance and unemployment insurance records, certain student records, and records containing “protected health information”) in the possession of public bodies of this state are beyond the scope of this manual. Individual public bodies should be familiar with the laws and regulations applicable to any federal program with which they are involved.

To claim this exemption, public bodies must be able to point to a specific federal law or regulation that limits disclosure. For example, we concluded that federal regulations that permitted the Food and Drug Administration to disclose confidential records to certain state government officials, but provided that these recipients were subject to the same restrictions on disclosure, qualified as an exemption from disclosure under Oregon law.[491] And we determined that a federal law restricting the release of student records qualified as an exemption because it expressed a “clearly prohibitory policy” through the withholding of federal funds.[492]

However, the relevant federal law must apply to the Oregon public body at issue and must prohibit the contemplated disclosure. For example, we concluded that exemptions to federal public records law that applied to federal authorities and allowed, but did not require, those authorities to withhold records, could not be asserted by a state agency.[493]

(9) Other Oregon Statutes Establishing Specific Exemptions

ORS 192.355(9)(a) exempts:

Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential or privileged under Oregon law.

This exemption incorporates any Oregon confidentiality law found outside of the Public Records Law, to the extent the law applies to the relevant public body. See Appendix F for a partial list of Oregon statutes exempting information from public disclosure. A full, searchable list is available at https://justice.oregon.gov/PublicRecordsExemptions ».

While the attorney-client privilege recognized by ORS 40.225 is also incorporated as an exemption, its scope is narrowed in certain circumstances that are discussed below.

(a) In General

Statutes are incorporated as exemptions when, for example, they refer to information as confidential, exempt, privileged, or not subject to public inspection; or when they state that the information may or shall not be disclosed, or that it is unlawful to disclose the information. For instance, health professional regulatory boards “shall keep confidential and not disclose to the public” certain investigatory information.[494]

Whether the statute permits exceptions to confidentiality, or provides the public body with discretion to disclose, must be evaluated on a statute-by-statute basis.

The general rules requiring that exemptions must be expressly stated and construed narrowly also apply to statutes that are incorporated by ORS 192.355(9).[495] For example, the Oregon Court of Appeals concluded that a statute affirmatively allowing the State Medical Examiner to disclose reports to specific people could not be used to infer a general prohibition against disclosing the same information to the public.[496]

(b) Attorney-Client Privilege

Records that are protected by the attorney-client privilege are also ordinarily exempt from disclosure under the Public Records Law.[497] However, for purposes of the Public Records Law, the privilege does not exempt factual information from disclosure if all of the following criteria are met:

• The information is not otherwise exempt from disclosure;
• The information was compiled by or at the direction of an attorney as part of an investigation on behalf of the public body in response to information of possible wrongdoing by the public body;
• The information was not compiled in preparation for litigation, arbitration, or an administrative proceeding likely to be initiated or actually initiated; and
• The holder of the privilege has made or authorized a public statement characterizing or partially disclosing the factual information.[498]

The initial step in the analysis is determining whether the factual information at issue is covered by the attorney-client privilege. If the information is privileged, the public body should next determine whether all the above criteria are met. If they are, the public body must either produce the factual information, or prepare and produce a condensation of the significant facts.[499] Producing a factual condensation does not waive the attorney-client privilege.[500]

A requester may seek review of this condensation in the same manner as if the records request had been denied.[501] The reviewing authority will, “in addition to reviewing the records to which access was denied, compare those records to the condensation to determine whether the condensation adequately describes the significant facts contained in the records.”[502]

(10)  Transferred Records

ORS 192.355(10) exempts:

Public records or information described in this section, furnished by the public body originally compiling, preparing or receiving them to any other public officer or public body in connection with performance of the duties of the recipient, if the considerations originally giving rise to the confidential or exempt nature of the public records or information remain applicable.

State and local public bodies regularly exchange records with each other in connection with their mutual functions and duties. It is possible that both the public body furnishing the records and the public body receiving the records are custodians of their respective copies because both bodies have the records for their own programmatic purposes.[503] That is, each public body would be responsible for responding to a request for those records. However, a public body is not the custodian of a record that it possesses as an agent of another public body, unless the public record is not otherwise available.[504] In these cases, the noncustodian may merely refer the requester to the actual custodian.

When a public body receives exempt public records from another public body, the records remain exempt if the reasons for confidentiality remain applicable.[505] This analysis involves looking to both the reasons behind confidentiality in the originating public body’s custody and the uses contemplated by the receiving public body. For example, in concluding that a state hospital patient’s mental health records did not remain exempt when transferred from the hospital to the Psychiatric Security Review Board, we explained that the medical privacy  underlying the confidentiality of these records in the hospital’s custody was diminished when transferred to the board for use in deciding an issue of public safety at a public hearing. [506]

Before disclosing records that it has received from another public body, a public body should discuss with the originating public body whether redisclosure is prohibited, and may also want to discuss whether the records are exempt.[507] It is important to note that ORS 192.355(10) does not act as a prohibition on redisclosure; that is, the receiving public body has discretion whether to disclose the records, unless expressly prohibited.[508]

(11)  Security Programs for Transporting Radioactive Material

ORS 192.355(11) exempts:

Records of the Energy Facility Siting Council concerning the review or approval of security programs pursuant to ORS 469.530 ».

This exemption deals with the Energy Facility Council’s role in reviewing and approving security measures related to nuclear power plants, and to the transportation of radioactive material.[509] Because of the sensitivity surrounding such information, the council’s review and approval of these security measures is not subject to Public Meetings Law.[510]

(12)  PERS Nonfinancial Information about Members

ORS 192.355(12) exempts:

Employee and retiree address, telephone number and other nonfinancial membership records and employee financial records maintained by the Public Employees Retirement System pursuant to ORS chapters 238 and 238A.

This exemption applies to two categories of information maintained by PERS: nonfinancial membership records of employees and retirees, and employee financial records.

Nonfinancial membership records include employee and retiree addresses, telephone numbers, and other nonfinancial information “the disclosure of which would intrude on a member’s privacy.”[511]

Employee financial records are records containing financial information that relate to the person’s role as an employee, not as a retiree.[512] For example, we concluded that a retiree’s annual pay at the time of retirement was exempt because it qualified as financial information and was transmitted to PERS from the PERS member’s employer.[513]

We have determined that the following PERS information is not exempt: the fact that a person is a PERS member;[514] the date a person became a member;[515] retiree names, employers at the time of retirement, years of service, and job classification;[516] a retiree’s current monthly benefit,[517] the PERS plan under which the retiree retired;[518] which of the three available formulas was used to compute each retiree’s benefit;[519] the amount of accrued sick leave and vacation leave used to determine each retiree’s benefits;[520] and whether a retiree obtained health benefits through PERS.[521]

(13) Records Relating to the State Treasurer or OIC Publicly Traded Investments

ORS 192.355(13) exempts:

Records of or submitted to the State Treasurer, the Oregon Investment Council or the agents of the treasurer or the council relating to active or proposed publicly traded investments under ORS chapter 293, including but not limited to records regarding the acquisition, exchange or liquidation of the investments. For the purposes of this subsection:

(a) The exemption does not apply to:

(A) Information in investment records solely related to the amount paid directly into an investment by, or returned from the investment directly to, the treasurer or council; or

(B) The identity of the entity to which the amount was paid directly or from which the amount was received directly.

(b) An investment in a publicly traded investment is no longer active when acquisition, exchange or liquidation of the investment has been concluded.

This exemption makes confidential the records provided to the State Treasurer or Oregon Investment Council by private businesses or individuals related to proposed or active acquisition, exchange, or liquidation of publicly traded investments.[522] The exemption does not apply to records related to concluded transactions.

These exemptions are intended to place the state on an equal footing with private investors in making investments, by maintaining the confidentiality of information concerning investments that are still under consideration. The provision also protects the public’s right to know how public funds are invested by expressly stating that information regarding concluded investment transactions is not subject to the exemption. The exemption also does not apply to information regarding the amount of an investment, the return on an investment, or the identity of the entity with which the investment was placed.

(14) Records Relating to the State Treasurer or OIC Investment in Private Fund or Asset

ORS 192.355(14)   exempts:

(a) Records of or submitted to the State Treasurer, the Oregon Investment Council, the Oregon Growth Board or the agents of the treasurer, council or board relating to actual or proposed investments under ORS chapter 293 or 348 in a privately placed investment fund or a private asset including but not limited to records regarding the solicitation, acquisition, deployment, exchange or liquidation of the investments including but not limited to:

(A) Due diligence materials that are proprietary to an investment fund, to an asset ownership or to their respective investment vehicles.

(B) Financial statements of an investment fund, an asset ownership or their respective investment vehicles.

(C) Meeting materials of an investment fund, an asset ownership or their respective investment vehicles.

(D) Records containing information regarding the portfolio positions in which an investment fund, an asset ownership or their respective investment vehicles invest.

(E) Capital call and distribution notices of an investment fund, an asset ownership or their respective investment vehicles.

(F) Investment agreements and related documents.

(b) The exemption under this subsection does not apply to:

(A) The name, address and vintage year of each privately placed investment fund.

(B) The dollar amount of the commitment made to each privately placed investment fund since inception of the fund.

(C) The dollar amount of cash contributions made to each privately placed investment fund since inception of the fund.

(D) The dollar amount, on a fiscal year-end basis, of cash distributions received by the State Treasurer, the Oregon Investment Council, the Oregon Growth Board or the agents of the treasurer, council or board from each privately placed investment fund.

(E) The dollar amount, on a fiscal year-end basis, of the remaining value of assets in a privately placed investment fund attributable to an investment by the State Treasurer, the Oregon Investment Council, the Oregon Growth Board or the agents of the treasurer, council or board.

(F) The net internal rate of return of each privately placed investment fund since inception of the fund.

(G) The investment multiple of each privately placed investment fund since inception of the fund.

(H) The dollar amount of the total management fees and costs paid on an annual fiscal year-end basis to each privately placed investment fund.

(I) The dollar amount of cash profit received from each privately placed investment fund on a fiscal year-end basis.

This exemption is similar to ORS 192.355(13), but relates to investments in privately placed investment funds or a private asset, as opposed to publicly traded investments. It does not apply to concluded investments or to the name of the investment fund, the amount invested, or the amount of return on the investment.

(15)  Public Employees Retirement Fund and Industrial Accident Fund Monthly Reports

ORS 192.355(15) provides that:

The monthly reports prepared and submitted under ORS 293.761 and 293.766 » concerning the Public Employees Retirement Fund and the Industrial Accident Fund may be uniformly treated as exempt from disclosure for a period of up to 90 days after the end of the calendar quarter.

This exemption applies to the monthly reports on investments concerning two specific funds that are submitted by the State Treasurer  to the Oregon Investment Council. Release of the information in these monthly reports would give other investment managers information regarding investments and liquidations that would prevent the Oregon Investment Council from getting the best return for these funds. The exemption lasts only until 90 days after the end of the calendar quarter, which reflects the State Treasurer’s practice prior to the enactment of this exemption.

(16)  Unclaimed Property Reports

ORS 192.355(16) exempts:

Reports of unclaimed property filed by the holders of such property to the extent permitted by ORS 98.352 ».

Persons holding unclaimed property are required to annually report the property to the Department of State Lands once it is presumed abandoned.[523] Such records are exempt from disclosure for 12 months from the time the property becomes reportable and for 24 months after the property has been remitted to the department.[524] For public bodies holding abandoned property, any list of those properties is exempt until 24 months after the property is remitted to the department.[525]

The intent of this exemption is to shield such information from professional “bounty hunters” (persons who, for a commission, help owners recover unclaimed property) while the department attempts to find the owners.[526]

(17)  Economic Development Information

ORS 192.355(17)(a) exempts:

The following records, communications and information submitted to the Oregon Business Development Commission, the Oregon Business Development Department, the State Department of Agriculture, the Oregon Growth Board, the Port of Portland or other ports, as defined in ORS 777.005 », or a county or city governing body and any board, department, commission, council or agency thereof, by applicants for investment funds, grants, loans, services or economic development moneys, support or assistance including, but not limited to, those described in ORS 285A.224 »:

(A) Personal financial statements.

(B) Financial statements of applicants.

(C) Customer lists.

(D) Information of an applicant pertaining to litigation to which the applicant is a party if the complaint has been filed, or if the complaint has not been filed, if the applicant shows that such litigation is reasonably likely to occur; this exemption does not apply to litigation which has been concluded, and nothing in this subparagraph shall limit any right or opportunity granted by discovery or deposition statutes to a party to litigation or potential litigation.

(E) Production, sales and cost data.

(F) Marketing strategy information that relates to applicant’s plan to address specific markets and applicant’s strategy regarding specific competitors.

ORS 192.355(17)(b) also exempts these same types of records, communications, and information submitted to the State Department of Energy by applicants for tax credits or grants for renewable energy production systems.[527] We have interpreted, in the context of a different exemption, the phrase “financial statements of applicants” to encompass projected, or “pro-forma” financial statements of loan applicants, at least when derived from information specific to the project for which a loan is sought.[528]

(18) Transient Lodging Tax Records

ORS 192.355(18) exempts:

Records, reports or returns submitted by private concerns or enterprises required by law to be submitted to or inspected by a governmental body to allow it to determine the amount of any transient lodging tax payable and the amounts of such tax payable or paid, to the extent that such information is in a form which would permit identification of the individual concern or enterprise. Nothing in this subsection shall limit the use which can be made of such information for regulatory purposes or its admissibility in any enforcement proceedings. The public body shall notify the taxpayer of the delinquency immediately by certified mail. However, in the event that the payment or delivery of transient lodging taxes otherwise due to a public body is delinquent by over 60 days, the public body shall disclose, upon the request of any person, the following information:

(a) The identity of the individual concern or enterprise that is delinquent over 60 days in the payment or delivery of the taxes.

(b) The period for which the taxes are delinquent.

(c) The actual, or estimated, amount of the delinquency.

This exemption applies to records required to be submitted to or inspected by a “governmental body” in relation to determining the amount of transient lodging tax due, and requires disclosure of specified information when payment or delivery of taxes otherwise due is delinquent by over 60 days. Because similar information related to the state transient lodging tax is already confidential under other laws,[529] we think the intent of this exemption is to apply to transient lodging taxes assessed by local governments.[530]

(19) Information for Obtaining Court-Appointed Counsel

ORS 192.355(19) exempts:

All information supplied by a person under ORS 151.485 » for the purpose of requesting appointed counsel, and all information supplied to the court from whatever source for the purpose of verifying the financial eligibility of a person pursuant to ORS 151.485.

The Public Defense Services Commission administers an indigent defense program under which defendants in certain types of cases may apply for court-appointed legal counsel. This exemption applies to all information supplied to the commission or to court personnel in order to request counsel or to verify indigency under this program. Because, with some exceptions, this information “shall not be used for any purpose other than determining financial eligibility,”[531] we recommend that a public body seek advice from its legal counsel before disclosing any of this information.

(20)  Workers’ Compensation Claim Records

ORS 192.355(20) exempts:

Workers’ compensation claim records of the Department of Consumer and Business Services, except in accordance with rules adopted by the Director of the Department of Consumer and Business Services, in any of the following circumstances:

(a) When necessary for insurers, self-insured employers and third party claim administrators to process workers’ compensation claims.

(b) When necessary for the director, other governmental agencies of this state or the United States to carry out their duties, functions or powers.

(c) When the disclosure is made in such a manner that the disclosed information cannot be used to identify any worker who is the subject of a claim.

(d) When a worker or the worker’s representative requests review of the worker’s claim record.

This exemption was created to prevent discrimination against persons previously injured on the job who have filed a workers’ compensation claim. Disclosure is permitted under the following circumstances, in accordance with DCBS rules: when necessary to process claims, when necessary for governmental agencies to carry out their functions, when the disclosed information cannot be used to identify any worker who is the subject of a claim, or when a worker or representative requests review of the worker’s claim record.[532] We have interpreted “claim records” to include both substantive information about a worker and a worker’s claim and docketing information about a claim, such as the names of the claimant, the employer, and the insurer.[533]

(21) OHSU Sensitive Business Records

ORS 192.355(21) exempts:

Sensitive business records or financial or commercial information of the Oregon Health and Science University that is not customarily provided to business competitors.

The Oregon Court of Appeals has interpreted this exemption as generally applying to:

[R]ecords or information pertaining to activities of OHSU that are commercial in nature—including medical and scientific research activities if conducted for commercial purposes or in a commercial manner—where the records or information ordinarily would not be provided to either OHSU’s or its business partners’ competitors.[534]

The court understood “sensitive” to mean “‘intended to be treated with a high degree of discretion.’”[535]

Under this interpretation, the court held that the names of particular pharmaceutical companies with which OHSU had contracted to test their experimental drugs were exempt from disclosure, as were the names of the drugs being tested.[536]

(22)  OHSU Candidates for University President

ORS 192.355(22) exempts:

Records of Oregon Health and Science University regarding candidates for the position of president of the university.

 (23)  Library Records

ORS 192.355(23) exempts:

The records of a library, including:

(a) Circulation records, showing use of specific library material by a named person;

(b) The name of a library patron together with the address or telephone number of the patron; and

(c) The electronic mail address of a patron.

(24) Housing and Community Services Department Records

ORS 192.355(24) exempts:

The following records, communications and information obtained by the Housing and Community Services Department in connection with the department’s monitoring or administration of financial assistance or of housing or other developments:

(a) Personal and corporate financial statements and information, including tax returns.

(b) Credit reports.

(c) Project appraisals, excluding appraisals obtained in the course of transactions involving an interest in real estate that is acquired, leased, rented, exchanged, transferred or otherwise disposed of as part of the project, but only after the transactions have closed and are concluded.

(d) Market studies and analyses.

(e) Articles of incorporation, partnership agreements and operating agreements.

(f) Commitment letters.

(g) Project pro forma statements.

(h) Project cost certifications and cost data.

(i) Audits.

(j) Project tenant correspondence.

(k) Personal information about a tenant.

(L) Housing assistance payments.

This provision exempts from disclosure certain records obtained by the Housing and Community Services Department regarding individuals applying for government-subsidized housing or businesses applying for funding to develop affordable, government-subsidized housing and to maintain their ongoing operation of such housing. The purpose of the provision is to protect from public disclosure the detailed personal and business information that applicants and businesses must submit to the state as a condition of participating in the subsidized housing program.

(25)  Forestland Geographic Information System

ORS 192.355(25) exempts:

Raster geographic information system (GIS) digital databases, provided by private forestland owners or their representatives, voluntarily and in confidence to the State Forestry Department, that is not otherwise required by law to be submitted.

The State Forestry Department, working with a variety of interests, has developed a comprehensive database called Geographic Information Systems (GIS), which displays information about forestland conditions. This exemption addresses the concern of private landowners regarding their voluntary disclosure to the department of accurate and detailed information about their land for purposes of the GIS.

(26)  Public Sale or Purchase of Electric Power

ORS 192.355(26) exempts:

Sensitive business, commercial or financial information furnished to or developed by a public body engaged in the business of providing electricity or electricity services, if the information is directly related to a transaction described in ORS 261.348 », or if the information is directly related to a bid, proposal or negotiations for the sale or purchase of electricity or electricity services, and disclosure of the information would cause a competitive disadvantage for the public body or its retail electricity customers. This subsection does not apply to cost-of-service studies used in the development or review of generally applicable rate schedules.

Under federal law, community-owned utilities are able to purchase their energy on a competitive open market basis. This exemption is designed to protect information the disclosure of which would adversely affect the public sale or purchase of electric power by public bodies engaged in providing electricity. The disclosure must create a competitive disadvantage to either the public body or its retail customers for the exemption to apply.

Public bodies should exercise caution before withholding entire documents under this exemption, absent a showing that all the information in the document qualifies as exempt. The Oregon Court of Appeals rejected the argument that an entire contract for the purchase of electricity was exempt, where the evidence was not specific to particular information contained in the contract.[537]

(27)  Klamath Cogeneration Project

ORS 192.355(27) exempts:

Sensitive business, commercial or financial information furnished to or developed by the City of Klamath Falls, acting solely in connection with the ownership and operation of the Klamath Cogeneration Project, if the information is directly related to a transaction described in ORS 225.085 » and disclosure of the information would cause a competitive disadvantage for the Klamath Cogeneration Project. This subsection does not apply to cost-of-service studies used in the development or review of generally applicable rate schedules.

This provision was added to the Public Records Law to address the same concerns that prompted the exemption in ORS 192.355(26), which are discussed above. The City of Klamath Falls has the authority to enter into certain transactions involving the provision of electricity or fuel in relation to the ownership and operation of the Klamath Cogeneration Project.[538] This exemption protects sensitive information pertaining to these transactions when the disclosure would cause a competitive disadvantage for the Project.

(28)  Public Utility Customer Information

ORS 192.355(28) exempts:

Personally identifiable information about customers of a municipal electric utility or a people’s utility district or the names, dates of birth, driver license numbers, telephone numbers, electronic mail addresses or Social Security numbers of customers who receive water, sewer or storm drain services from a public body as defined in ORS 174.109 ». The utility or district may release personally identifiable information about a customer, and a public body providing water, sewer or storm drain services may release the name, date of birth, driver license number, telephone number, electronic mail address or Social Security number of a customer, if the customer consents in writing or electronically, if the disclosure is necessary for the utility, district or other public body to render services to the customer, if the disclosure is required pursuant to a court order or if the disclosure is otherwise required by federal or state law. The utility, district or other public body may charge as appropriate for the costs of providing such information. The utility, district or other public body may make customer records available to third party credit agencies on a regular basis in connection with the establishment and management of customer accounts or in the event such accounts are delinquent.

(29)  Alternative Transportation Addresses

ORS 192.355(29) exempts:

A record of the street and number of an employee’s address submitted to a special district to obtain assistance in promoting an alternative to single occupant motor vehicle transportation.

This exemption encourages employers to turn over lists of employees and their addresses to mass transit districts, transportation districts, and metropolitan service districts so that the districts can contact employees about using alternative transportation. The exemption does not apply to an employee’s city, state, and zip code.

(30)  Oregon Corrections Enterprises

ORS 192.355(30) exempts:

Sensitive business records, capital development plans or financial or commercial information of Oregon Corrections Enterprises that is not customarily provided to business competitors.

Oregon Corrections Enterprises (OCE) is a semi-independent state agency[539] authorized to engage eligible inmates in state corrections institutions in work or on-the-job training.[540] OCE also has the authority to enter into contracts with private persons or governmental agencies to produce, market, and make available prison work products or services.[541]

This exemption allows OCE to withhold some information that its competitors would typically not disclose. The Oregon Court of Appeals has interpreted “sensitive” in a similarly worded exemption to refer to information that is “‘intended to be treated with a high degree of discretion.’”[542]

(31) Confidential Submissions to DCBS

ORS 192.355(31) exempts:

Documents, materials or other information submitted to the Director of the Department of Consumer and Business Services in confidence by a state, federal, foreign or international regulatory or law enforcement agency or by the National Association of Insurance Commissioners, its affiliates or subsidiaries under ORS 86A.095 to 86A.198 », 697.005 to 697.095 », 697.602 to 697.842, 705.137 », 717.200 to 717.320 », 717.900 or 717.905, ORS chapter 59 », 723 », 725 » or 726 », the Bank Act or the Insurance Code when:

(a) The document, material or other information is received upon notice or with an understanding that it is confidential or privileged under the laws of the jurisdiction that is the source of the document, material or other information; and

(b) The director has obligated the Department of Consumer and Business Services not to disclose the document, material or other information.

This exemption enables the Department of Consumer and Business Services to maintain the confidentiality of information received from certain entities under Oregon statutes related to the regulation of a variety of businesses offering consumer services, e.g., credit unions, debt consolidation agencies, and insurance companies.

(32) County Elections Security Plans

ORS 192.355(32) exempts:

A county elections security plan developed and filed under ORS 254.074 ».

This provision exempts from disclosure a security plan filed by a county clerk that addresses election security issues, such as a county’s security procedures for transporting and processing ballots.[543]

(33) Security Programs

ORS 192.355(33) exempts:

Information about review or approval of programs relating to the security of:

(a) Generation, storage or conveyance of:

(A) Electricity;

(B) Gas in liquefied or gaseous form;

(C) Hazardous substances as defined in ORS 453.005(7)(a) », (b) and (d);

(D) Petroleum products;

(E) Sewage; or

(F) Water.

(b) Telecommunication systems, including cellular, wireless or radio systems.

(c) Data transmissions by whatever means provided.

Resulting from a review of Oregon laws after the terrorist attacks of September 11, 2001, this exemption provides for confidentiality of records that contain information about the review or approval of programs that relate to the security of the following: generating, storing, or conveying certain types of materials; telecommunication systems; and data transmissions. Records of the Energy Facility Siting Council concerning review or approval of security programs for nuclear power plants or the transportation of radioactive material are also exempt under a separate provision.[544]

(34)  Personal Information in Paternity or Child Support Judgments or Orders

ORS 192.355(34) exempts:

The information specified in ORS 25.020(8) » if the Chief Justice of the Supreme Court designates the information as confidential by rule under ORS 1.002 ».

This exemption applies to certain contact and other personal information of the parties and children involved in a judicial judgment or order establishing paternity or child support, as long as the Chief Justice designates the information as confidential by rule.

(35)  SAIF Corporation Employer Account Records

ORS 192.355(35) exempts:

(a) Employer account records of the State Accident Insurance Fund Corporation.

(b) As used in this subsection, “employer account records” means all records maintained in any form that are specifically related to the account of any employer insured, previously insured or under consideration to be insured by the State Accident Insurance Fund Corporation and any information obtained or developed by the corporation in connection with providing, offering to provide or declining to provide insurance to a specific employer. “Employer account records” includes, but is not limited to, an employer’s payroll records, premium payment history, payroll classifications, employee names and identification information, experience modification factors, loss experience and dividend payment history.

(c) The exemption provided by this subsection may not serve as the basis for opposition to the discovery documents in litigation pursuant to applicable rules of civil procedure.

(36) SAIF Corporation Claimant Records

ORS 192.355(36) exempts:

(a) Claimant files of the State Accident Insurance Fund Corporation.

(b) As used in this subsection, “claimant files” includes, but is not limited to, all records held by the corporation pertaining to a person who has made a claim, as defined in ORS 656.005 », and all records pertaining to such a claim.

(c) The exemption provided by this subsection may not serve as the basis for opposition to the discovery documents in litigation pursuant to applicable rules of civil procedure.

(37)  Military Discharge Records

ORS 192.355(37) exempts:

Except as authorized by ORS 408.425 », records that certify or verify an individual’s discharge or other separation from military service.

ORS 408.425 explains the conditions under which a county clerk is required to produce military discharge records that are recorded pursuant to ORS 408.420.

(38)  Domestic Violence Service or Resource Center Records

ORS 192.355(38) exempts:

Records of or submitted to a domestic violence service or resource center that relate to the name or personal information of an individual who visits a center for service, including the date of service, the type of service received, referrals or contact information or personal information of a family member of the individual. As used in this subsection, “domestic violence service or resource center” means an entity, the primary purpose of which is to assist persons affected by domestic or sexual violence by providing referrals, resource information or other assistance specifically of benefit to domestic or sexual violence victims.

The purpose of this exemption is to protect victims of domestic violence, and encourage the use of domestic violence services or resource center by such victims, by ensuring confidentiality.

(39) Prescription Drug Monitoring Records

ORS 192.355(39) exempts:

Information reported to the Oregon Health Authority under ORS 431A.860 », except as provided in ORS 431A.860(2)(b) information disclosed by the authority under ORS 431A.865 and any information related to disclosures made by the authority under ORS 431A.865, including information identifying the recipient of the information.

This exemption relates to the prescription drug monitoring program, a state database that tracks prescriptions and is accessible to health care providers for the purpose of evaluating prescription options. Patient information in the database has been confidential since its inception.[545] This exemption, enacted in 2013,[546] also makes information about whether and to what extent individual health care providers use this service exempt from public disclosure.

(40) E-mail Addresses

ORS 192.355(40) exempts:

(a) Electronic mail addresses in the possession or custody of an agency or subdivision of the executive department, as defined in ORS 174.112 », the legislative department, as defined in ORS 174.114, a local government or local service district, as defined in ORS 174.116, or a special government body, as defined in ORS 174.117.

(b) This subsection does not apply to electronic mail addresses assigned by a public body to public employees for use by the employees in the ordinary course of their employment.

(c) This subsection and ORS 244.040 » do not prohibit the campaign office of the current officeholder or current candidates who have filed to run for that elective office from receiving upon request the electronic mail addresses used by the current officeholder’s legislative office for newsletter distribution, except that a campaign office that receives electronic mail addresses under this paragraph may not make a further disclosure of those electronic mail addresses to any other person.

Although on its face this exemption seemingly applies to any e-mail address in a public record, the legislative history strongly suggests that the intent was to enable public bodies to refuse requests for e-mail lists that would then be used to send unsolicited group e-mails or spam. A public body applying the exemption literally to redact e-mail addresses that simply appear within e-mail correspondence would be applying the exemption in a manner not contemplated by the legislature. Our advice to state agencies is to assert this exemption only when it appears that the purpose of the request is to acquire e-mail addresses. Note that this exemption does not apply to the Judicial Department or to a public employee’s work e-mail address.

(41) Personal Information of DPSST Licensees

ORS 192.355(41) exempts:

Residential addresses, residential telephone numbers, personal cellular telephone numbers, personal electronic mail addresses, driver license numbers, emergency contact information, Social Security numbers, dates of birth and other telephone numbers of individuals currently or previously certified or licensed by the Department of Public Safety Standards and Training contained in the records maintained by the department.

DPSST certifies or licenses public safety personnel,[547] such as corrections officers, police officers, and emergency medical dispatchers, as well as private security professionals and providers.[548] This exemption applies only to DPSST records.

(42) Veterans’ Personal Information

ORS 192.355(42) exempts:

Personally identifiable information and contact information of veterans as defined in ORS 408.225 » and of persons serving on active duty or as reserve members with the Armed Forces of the United States, National Guard or other reserve component that was obtained by the Department of Veterans’ Affairs in the course of performing its duties and functions, including but not limited to names, residential and employment addresses, dates of birth, driver license numbers, telephone numbers, electronic mail addresses, Social Security numbers, marital status, dependents, the character of discharge from military service, military rating or rank, that the person is a veteran or has provided military service, information relating to an application for or receipt of federal or state benefits, information relating to the basis for receipt or denial of federal or state benefits and information relating to a home loan or grant application, including but not limited to financial information provided in connection with the application.

This exemption applies only to records of the Department of Veterans’ Affairs.

[1] ORS 192.314(1).

[2] ORS 192.311(3) (defining “person”). A legislative committee also may compel the production of public documents by means of a legislative summons. ORS 171.505-171.530 ».

[3] Letter of Advice to Wanda Clinton, at 8, 1987 WL 278262 (OP-6049) (June 26, 1987) (Department of Revenue could not use Public Records Law to obtain financial data from local governments); Public Records Order, Oct 7, 2002, Snow » (City of Warrenton could not use Public Records Law); Public Records Order, Apr 12, 2007, Giordano », at 5 (Arizona public body could not use Public Records Law).

[4] E.g., State ex rel. Frohnmayer v. Or. State Bar », 91 Or App 690, 692 (1988) (requester’s intent to use records in a Bar disciplinary proceeding was irrelevant), aff’d, 307 Or 304 (1989); Smith v. Sch. Dist. No. 45 », 63 Or App 685, 692 (1983); Turner v. Reed », 22 Or App 177, 180 n 2 (1975).

[5] See MacEwan v. Holm », 226 Or 27, 38–39 (1961) (“[A] person may inspect public records and files for a purely personal purpose.”).

[6] E.g., In Defense of Animals v. OHSU », 199 Or App 160, 176–77 (2005) (public interest did not require disclosure of staff names where requester’s stated purpose of ensuring the proper treatment of animals was not dependent on disclosure).

[7] See ORS 192.324(5) (public body may waive or reduce fees if making the records available primarily benefits the general public).

[8] ORS 192.314(1).

[9] ORS 192.311(4).

[10] ORS 192.311(6). The distinction between state agencies and other public bodies becomes important when determining how to appeal a denial of access to records. Appeals of state agency denials go to the Attorney General, while appeals of denials by other public bodies go to the district attorney of the county where the public body is located. ORS 192.411(1); ORS 192.415(1).

[11] ORS 9.010(3)(e) ».

[12] ORS 656.702(1)(a) ».

[13] ORS 353.100(1) ».

[14] See ORS 192.311(6) (legislators are not considered a “state agency” during the time they are not subject to civil process as provided by Article IV, section 9, of the Oregon Constitution); Letter of Advice to Dave Henderson », at 2, 1998 WL 311989 (OP-1998-3) (June 9, 1998).

[15] ORS 192.311(6) (defining “state agency” to include any court created by the Constitution or statute); ORS 192.311(5)(a) (defining “public record” to include “court records”). However, one court has questioned to what extent court records are subject to inspection. Jury Serv. Res. Ctr. v. Carson », 199 Or App 106, 111 n 2 (2005) (raising possibility that only court records listed in ORS 7.010 are public records), rev’d on other grounds, Jury Serv. Res. Ctr. v. De Muniz », 340 Or 423 (2006).

[16] Marks v. McKenzie High Sch. Fact-Finding Team », 319 Or 451, 463 (1994)  (private fact-finding team tasked by school board to investigate and report on a high school’s operations was not a public body).

[17] Id.

[18] Id. at 463–64. This test may also be used to determine whether an entity is functionally a part of a public body. Laine v. City of Rockaway Beach », 134 Or App 655 (1995) (city had to disclose fire department’s records where Marks factors indicated the fire department was a functional agency or department of the city government).

[19] See Marks », 319 Or at 465–66 (school board did not control or supervise team, team had no ability to make decisions for the board, and team did not receive any funds from the board).

[20] Public Records Order, Nov 19, 2002, Forrester » (board had no authority to make binding decisions on matters of public policy, was privately funded, and operated independently of government control).

[21] Public Records Order, Sept 3, 2002, Long » (lack of governmental control, broadcasting not being a function traditionally associated with state government, and employees’ status as private employees all weighed in favor of private-entity status, despite some state funding and governor’s authority to appoint some board members).

[22] Public Records Order, Mar 29, 2004, Redden » (the society was not created by government, was financed largely by membership fees, private contributions, and sales, and was not subject to governmental oversight).

[23] Public Records Order, July 24, 2008, Rios », at 4 (ODOT contractor was not a public body with respect to its payroll records for subcontractors).

[24] Id.

[25] 46 Op Atty Gen 97, 105, 1988 WL 416263 (1988) (even though the Oregon Trade Marketing Center was not a public body, its records in the custody of the Economic Development Department would be subject to Public Records Law).

[26] Public Records Order, Dec 11, 1992, Smith », at 2–3 (DHS contractor’s reports were public records where the contract made all work product the property of DHS).

[27] ORS 192.311(5)(a). Writings not related to the conduct of the public’s business and contained on a privately owned computer are not public records. ORS 192.311(5)(b).

[28] ORS 192.314(1).

[29] ORS 192.311(7).

[30] ORS 192.324(3).

[31] ORS 192.005(5)(b)(F) (voicemail messages are not public records for the purpose of retention laws).

[32] See OAR 166-030-0045 » (destruction of records shall be suspended if the records are the subject of a records request).

[33] E.g., Public Records Order, Nov 14, 1996, Schwartzrock » (public body not required to create an investigatory report in response to a records request).

[34] Letter of Advice to Jim Kenney, at 4–5, 1987 WL 278343 (OP-6126) (June 1, 1987) (public body was not required to use its computer program to analyze data).

[35] E.g., Public Records Order, Feb 23, 2006, Kane »; Public Records Order, May 26, 2005, Andrade ».

[36] See ORS 192.324(3); Public Records Order, July 1, 2015, Brosseau », at 8–9 (State Medical Examiner was required to produce a custom report containing only certain fields from its database of autopsy reports). However, a public body is generally not required to disclose the underlying coding of the program or software. ORS 192.345(15).

[37] Public Records Order, July 17, 2000, Forgey », at 2–3 (OSP was not required to have contractor reprogram software so that requested information could be exported to an electronic file).

[38] ORS 192.324(3).

[39] ORS 276A.365(1)(a) ». ORS 276A.365 took effect on May 1, 2019.

[40] ORS 276A.365(3)(a).

[41] Public Records Order, Apr 28, 1988, Koberstein », at 2 (letter received by Portland State University from a private entity was a public record because the university used and retained it).

[42] Public Records Order, Dec 11, 1992, Smith », at 2–3; see AA Ambulance Co. v. Multnomah County », 102 Or App 398, 401–02 (1990) (county must disclose public records in possession of out-of-state consultant). But see Public Records Order, Mar 23, 2005, Har », at 3–4 (ODOT’s contractual right to access records maintained by contractor was not sufficient by itself to qualify records as “public records”).

[43] Public Records Order, June 28, 2001, Zaitz », at 2–4 (correspondence between precursor of the Government Ethics Commission and a public official under investigation was not a public record in the official’s possession because official’s potential liability was personal in nature).

[44] ORS 192.324(1).

[45] Id.

[46] ORS 192.324(7). Public bodies typically comply with this requirement by posting the procedure to their website or adopting rules. See Appendix B-3 for a sample procedure.

[47] ORS 192.324(7).

[48] See ORS 192.324(2), 192.329(1). These deadlines are discussed in detail below.

[49] Oregon courts do on occasion look to federal FOIA  cases to help interpret comparable provisions of the Oregon Public Records Law. See, e.g.,Jensen v. Schiffman », 24 Or App 11, 14–16 (1976) (interpreting Oregon’s exemption for criminal investigatory information in light of federal court interpretations of the similar FOIA exemption).

[50] ORS 192.314(2). The attorney for a state agency is the Attorney General; however, requesters are encouraged to send the request to the assistant attorney general directly involved in the matter.

[51] Oregon State Bar Formal Opinion No. 2005-144 » (revised 2007).

[52] See Oregonians for Sound Economic Policy v. SAIF », 187 Or App 621, 628–32 (2003) (discussing subsequently amended statute providing that SAIF’s records “shall be open to public inspection”).

[53] ORS 146.035(5)(a) ».

[54] ORS 192.324(1).

[55] ORS 192.311(2)(b).

[56] Id. Public Records Order, Dec 17, 1999, Sheketoff » (Employment Department was not the custodian of reports it generated for other agencies, where the other agencies controlled the reports’ contents).

[57] Cf. ORS 192.355(10) (records that are exempt from disclosure in the originating body’s custody can under certain circumstances remain exempt when transferred to another public body).

[58] ORS 192.324(2). “Business day” carries its ordinary meaning but applies only to days on which at least one paid employee of the public body is scheduled to and does report to work. ORS 192.311(1). For community college districts (and service districts), public universities, school districts, and education service districts, any day on which the central administration offices are closed does not count as a business day. Id.

[59] ORS 192.324(2).

[60] ORS 192.329(6).

[61] ORS 192.329(8).

[62] ORS 419A.262(21) ».

[63] ORS 192.329(2)(e).

[64] ORS 192.329(1).

[65] See ORS 192.329(5) (providing deadline of ten business days after the date the public body is required to acknowledge receipt of the records request).

[66] See ORS 192.407(1)(c).

[67] ORS 192.329(5). The estimated date should be based on the information available to the public body at the time it provides this estimate. Id.  

[68] ORS 192.329(2).

[69] Certain state and federal statutes that restrict access to records are incorporated as public records exemptions by ORS 192.355(8) (federal laws) and ORS 192.355(9) (state laws). Merely citing to just these two catch-all provisions is not sufficient to complete the response to a records request.

[70] Public bodies typically comply with this requirement by redacting the exempt material (using either black marker or computer software).

[71] Broadly speaking, these statutes permit a requester to appeal a denial by a state agency to the Attorney General, appeal a denial by any other public body to the district attorney in the appropriate county, and appeal a denial by an elected official by filing a lawsuit in the appropriate circuit court. They also permit a requester whose appeal is denied by the Attorney General or district attorney to file suit against the public body in circuit court.

[72] ORS 192.329(3)(a).

[73] ORS 192.329(4)(a). The deadline is suspended only if the public body requested clarification in order to expedite its response to the request. Id.

[74] ORS 192.329(3)(b), (4)(b). The practical significance of this 60-day waiting period is likely that a public body should retain any work product done in fulfilling the request until the request is closed. For example, if the public body needs to run an e-mail search to gather responsive records so that a fee estimate can be provided, it should retain the results of that search until the request is closed.

[75] ORS 192.329(6).

[76] ORS 192.407(1)(a).

[77] See Public Records Order, Jan 14, 2014, Budnick », at 3–4.

[78] ORS 192.407(1).

[79] ORS 192.407(1)(b).

[80] Morse Bros., Inc. v. ODED », 103 Or App 619 (1990).

[81] ORS 192.407(3).

[82] ORS 192.324(1).

[83] ORS 192.318(1).

[84] Id.

[85] Id.

[86] 42 USC § 12131–12132 »; 28 CFR § 35.160 ».

[87] 28 CFR § 35.104 ».

[88] 28 CFR §§ 35.135 », 35.160 ».

[89] 28 CFR § 35.164 »; Nelson v. Thornburgh », 567 F Supp 369 (ED Pa 1983), aff’d, 732 F2d 146 (3rd Cir 1984).

[90] ORS 192.324(1)(a). A public body is not required to furnish a certified copy of the record. However, certification can be offered as a courtesy to requesters. Certification is not difficult and may be included as a statement on the cover sheet or last sheet of the copy. See Appendix B-7 for a sample. Certified copies of electronic records are more readily susceptible to being subsequently modified than are hard copies of records. In certifying an electronic record, the public body may state that the copy provided in electronic form on a specified date is a true and correct copy of the original, but that the public body cannot ensure that the electronic record will not be modified after release.

[91] 39 Op Atty Gen 721, 721–25, 1979 WL 35665 (1979).

[92] ORS 247.973(1)–(2) ». However, election officials acting in their official capacity for purposes of administering the election laws and rules are permitted to make a copy of these signatures. ORS 247.973(3).

[93] See Appendix A-1 for more information on copyright law.

[94] ORS 192.324(3); see 49 Op Atty Gen 210 », 227–28, 2000 WL 101166 (2000) (if electronic document were requested in paper form, the public body should print a paper copy if possible).

[95] ORS 192.318(2).

[96] ORS 183.310(9), 183.335, 183.355 ».

[97] Public Records Order, May 10, 1996, Kelley » (DMV was not required to allow direct access to records via modem as that would allow requester to modify or delete records and to view exempt information).

[98] Davis v. Walker », 108 Or App 128, 133 (1991).

[99] ORS 192.324(4)(a).

[100] Id.

[101] See DAS Statewide Policy 107-001-030 (Feb 15, 2017), available at http://www.oregon.gov/das/Policies/107-001-030.pdf ». An FAQ is available at https://www.oregon.gov/das/Docs/07-SSFS_PolicyQA.pdf ». Exempt from the policy are the Secretary of State; State Treasurer; State Lottery; public universities; and the Attorney General with respect to DOJ information systems security. The legislature and courts are also exempt as they are not part of the executive branch.

[102] ORS 192.324(4)(c).

[103] E.g., Public Records Order, June 30, 2005, Mills » (no denial of records request where public body required prepayment of fees).

[104] 39 Op Atty Gen at 725–26 (home rule counties could not charge a fee that exceeded the actual cost). In order to avoid the possibility of an overpayment, some public bodies require an initial prepayment of only 50% of the fee estimate before beginning any work; the public body then charges the remaining amount once it has completed the request (but before producing the records) and knows the exact cost.

[105] ORS 192.324(4)(b). This means that any factual or legal research done by the attorney to determine whether material is exempt is not chargeable to the requester.

[106] 39 Op Atty Gen 61, 68, 1978 WL 29400 (1978).

[107] 42 USC §§ 12131 et seq ».

[108] ORS 192.324(7)(b).

[109] ORS 183.310(9), 183.335, 183.355 ».

[110] See Davis », 108 Or App at 131–33 & n 5 (fees charged by city police bureau were not reasonably calculated to reimburse bureau for its actual costs where bureau offered no specific support for its charges for staff time).

[111] In Defense of Animals v. OHSU », 199 Or App 160, 182–83 (2005) (fees were not reasonable where OHSU could not justify why professional staff were needed to redact basic information such as company names).

[112] E.g., Public Records Order, Mar 23, 2009, Kellington », at 4.

[113] E.g., Public Records Order, Oct 18, 2016, Harden », at 2–3.

[114] ORS 192.324(5).

[115] In Defense of Animals », 199 Or App at 188–90.

[116] ORS 192.324(6).

[117] Public Records Order, Mar 13, 2008, Harbaugh », at 2.

[118] 39 Op Atty Gen at 62–65 (Motor Vehicles Division could not expend constitutionally dedicated highway funds in order to grant fee waiver or reduction). But see Public Records Order, Sept 12, 2016, Friedman » (PERS was not prohibited from using statutorily dedicated funds to waive or reduce fees).

[119] In Defense of Animals », 199 Or App at 189. Because this analysis is consistent with how federal courts construed the former federal statute that was the model for ORS 192.324(5), those federal cases provide useful guidance as to how Oregon courts may apply the state standard.

[120] Id. at 188; Public Records Order, Dec 5, 2016, DeMartino » (no public interest in fee waiver where requester sought records related to a court case he was a party to).

[121] See Conklin v. United States », 654 F Supp 1104, 1106 (D Colo 1987).

[122] Badhwar v. U.S. Dep’t of Air Force », 615 F Supp 698, 706–08 (DDC 1985).

[123] Diamond v. FBI, 548 F Supp 1158 (SDNY 1982).

[124] See Judicial Watch, Inc. v. Rossotti », 326 F3d 1309 (DC Cir 2003) (contrasting sufficient and insufficient demonstrations of ability to disseminate information to public).

[125] In Defense of Animals », 199 Or App at 189.

[126] Id. at 190.

[127] Public Records Order, Sept 10, 2009, Rogers », at 3.

[128] Public Records Order, Apr 24, 2009, Harbaugh », at 3. But note that DAS Statewide Policy 107-001-030 provides that most state agencies in the executive department should not consider previous records requests when deciding whether to waive or reduce fees.

[129] Public Records Order, May 26, 2016, Brosseau ».

[130] Public Records Order, Sept 5, 2017, Woodworth ».

[131] Public Records Order, May 17, 2010, Dimitre, at 4–5.

[132] Public Records Order, Oct 18, 2016, Harden, at 3.

[133] Public Records Order, July 8, 2016, Davis, at 4–5.

[134] Public Records Order, May 9, 1989, Hribernick ».

[135] ORS 192.015.

[136] ORS 192.105(1). The Archivist’s rules on retention and destruction are found at chapter 166 of the Oregon Administrative Rules.

[137] ORS 192.005(6) (the Legislative Assembly and the Judicial Department are not state agencies for purposes of ORS 192.001 to 192.170); ORS 192.105(4) (section granting Archivist rulemaking authority on retention and destruction does not apply to legislative records).

[138] ORS 8.125 », ORS 7.010 », ORS 7.120.

[139] ORS 171.427, ORS 171.430.

[140] ORS 192.108. The Archivist provides access to these rules at http://sos.oregon.gov/archives/Pages/records_retention_schedule.aspx ».

[141] Special schedules are more common for state agencies than for local governments; the Archivist provides access to many state agencies’ special schedules at http://sos.oregon.gov/archives/Pages/state_admin_schedules.aspx ».

[142] ORS 192.005(5). The Archivist’s general and special retention schedules are based on these four factors. We caution that a public body should not base its retention decisions on whether the records would be inconvenient to disclose in response to a records request: that consideration is absent from the four retention factors.

[143] Records that are scheduled for destruction must be preserved if a request for those records is received, until the request is fulfilled. OAR 166-030-0045 ».

[144] ORS 162.305 ».

[145] The website is located at http://www.oregon.gov/transparency/pages/index.aspx ».

[146] ORS 276A.253(4)(a) ».

[147] E.g., Guard Publ’g Co. v. Lane County Sch. Dist. No. 4J », 310 Or 32, 37 (1990) (“Under the statutory scheme, disclosure is the rule.”).

[148] ORS 192.314(1).

[149] E.g., Guard Publ’g Co. », 310 Or at 37. The rule to narrowly construe exemptions means that “if there is a plausible construction of a statue favoring disclosure of records, that is the construction that prevails.” Colby v. Gunson », 224 Or App 666, 676 (2008).

[150] ORS 192.411(1); ORS 192.431(1); Guard Publ’g Co. », 310 Or at 38 (“[T]he burden of proof is on the public body to sustain its action by a preponderance of the evidence.”).

[151] E.g., Guard Publ’g Co. », 310 Or at 37–38 & n 6 (“If the public body is satisfied that a claimed exemption from disclosure is justified, it may, but is not required to, withhold disclosure of the information.”).

[152] ORS 192.335(1).

[153] For example, DHS “may not” disclose records compiled in the course of investigating a report of child abuse, but must make those records available to certain entities, such as a law enforcement agency investigating a subsequent case of child abuse, or the Office of Child Care for regulating child care facilities. ORS 419B.035(1) ».

[154] Of course some prohibitions on disclosure expressly provide for public disclosure in certain circumstances. For example, a police department may not disclose its personnel investigation of a police officer if no discipline results, but must disclose that investigation if the public interest requires disclosure or if the department determines that nondisclosure would adversely affect the public’s confidence in the department. ORS 181A.830(3)–(4) ».

[155] ORS 192.329(2)(b). A public body does not need to acknowledge that responsive records exist if it is prohibited by state or federal law, or if the loss of federal benefits or imposition of some other sanction would result. ORS 192.329(2)(e). However, the public body must cite that state or federal law, unless prohibited. Id.

[156] ORS 192.431(3).

[157] ACLU of Or., Inc. v. City of Eugene », 360 Or 269, 280 (2016).

[158] For example, certain candid, internal discussions are exempt only if “the public interest in encouraging frank communication * * * clearly outweighs the public interest in disclosure,” ORS 192.355(1), while certain confidential information is exempt only if “the public interest would suffer by the disclosure,” ORS 192.355(4).

[159] See Guard Publ’g Co. », 310 Or at 35 n 1 (requester’s purpose in obtaining records was irrelevant to whether the records were exempt); Morrison v. Sch. Dist. No. 48 », 53 Or App 148, 153 (1981) (initial determination whether information was of a “personal nature” did not depend upon who requested the information or circumstances existing at time of request).

[160] In Defense of Animals v. OHSU », 199 Or App 160, 176, 178 (2005); see Jordan v. MVD », 308 Or 433, 443 (1989) (no public interest in disclosing individual’s address from motor vehicle records where there was no link between disclosure and the governmental use of those records).

[161] In Defense of Animals », 199 Or App at 175–76 (internal citations and quotation marks omitted).

[162] ACLU », 360 Or at 290.

[163] Id. at 285–87.

[164] Id. at 290.

[165] City of Portland v. Anderson », 163 Or App 550, 554 (1999) (public had legitimate interest in confirming high ranking police officer’s “integrity and * * * ability to enforce the law evenhandedly”); Oregonian Publ’g Co. v. Portland Sch. Dist. No. 1J », 144 Or App 180, 187 (1996) (“[A]lleged misuse and theft of public property by public employees * * * is a matter of legitimate public interest.”), adh’d to as modified on recons, 152 Or App 135 (1998).

[166] City of Portland v. Oregonian Publ’g Co. », 200 Or App 120, 127 (2005) (stronger public interest in disclosure in a “high profile” police case).

[167] In Defense of Animals », 199 Or App at 177–79 (significant public interest in protecting names of staff where there was general concern about harassment by animal rights groups); Hood Tech. Corp. v. Or.-OSHA », 168 Or App 293, 305–06 (2000) (revealing identity of confidential complainant might deter others from reporting workplace safety violations).

[168] In Defense of Animals », 199 Or App at 178–79 (ensuring the proper treatment of animals was not dependent on receiving the names of public employees engaged in animal testing); see Jordan », 308 Or at 443 (no overriding public interest in disclosure where request for individual’s contact information did not implicate any of the statutory purposes for which this information was collected).

[169] Oregonian Publ’g », 144 Or App at 187 (previous publicity about public employees’ alleged misuse and theft of public property meant that it wasn’t clear disclosure would intrude into the employees’ privacy).

[170] Public Records Order, July 3, 1995, Garrettson », at 6–7 (union’s interest in obtaining disciplinary records to better represent union members did not qualify as a public interest); Public Records Order, June 8, 1990, Madrid » (tort claimant’s interest in information related to notice of tort claim was not sufficient to require disclosure).

[171] See Coos County v. Or. Dep’t of Fish & Wildlife », 86 Or App 168, 173 (1987) (potential embarrassment to the agency was not sufficient, in and of itself, to justify withholding records); Turner v. Reed », 22 Or App 177, 193 (1975) (records were not exempt where “the only interest in confidentiality [wa]s to protect public officials from criticism of the manner in which they have discharged their duties”).

[172] ACLU », 360 Or at 297 (analyzing ORS 181A.830(3) and (4), which exempt “information about a personnel investigation of a public safety employee * * * if the investigation does not result in discipline[, unless] the public interest requires disclosure.”).  

[173] Id. at 298–99.

[174] ORS 192.338; Gray v. Salem-Keizer Sch. Dist. », 139 Or App 556, 566 (1996) (“[D]ocument disclosure is not an ‘all-or-nothing’ proposition * * * .”). Public bodies typically comply with this requirement by redacting the exempt information, using either a black marker or computer software.

[175] Turner, 22 Or App at 186 n 8. While Turner dealt with a precursor to the current ORS 192.338, the statutes are essentially identical, and subsequent courts have favorably cited Turner. E.g., Brown v. Guard Publ’g Co. », 267 Or App 552, 567 & n 4 (2014).

[176] E.g., Public Records Order, Nov 17, 2014, Budnick », at 3–4 (ordering disclosure of portions of complaint that did not reveal the identities of the complainant or of the licensees complained about).

[177] Oregonian Publ’g Co. v. Portland Sch. Dist. No. 1J », 152 Or App 135, 142 (1998), aff’d on other grounds, 329 Or 393 » (1999); see also Springfield Sch. Dist. #19 v. Guard Publ’g Co. », 156 Or App 176, 182–83 (1998) (school district’s disclosure of “charging letter” detailing circumstances of district’s investigations and findings of misconduct against employee waived exemptions to disclosure of investigative report).

[178] Letter of Advice to W.T. Lemman, at 4–5, 1988 WL 416244 (OP-6217) (Mar 29, 1988).

[179] Id.

[180] ORS 192.335(2). Because this provision only took effect on January 1, 2018, we recommend that public bodies consult with legal counsel before disclosing records covered by one of these privileges.

[181] Oregonian Publ’g », 152 Or App at 142.

[182] ORS 192.390.

[183] Public Records Order, Feb 7, 1994, Smith », at 6.

[184] ORS 192.398.

[185] This exception appears to be a subset of the exemption that applies to information of a personal nature where disclosure would constitute an unreasonable invasion of privacy, ORS 192.355(2). Therefore our later discussion of that exemption informs the analysis of this exception.

[186] This exception appears to be a subset of the exemption that applies to certain Department of Corrections or Parole Board records, ORS 192.355(5). Therefore our later discussion of that exemption informs the analysis of this exception.

[187] Or Laws 1979, ch 301.

[188] See Oregonian Publ’g Co. v. Portland Sch. Dist. No. 1J », 152 Or App 135, 138 (1998) (turning to FOIA cases to analyze waiver of exemptions); Marks v. McKenzie High Sch. Fact-Finding Team », 319 Or 451, 458–63 (1994) (looking to opinions of federal and state courts in determining whether a private entity could be subject to Public Records Law); Jensen v. Schiffman », 24 Or App 11, 14–16 (1976) (analyzing exemption for criminal investigatory information by looking to federal case law on similar FOIA exemption).

[189] ORS 192.340(1). To help ensure the continued accuracy of this catalog, the Legislative Counsel provides the Attorney General with a copy of any newly passed legislation that creates an exemption, and district attorneys send the Attorney General newly issued public records orders. ORS 192.340(3).

[190] Note that the catalog does not include any federal prohibitions on the disclosure of records.

[191] Information on the task force is available at https://www.doj.state.or.us/oregon-department-of-justice/public-records/public-records-task-force/.

[192] ORS 192.511(3).

[193] ORS 192.499(4).

[194] ORS 192.324(6).

[195] ORS 192.407(2).

[196] ORS 192.411(1).

[197] ORS 192.415(1)(a).

[198] See ORS 192.427 (referring to process in ORS 129.411).

[199] See ORS 192.427 (referring to process in ORS 192.415).

[200] ORS 192.411(2). As discussed below, Marion County may not be the appropriate court for certain records of the health professional regulatory boards or of the Health Licensing Office.

[201] ORS 192.415(1)(b).

[202] ORS 192.464(1).

[203] Id.

[204] Morse Bros, Inc. v. ODED », 103 Or App 619, 622 (1990) (trial court should have dismissed public records suit where plaintiff filed suit before giving the Attorney General the opportunity to rule on the petition).

[205] ORS 192.411(1).

[206] See Public Records Order, May 10, 1982, Kane » (petition must describe record sought clearly enough to allow record to be identified).

[207] ORS 192.422(2).

[208] Id.

[209] Id.

[210] ORS 192.411(1).

[211] Public Records Order, Mar 4, 2008, Walth », at 3.

[212] See Brown v. Guard Publ’g Co. », 267 Or App 552, 570 (2014) (“‘Trust us, it’s exempt’ * * * is not how Oregon’s public records law * * * is intended to operate.”).

[213] ACLU of Or., Inc. v. City of Eugene », 360 Or 269, 294 (2016) (“[T]o establish an interest in disclosure or confidentiality a party may rely solely on legal arguments.”).

[214] Id. at 285 (quoting Jordan », 308 Or at 438; internal quotation marks omitted).

[215] Cf. id. at 286–87 (“A party is entitled to adduce facts to establish an interest in disclosure or confidentiality, or, if a party wishes to claim that the interest propounded is of greater or lesser import given the particular circumstances that the case presents, the party again may rely on legal arguments or evidence that it proffers.”).

[216] ORS 192.411(1).

[217] ORS 192.418(1). Orders are usually issued within the statutory time period; however, if the petition presents complex issues of law or fact, the requester may be asked to grant an extension. Cf. Davis v. Walker », 108 Or App 128, 130 (1991) (noting that requester and public body had agreed that review of the petition would be suspended).

[218] The health professional regulatory boards are the Board of Examiners for Speech-Language Pathology and Audiology; Board of Chiropractic Examiners; Board of Licensed Social Workers; Board of Licensed Professional Counselors and Therapists; Board of Dentistry; Board of Massage Therapists; Mortuary and Cemetery Board; Board of Naturopathic Medicine; Board of Nursing; Board of Optometry; Board of Pharmacy; Medical Board; Occupational Therapy Licensing Board; Physical Therapist Licensing Board; Board of Psychology; Board of Medical Imaging; Veterinary Medical Examining Board; and the Oregon Health Authority with respect to its role in licensing emergency medical services providers. ORS 676.160 ».

[219] As relevant here, the Health Licensing Office provides oversight and services to the Board of Athletic Trainers; Board of Denture Technology; Board of Direct Entry Midwifery; Respiratory Therapist and Polysomnographic Technologist Licensing Board; Environmental Health Registration Board; Sex Offender Treatment Board; Nursing Home Administrators Board; Board of Licensed Dietitians; and the Behavior Analysis Regulatory Board. See ORS 192.401(1)(b) (referring to professions listed in ORS 676.595 »).

[220] ORS 192.401(1). We use “licensee or applicant” for brevity’s sake. The provision covering HLO records technically refers to the holder of an authorization to practice a profession, or an applicant for that authorization.

[221] Id.

[222] ORS 192.401(2). These exemptions generally relate to investigations of licensee or applicant conduct, and the relevant confidentiality interests are typically protecting the privacy of the complainant, licensee, and witnesses, and encouraging complainants and witnesses to cooperate. E.g., Public Records Order, Nov 17, 2014, Budnick », at 3.

[223] ORS 192.401(1).

[224] Id.

[225] Id. This provision explicitly extends the deadline only when the asserted exemption is ORS 676.165, 676.175, or 676.595 »; however, we think the legislative intent is to extend the deadline whenever the record contains information about a licensee or applicant, as failing to extend the Attorney General’s deadline would conflict with the seven-day deadline for a licensee or applicant to submit a response to the Attorney General.

[226] ORS 192.401(2).

[227] ORS 192.401(2).

[228] ORS 192.401(3).

[229] Id.

[230] However, the Attorney General may act for a district attorney at the latter’s request, and therefore consider such petitions. E.g., Public Records Order, Nov 29, 2016, Coughlin ».

[231] Public Records Order, Dec 14, 1992, Walker » (Baker City Police Department).

[232] Public Records Order, Apr 2, 2001, Lucey » (Multnomah County).

[233] Public Records Order, June 10, 1993, Dellelo » (Eugene School District 4-J).

[234] Public Records Order, Feb 28, 1996, Ackerman » (Shangri La Water District).

[235] See ORS 353.100(1) » (OHSU is not a state agency for purposes of ORS 192, which contains the Public Records Law).

[236] See ORS 352.138(2) » (public universities listed in ORS 352.002 are not state agencies for purposes of ORS 192, which contains the Public Records Law).

[237] ORS 192.415(1)(a). If the local body is located in more than one county, then the appropriate county is where the body’s administrative offices are located. Id.

[238] ORS 192.427.

[239] Id.; see, e.g., Public Records Order, Feb 1, 1989, Larson » (review not allowed where circuit court judge denied the records request, regardless of whether judge was the record’s custodian).

[240] ORS 192.427.

[241] Public Records Order, Nov 22, 1995, Larson » (review not allowed where appointed circuit court judge claimed the right to withhold).

[242] ORS 192.427. Even if the elected official has not denied the request, the court will have jurisdiction after seven days from the date the elected official receives the records request. ORS 192.418(2). However, this does not mean that an elected official has improperly withheld records by not fulfilling a records request within seven days. Cf.Morse Bros., Inc. v. ODED », 103 Or App 619, 622 (1990) (“The Public Records Law clearly contemplates that agencies have the opportunity to review the requested records and to act on the request before * * * the courts can review the matter.”).

[243] See ORS 192.427 (referring to procedure in ORS 192.411).

[244] See id. (referring to procedure in ORS 192.415).

[245] Id.

[246] As discussed above, in certain cases a health professional regulatory board or the Health Licensing Office must wait until the seventh day following an order to produce the records, in order to give the affected licensee or applicant time to issue notice of intent to file suit. ORS 192.401(2).

[247] ORS 192.411(2).

[248] Id.

[249] ORS 192.411(3). In such cases, the public body may retain special counsel, id., and can still be advised by its regular legal counsel on the process for retaining such special counsel.

[250] ORS 192.411(2).

[251] ORS 192.431(3). The seven-day deadlines are unambiguous and strictly applied. Gray v. Salem-Keizer Sch. Dist. », 139 Or App 556, 567–68 (1996) (requester was entitled to attorney fees where public body disclosed records 11 days after the order, regardless of public body’s good faith and reasonableness); see Davis v. Walker », 108 Or App 128, 130–31, 133–134 (1991) (requester was entitled to attorney fees where public body waited six months for a Supreme Court decision in a separate case before disclosing the records).

[252] ORS 192.411(2).

[253] ORS 192.411(3).

[254] ORS 192.415(1)(c).

[255] ORS 192.411(2).

[256] ORS 192.411(3).

[257] ORS 192.415(1).

[258] ORS 192.411(2). The exception is for certain records of health professional regulatory boards or the Health Licensing Office; proceedings regarding those records should be instituted in the county where the records are held. ORS 192.401(3).

[259] ORS 192.415(1)(b).

[260] See ORS 192.427 (referring to the procedures in ORS 192.411 and 192.415).

[261] ORS 192.431(1).

[262] Id. The exception is for certain records of health professional regulatory boards or the Health Licensing Office, where the requester has the burden of demonstrating by clear and convincing evidence that the public interest in disclosure outweighs the interests in nondisclosure. ORS 192.401(3).

[263] In Defense of Animals v. OHSU », 199 Or App 160, 169–70 (2005) (OHSU did not waive its right to assert exemptions in court action by not asserting them to the district attorney).

[264] ORS 192.431(3).

[265] Id.

[266] Id.; see Gray v. Salem-Keizer Sch. Dist. », 139 Or App 556, 567–68 (1996) (requester should have been awarded fees where records were not produced until 11 days after district attorney’s order).

[267] Clapper v. Or. State Police », 228 Or App 172, 178 (2009).

[268] Kotulski v. Mt. Hood Comm. College », 62 Or App 452, 458 (1983) (affirming award of fees to requester, despite college’s offer to allow inspection of records, where requester had also sought a declaration that the records were subject to public disclosure).

[269] ORS 192.464(1)–(3). The Oregon Judicial Department is not subject to this dispute resolution process. ORS 192.478.

[270] When a city’s records are at issue, the city, requester, and Advocate must all consent to the dispute resolution process. ORS 192.464(6).

[271] ORS 192.464(1)–(3). The ability of the Advocate to resolve disputes over the reasonableness of fee estimates is significant as the authority of the Attorney General or district attorney to review those disputes is limited.

[272] ORS 192.464(7). The dispute resolution period may be extended if the requester, public body, and Advocate all agree. Id.

[273] ORS 192.464(4). A requester’s failure to engage in good faith may be grounds for the state agency to deny the records request, while a state agency’s failure to engage in good faith may be grounds for the award of costs and attorney fees to the requester for further pursuit of the records. Id. A city and requester of a city’s records are not subject to these penalties. ORS 192.464(6).

[274] ORS 192.464(3)(b).

[275] ORS 192.464(8).

[276] ORS 192.475(1)–(2).

[277] ORS 192.475(3).

[278] Lane County Sch. Dist. v. Parks », 55 Or App 416, 420 (1981) (records were not exempt even though they might reveal a cause of action against the school district and would materially assist the plaintiff in such an action).

[279] Id. at 420 (favorably citing a California decision that examined a similarly worded exemption). The privilege applies to “confidential communications made for the purpose of facilitating the rendition of professional legal services to the client,” as long as the communications are between certain parties. ORS 40.225(2) ». And the work product protection applies, with some limitations, to “documents * * * prepared in anticipation of litigation or for trial.” ORCP 36 B(3) ».

[280] Public Records Order, Jan 12, 1990, Bischoff », at 3; Public Records Order, June 8, 1990, Madrid »; Public Records Order, Oct 1, 2003, Franzen ».

[281] Public Records Order, June 8, 1990, Madrid »; Public Records Order, Aug 16, 2004, Bobbitt ».

[282] Public Records Order, Jan 12, 1990, Bischoff », at 3.

[283] A tort generally includes most litigation involving an injury to a specific person or persons that is not contractual in nature. ORS 30.260(8) ».

[284] ORS 17.095 ». This prohibition applies to actions under ORS 30.260 » to 30.300, and ORS 294.100 » (unlawful expenditure of funds).

[285] Guard Publ’g Co. v. Lane County Sch. Dist. No. 4J », 310 Or 32, 39 (1990).

[286] ORS 192.314(2).

[287] Id.

[288] The UTSA  allows injunctive relief and damages for the misappropriation of a trade secret. ORS 646.463, 646.465 ». “Trade secret” is defined as “information * * * that * * * [d]erives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and [i]s the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” ORS 646.461(4) ».

[289] E.g., Kaib’s Roving R.PH. Agency, Inc. v. Smith », 237 Or App 96, 103 (2010) (“[T]he question of whether certain information constitutes a trade secret ordinarily is best resolved by a fact finder after full presentation of evidence from each side.” (Internal quotation marks omitted.)).

[290] See Brown v. Guard Publ’g Co. », 267 Or App 552, 570 (2014) (“‘Trust us, it’s exempt’ * * * is not how Oregon’s public records law * * * is intended to operate.”).

[291] Cf. Public Records Order, Mar 11, 2013, Meiffren », at 5 (information did not qualify as trade secret where submitters did not “take the simple step” of checking a box requesting confidentiality).

[292] See Kaib’s Roving », 237 Or App at 102–03 (analyzing claim under the UTSA). An entity seeking to avoid disclosure under the UTSA must “demonstrate[e] that disclosure will work a clearly defined and serious injury[, as opposed to making b]road allegations of harm unsubstantiated by specific examples or articulated reasoning.” Pfizer Inc. v. Or. Dep’t of Justice », 254 Or App 144, 162 (2012) (internal quotation marks omitted).

[293] Public Records Order, Dec 7, 1989, Baldwin »; see also Public Records Order, Mar 4, 2004, Zaitz », at 6–7 (pro formas related to sale of surplus state property).

[294] Public Records Order, Sept 4, 1998, Spatz », at 6–7.

[295] Public Records Order, Aug 8, 2007, Kirsch ».

[296] Public Records Order, Apr 26, 2010, Bachman », at 2. Prior to this order, we had suggested that the UTSA was an unconditional exemption; we no longer believe that prior analysis is correct.

[297] ORS 646.473(3) ».

[298] Id.

[299] Or Laws 1987, ch 537 (enacting the UTSA).

[300] Public Records Order, Mar 11, 2013, Meiffren », at 5–6.

[301] Id. at 6.

[302] A public body is immunized from any claim or action for misappropriation of a trade secret where the public body in good faith relied on an order of disclosure from the Attorney General or appropriate district attorney, or on its attorney’s advice. ORS 646.473(3) ».

[303] Jensen v. Schiffman », 24 Or App 11, 16 (1976).

[304] Id.

[305] This exception for arrest records does not apply to juvenile  records, as the juvenile code refers to “custody” rather than “arrests,” ORS 419C.091(1) ».

[306] E.g., Public Records Order, Dec 23, 1991, Mayes », at 2–3 (Treasury records under review by DOJ’s Criminal Justice Division); Public Records Order, Oct 10, 1996, Reed » (OLCC records compiled by police and district attorney). These orders relied on the reasoning of the United States Supreme Court in interpreting a similar exemption in the federal Freedom of Information Act.John Doe Agency v. John Doe Corp. », 493 US 146 (1989).

[307] Public Records Order, Jan 12, 2001, Varenhorst », at 3–4 (hypothetical scenarios used to evaluate job applicants); Public Records Order, Feb 28, 2002, Perry (math and reading assessment tests for K-12 students).

[308] See Public Records Order, Nov 19, 1999, Birhanzl », at 2–3 (individual answer sheets were not exempt where disclosure would not compromise the exam’s integrity); Public Records Order, Jan 24, 1989, Parsons » (individual’s oral exam answers were not exempt absent evidence that disclosure would indirectly reveal the questions).

[309] Public Records Order, May 2, 1997, Bledsoe », at 6–7 (materials used to score and evaluate applicants for tax credits were exempt).

[310] ORS 192.660(2)(e).

[311] Public Records Order, Dec 2, 1994, Parks ».

[312] Letter of Advice to Wendy Greenwald, at 7 n 1, 1987 WL 278312 (OP-6087) (Feb 26, 1987); Public Records Order, Mar 6, 1981, Bishoff ».

[313] Pace Consultants, Inc. v. Roberts », 297 Or 590, 595 (1984) (the names and addresses of employers against whom unlawful practices complaints were pending were not exempt if contained in a complaint or on a ledger card).

[314] See id. (exemption using the same wording as ORS 192.345(9) did not apply to complaints).

[315] ORS 697.732(4)(a) ».

[316] ORS 358.905(1)(a) ».

[317] ORS 358.905(1)(a)(C).

[318] ORS 358.905(1)(c)(A).

[319] ORS 358.905(1)(c)(B).

[320] City of Portland v. Rice », 308 Or 118, 123–24 (1989); City of Portland v. Anderson », 163 Or App 550, 553–54 (1999) (only the records relating to allegations for which discipline was imposed were conditionally exempt).

[321] Public Records Order, June 26, 1998, Scheminske », at 3 (records not exempt where employee resigned before completion of the investigation and before any disciplinary action was imposed).

[322] Public Records Order, May 9, 2011, Deutsch ».

[323] Rice », 308 Or at 124 n 5.

[324] Oregonian Publ’g Co. v. Portland Sch. Dist. No. 1J », 144 Or App 180, 187 (1996) (publicity about the employees’ alleged misconduct indicated that it was not clear that disclosure would intrude into the employees’ privacy), adh’d to as modified on recons, 152 Or App 135 (1998); Public Records Order, Nov 26, 1990, Hogan, at 3 (little remaining public interest in withholding the disciplinary letter where the underlying conduct had already been reported on).

[325] Oregonian Publ’g », 144 Or App at 187.

[326] Anderson », 163 Or App at 554.

[327] ACLU of Or., Inc. v. City of Eugene », 360 Or 269, 299 (2016) (analyzing ORS 181A.830(3) », which conditionally exempts personnel investigations of public safety employees if no discipline results).

[328] ORS 342.850(8) ».

[329] ORS 181A.830(3)–(4) ». See ORS 181A.830(1)(b) for a definition of “public safety employee.”

[330] ORS 192.385(2). See ORS 181A.355 for a definition of “public safety officer.”

[331] ORS 192.355(3).

[332] Public Records Order, June 22, 1993, Lear ».

[333] Letter of Advice to W.T. Lemman, at 3, 1988 WL 416244 (OP-6217) (Mar 29, 1988).

[334] Id.

[335] Public Records Order, June 19, 1995, Speede », at 3; Public Records Order, July 7, 1989, McCleery ».

[336] ORS 36.262(1) ».

[337] Id.

[338] These investigations are typically handled by Oregon OSHA, a division of the department.

[339] Public Records Order, Sept 19, 1997, Long », at 2–3 (exemption applied even though complaint had not come from an employee).

[340] See Pace Consultants, Inc. v. Roberts », 297 Or 590, 593 (1984) (similarly worded exemption did not apply to the complaints themselves).

[341] ORS 654.062(4) ».

[342] Public Records Order, Jan 27, 2006, Laws ».

[343] PUC is also permitted to, by rule, conditionally exempt from disclosure information submitted by local exchange telecommunications utilities or cooperatives. ORS 759.060(1) ».

[344] ORS 247.965(2) ».

[345] ORS 247.969(1) ».

[346] OAR 165-005-0130 ».

[347] ORS 247.967 ».

[348] Or Laws 2013, ch 325, § 1.

[349] See Public Records Order, Mar 14, 2014, Davis » (exemption potentially applied to information submitted by railroad companies).

[350] Id.

[351] Public Records Order, Aug 15, 2013, Wilson ».

[352] Public Records Order, Oct 23, 2007, Martin ».

[353] ORS 352.002 ».

[354] An example of a commodity commission is the Oregon Blueberry Commission. The full list of these commissions can be found at ORS 576.062 ».

[355] ORS 576.335, 576.345 ».

[356] See ORS 107.840 » (referring to the proceedings conducted under ORS 107.085 and 107.485).

[357] In Defense of Animals v. OHSU », 199 Or App 160, 175–79 (2005).

[358] Id. at 178–79.

[359] ORS 181A.355(16) ».

[360] See ORS 192.355(3).

[361] ORS 541.973(1) ».

[362] ORS 541.973(4).

[363] In Defense of Animals v. OHSU », 199 Or App 160, 173 (2005) (interpreting what is now ORS 192.502(21), which exempts certain information of OHSU) (quoting Webster’s Third New Int’l Dictionary 2068 (unabridged ed 2002)).

[364] Public safety officers include corrections officers, youth correction officers, emergency medical dispatchers, parole and probation officers, police officers, certified reserve officers, reserve officers, telecommunicators, regulatory specialists, and fire service professionals. ORS 181A.355(16) ».

[365] See ORS 181A.640 ».

[366] See ORS 181A.870(6) » (referring to violations of ORS 181A.840 to 181A.891, which regulate private security services).

[367] See ORS 181A.640(8) » (DPSST shall issue a report when it completes an investigation of a public safety officer or instructor); ORS 181A.870(6) (DPSST shall issue a report when it completes an investigation of an alleged violation of ORS 181A.840 to 181A.891).

[368] See ORS 192.345(12) (conditionally exempting personnel discipline actions), 181A.830(3)–(4) (conditionally exempting personnel investigations of public safety employees where no discipline results).

[369] E.g., Public Records Order, Aug 25, 2017, Brosseau »; see ACLU of Or., Inc. v. City of Eugene », 360 Or 269, 298 (2016) (“[T]he public interest * * * is particularly significant when it comes to the operation of its police departments and the review of allegations of officer misconduct.”).

[370] ORS 146.035(5) ».

[371] Public Records Order, Dec 14, 2012, Webb », at 3–4 (also noting the reduced privacy interests of the use of intoxicants when operating a motor vehicle).

[372] Public Records Order, July 1, 2015, Brosseau », at 7–8 (also noting the public interest in compiling reliable data on homicides in Oregon).

[373] Or Laws 2014, ch 37, § 1 ».

[374] Testimony, Senate Committee on General Government, Consumer & Small Business Protection, HB 4086, Feb 19, 2014, Ex 4 (statement of TriMet), available at https://olis.leg.state.or.us/liz/2014R1/Downloads/CommitteeMeetingDocument/35111 ».

[375] Or Laws 2015, ch 313, § 1 ».

[376] See ORS 192.355(3).

[377] Or Laws 2015, ch 550, § 5 ».

[378] ORS 192.338; see Coos County v. Or. Dep’t of Fish & Wildlife », 86 Or App 168, 172 (1987) (criticizing public body for “adopt[ing] an all or nothing approach, making no effort * * * to provide plaintiff with the purely factual portions”).

[379] See Coos County », 86 Or App at 171–72 & n 3 (suggesting that portions of questionnaires designed to rate the effectiveness of a state act were purely factual in nature); Bay Area Health Dist. v. Griffin », 73 Or App 294, 300–01 (1985) (portion of a report containing information on a hospital’s current staffing levels was purely factual and disclosable, even though the report generally consisted of subjective observations and recommendations); Public Records Order, Jan 15, 1997, Burr », at 9–10 (portions of job references discussing factual details of applicant’s employment were not exempt).

[380] MacEwan v. Holm », 226 Or 27, 43 (1961); see 38 Op Atty Gen 1761, 1978 WL 29465 (1978) (background materials provided to governing body in advance of public hearing were public records and subject to disclosure unless an exemption applied).

[381] City of Portland v. Oregonian Publ’g Co. », 200 Or App 120, 124 (2005).

[382] The public body’s balancing of interests should include not just an analysis of the interest in nondisclosure, but analysis of the public interest in disclosure as well. Kluge v. Or. State Bar », 172 Or App 452, 460 (2001) (summary judgment for the Bar was not appropriate where Bar did not “analyze[] the public’s interest in the disclosure of th[e] records and, consequently, [did] not weigh th[e] competing interests”).

[383] Oregonian Publ’g », 200 Or App at 122.

[384] Id. at 126–27.

[385] Id. at 125.

[386] Id. at 127.

[387] Coos County », 86 Or App at 172–73.

[388] Id. at 173.

[389] To the extent older public records orders can be read to allow conclusory or blanket assertions of a chilling effect, we consider those orders to be superseded by more-recent appellate cases and public records orders.

[390] Public Records Order, Oct 2, 1990, Esteve », at 4–5; see Public Records Order, Feb 24, 1989, Weill » (proposed opinion and order in a Department of Revenue appeal was not exempt where the department already had disclosed records that discussed the proposed order in some detail).

[391] Public Records Order, Oct 2, 1990, Esteve », at 5.

[392] Id. at 4–5; see also Public Records Order, May 16, 2018, Moore », at 4 (rejecting argument that an executive director’s recommendations on discipline of licensees should always be exempt).

[393] Public Records Order, Mar 30, 1989, Howser », at 4–7; see also Public Records Order, Oct 21, 1988, Best » (PUC’s candid analysis of contested case proceeding was exempt while proceeding was pending).

[394] Public Records Order, Jan 15, 1997, Burr », at 5–9. But see Public Records Order, July 17, 1997, Wilker », at 6 (suggesting an alternative of disclosing the substance of the evaluations but redacting the references’ identifying information).

[395] Jordan v. MVD », 308 Or 433, 441 (1989).

[396] Guard Publ’g Co. v. Lane County Sch. Dist. No. 4J », 310 Or 32, 42 (1990) (Fadeley, J., concurring).

[397] Jordan », 308 Or at 441.

[398] Id. In earlier decisions, the Court of Appeals had interpreted personal information to mean information not normally shared with strangers; in light of the Supreme Court’s subsequent decisions, we do not think this interpretation is valid. See Guard Publ’g », 310 Or at 36–37 & n 4 (noting that the Supreme Court’s decision in Jordanimplicitly rejected the Court of Appeals test).

[399] OHSU v. Oregonian Publ’g Co. », 278 Or App 189, 208–09 (2016). Of course, for specific types of tort claim notices there may be other public records exemptions that apply to claimants’ names. E.g., OHSU v. Oregonian Publ’g Co. », 362 Or 68, 93 (2017) (OHSU patient names in tort claim notices were exempt under ORS 192.558(1)).

[400] City of Portland v. Anderson », 163 Or App 550, 556 (1999).

[401] Jordan », 308 Or at 440, 443 & n 9; see Guard Publ’g », 310 Or at 39–40 (teachers’ names and addresses were not exempt unless public body could make an individualized showing of an unreasonable invasion of privacy).

[402] Guard Publ’g », 310 Or at 34, 40.

[403] Id. at 40; see also Mail Tribune, Inc. v. Winters », 236 Or App 91, 96 (2010) (sheriff’s blanket policy of nondisclosure of names of concealed handgun licensees did not establish individualized bases for nondisclosure, and therefore did not support exemption), superseded by statute, ORS 192.374.

[404] Public Records Order, Sept 9, 1996, Burns ».

[405] Public Records Order, Nov 1, 2016, Perkowski ».

[406] Public Record Order, May 5, 2015, Brosseau », superseded by statute, ORS 192.355(41).

[407] Jordan », 308 Or at 442–43 (concluding, based on the affected individual’s affidavit, that disclosure would result in an unreasonable invasion of privacy).

[408] Id. at 441.

[409] Id. at 444–45 (Gilette, J., concurring).

[410] Id. at 442–43.

[411] Id.

[412] Id. at 435–36.

[413] Id. at 444 (Gillete, J., concurring) (court’s holding that individual’s address could be withheld was justified because public body could “reasonably anticipate that, should it release the * * * information to [requester], that person would immediately and unreasonably invade the privacy of Citizen”).

[414] Public Records Order, July 14, 2015, Baker », at 5.

[415] Public Records Order, Oct 1, 2010, Hinkle », at 4.

[416] Guard Publ’g », 310 Or at 37 n 5.

[417] Id. at 37–38 (“An individual claiming an exemption from disclosure must initially show a public body that the exemption is legally and factually justified. * * * If the public body is satisfied that a claimed exemption from disclosure is justified, it may, but is not required to, withhold disclosure of the information.”).

[418] Jordan », 308 Or at 443.

[419] Public Records Order, Apr 2, 1991, Williamson », at 3.

[420] Public Records Order, July 14, 2015, Baker », at 5.

[421] See Public Records Order, Apr 14, 1995, Mayes », at 2–3.

[422] Public Records Order, Nov 1, 2016, Perkowski ».

[423] See Jordan », 308 Or at 447 (Linde, J., dissenting) (discussing addresses).

[424] Public Records Order, May 31, 1990, Boles », at 3–4 (employee home addresses were exempt where requester sought this information in order to harass the employees at their homes).

[425] ORS 192.355(3). For a more in-depth discussion of this exemption, and its exceptions, see its entry below.

[426] ORS 802.177 ».

[427] Public Records Order, Apr 3, 1989, Harrison ».

[428] Public Records Order, June 20, 2012, Crombie », at 4 (also noting that there was no reason to believe that the cardholders were complicit in the criminal activity).

[429] Public Records Order, Mar 21, 2017, Zaitz », at 5–8.

[430] Id. at 6.

[431] Id. at 7.

[432] 41 Op Atty Gen 437, 1981 WL 151688 (1981) (public employee’s routine job performance evaluation material was not exempt).

[433] City of Portland v. Anderson », 163 Or App 550, 557 (1999) (records pertaining to investigation of police captain’s use of escort service that may have served as a front for prostitution); see Oregonian Publ’g Co. v. Portland Sch. Dist. No. 1J », 144 Or App 180, 188 (1996) (disclosure of information about the alleged misuse and theft of public property by public employees would not constitute an unreasonable invasion of privacy), adh’d to as modified on recons, 152 Or App 135 (1998).

[434] Jensen v. Schiffman », 24 Or App 11, 17 (1976) (discussing an exemption for criminal investigatory information, which allows a public body to withhold this information if disclosure would cause an unreasonable invasion of privacy).

[435] Public Records Order, May 25, 1994, Laine », at 3–5.

[436] Public Records Order, Oct 1, 2010, Hinkle », at 6–7.

[437] Public Records Order, Mar 27, 1992, Leighty », at 2–3.

[438] Public Records Order, May 5, 1994, Wright », at 2 (petition denied as moot because agency agreed to release requested records).

[439] ORS 192.368(1). However, this exemption does not apply to county property and lien records. ORS 192.368(6).

[440] ORS 192.368(1).

[441] OAR 137-004-0800(3) ».

[442] ORS 192.368(5).

[443] ORS 192.368(3)(a). Nothing expressly precludes an individual from renewing a request for confidentiality at the end of the five years. See OAR 137-004-0800(4)(b) » (permitting individual to submit a new request after five years). With respect to voter registration records, the confidentiality lasts until the individual is required to update the registration. ORS 192.368(3)(b).

[444] ORS 192.368(2)(b).

[445] ORS 192.368(2).

[446] ORS 192.368(4).

[447] Public Records Order, Nov 19, 1999, Birhanzl », at 2.

[448] ORS 192.374(5).

[449] ORS 192.374(1).

[450] ORS 192.374(1)(a)–(c).

[451] ORS 192.374(1)(d).

[452] OAR 137-004-0900(2) ».

[453] ORS 192.374(1)(e). The requester must also submit written proof that the requester is the victim of the crime or protected by the protective order. ORS 192.374(2)(a). The covered crimes are any “person felony” or “person Class A misdemeanor,” as defined in the rules of the Oregon Criminal Justice Commission, see OAR 213-003-001 », and any crimes constituting domestic violence, see ORS 135.230 ». ORS 192.374(6)(b) (defining “person crime”).

[454] ORS 192.374(1)(f). The requester must submit written proof of this bona fide status. ORS 192.374(2)(b).

[455] And the exemption does not override any obligations the public employer has to provide this information under the law on collective bargaining.

[456] ORS 192.363(1).

[457] ORS 192.363(3), (5). Presumably this seven-day period allows the affected employees (and representatives of the employees) to submit responses to the requester’s statement on the public interest in disclosure.

[458] ORS 192.363(6) (emphasis added).

[459] ORS 192.365(1) (2017), amended by Or Laws 2018, ch 75, § 10 ». The Judicial Department and the Department of Transportation are not subject to this exemption. ORS 192.365(2).

[460] See ORS 192.365(1) (noting that a public body shall disclose the covered information “upon compliance with ORS 192.363”).

[461] ORS 192.371(2).

[462] Id.

[463] Hood Tech. Corp. v. Or.-OSHA », 168 Or App 293, 305 (2000) (quoting Guard Publ’g Co. v. Lane County Sch. Dist. No. 4J », 310 Or 32, 40 (1990)).

[464] Gray v. Salem-Keizer Sch. Dist. », 139 Or App 556, 563 (1996).

[465] Sadler v. Or. State Bar », 275 Or 279, 283 (1976); Gray », 139 Or App at 564 (this condition was satisfied where there was a clear understanding that the information would be kept confidential).

[466] Public Records Order, Nov 17, 1988, Rae », at 2; see also Jensen v. Schiffman », 24 Or App 11, 18 (1976) (distinguishing promise not to disclose from submission of information in confidence).

[467] Cf. Hood Tech. », 168 Or App at 295 n 1 (discussing agency practice of asking each complainant whether confidentiality was being requested).

[468] See Guard Publ’g Co. v. Lane County Sch. Dist. No. 4J », 96 Or App 463, 467–68 (1989) (this exemption did not apply to the names of replacement coaches because of state and federal laws requiring “that employe[e]s submit their names to their employers”).

[469] Public Records Order, Mar 3, 1997, Poo-sa´-key », at 4–5.

[470] See Guard Publ’g », 96 Or App at 467–68 (noting that names of public school teachers could not reasonably be considered confidential because teachers “are not anonymous or entitled to be”).

[471] E.g., Hood Tech. », 168 Or App at 304 n 7 (noting that discussion of the public interest condition applied “equally” to whether the information was of a type that reasonably should be confidential).

[472] Public Records Order, Apr 5, 2002, Meadowbrook », at 6–7; see also Public Records Order, Nov 8, 2004, Anderson », at 2 (ordering disclosure of complaint, despite complainant’s request for confidentiality, where public body had not obliged itself to confidentiality).

[473] See Public Records Order, Apr 5, 2002, Meadowbrook », at 6.

[474]Premier Tech. v. Or. State Lottery », 136 Or App 124, 134–35 (1995) (discussing whether these records were discoverable under ORCP 36 B).

[475] Public Records Order, Jan 15, 1997, Burr », at 4–5.

[476] E.g., Gray », 139 Or App at 566 (school district was not entitled to withhold employment reference forms where the requester did not seek identifying information).

[477] Hood Tech. », 168 Or App at 306–07; Public Records Order, Apr 12, 1990, Petterson », at 2 (ordering disclosure of information that had been “submitted solely with an intent to harass” an individual).

[478] ORS 40.275 ».

[479] While ORS 192.377 expressly references only the conditions that the information be submitted in confidence and not otherwise required by law to be submitted, the express reference to ORS 192.355(4) indicates a legislative intent to incorporate all five conditions.

[480] Public Records Order, Jan 26, 1993, Patten », at 4.

[481] Public Records Order, Jan 26, 1996, Gutbezahl », at 4–5.

[482] ORS 192.390.

[483] ORS 192.398(3).

[484] See ORS 723.002 » (chapter 723 is known as the Oregon Credit Union Act).

[485] See ORS 725.020 » (chapter 725 is known as the Oregon Consumer Finance Act).

[486] See ORS 144.791 ».

[487] See ORS 137.530(1) ».

[488] ORS 137.077 ».

[489] ORS 137.077(1)–(4).

[490] ORS 137.077(2).

[491] Public Records Order, May 2, 1989, Facaros », at 2–3.

[492] Public Records Order, Sept 20, 1999, Michael », at 2 (discussing the Family Educational Rights and Privacy Act, known as FERPA).

[493] Public Records Order, Mar 20, 2014, Arkin », at 1.

[494] ORS 676.175(1) ».

[495] Colby v. Gunson », 224 Or App 666, 676 (2008).

[496] Id. at 675–66. The legislature subsequently enacted a conditional exemption for these reports, ORS 192.345(36).

[497] E.g., Klamath County Sch. Dist. v. Teamey », 207 Or App 250, 260–61 (2006).

[498] ORS 192.355(9)(b)

[499] ORS 192.360(1). The likely intent of this condensation option is to allow a public body to avoid having to pore through all the relevant attorney-client privileged records to redact all the nonfactual information.

[500] Id.

[501] ORS 192.360(2).

[502] Id.

[503] See ORS 192.311(2) (defining “custodian”).

[504] ORS 192.311(2)(b).

[505] If the relevant exemption expressly applies to the receiving public body as well, then there is no need to invoke ORS 192.355(10). For example, ORS 419B.035(7) » expressly prohibits certain entities from redisclosing confidential child abuse records received from the originating public body.

[506] Public Records Order, Mar 21, 2017, Zaitz », at 5.

[507] Cf. Public Records Order, Dec 9, 2004, Redden », at 3 (State Archives consulted with governor’s office regarding request for disclosure of a previous administration’s records).

[508] Public Records Order, Sept 13, 2013, Iboshi », at 4 (prohibition applying to DHS did not prohibit the Secretary of State’s Audits Division from disclosing records received from DHS).

[509] See ORS 469.530 ».

[510] ORS 192.690(2).

[511] Public Records Order, Oct 1, 2010, Hinkle », at 11.

[512] Public Records Order, Dec 1, 2010, Thompson », at 5.

[513] Id.

[514] Public Records Order, Oct 20, 2009, Re », at 3.

[515] Public Records Order, Sept 27, 2010, Re ».

[516] Public Records Order, Oct 1, 2010, Hinkle », at 8–11.

[517] Id. at 8.

[518] Public Records Order, Dec 1, 2010, Thompson », at 5.

[519] Id. at 6.

[520] Id. at 6–7.

[521] Id. at 8.

[522] But see ORS 192.586(2)(b) (certain records relating to state investments in commercial mortgages must remain open to public inspection).

[523] ORS 98.352(1) ».

[524] ORS 98.352(4).

[525] Id.

[526] See Public Records Order, Dec 1, 1999, Nichol », at 3–4 (discussing legislative history of amendment to ORS 98.352 »).

[527] See ORS 469B.256(1) ».

[528] Public Records Order, May 6, 2009, Siemers », at 2–3 (analyzing ORS 470.065, a similarly worded exemption that applied to certain loans by the Department of Energy).

[529] See ORS 320.340, 320.330 » (making confidentiality provisions applying to taxes on net income applicable to the state transient lodging tax).

[530] See Koennecke v. Lampert », 198 Or App 444, 453 (2005) (treating later-enacted statute as exception to earlier statute when the two potentially conflicted).

[531] ORS 151.495(1) ».

[532] See OAR 436-060-0009 » for DCBS’s rules.

[533] Public Records Order, July 9, 1998, Scheminske », at 2–3.

[534] In Defense of Animals v. OHSU », 199 Or App 160, 173 (2005).

[535] Id.

[536] Id. at 174–75.

[537] Brown v. Guard Publ’g Co. », 267 Or App 552, 565–70 (2014).

[538] ORS 225.085 ».

[539] ORS 421.344 ».

[540] ORS 421.354(1).

[541] ORS 421.354(2).

[542] In Defense of Animals v. OHSU », 199 Or App 160, 173 (2005).

[543] See ORS 254.074(1) » (describing contents of these security plans).

[544] ORS 192.355(11).

[545] ORS 431A.865(1) ».

[546] Or Laws 2013, ch 550, § 5 ».

[547] See ORS 181A.355 to 181A.670 ».

[548] See ORS 181A.840 to 181A.891.