- Does the Public Records Law require a public body to create a record by collecting information, recording oral statements, or otherwise?
- Is a public body required to make public records available for inspection or copying on a periodic basis, or as records come into the possession of the public body, in response to a “continuing request” for records?
- Is a public body required to provide copies of records for which someone else owns the copyright?
- May a public body establish a single “information officer” for all public records requests?
- Does the Public Records Law mandate that a public body require a requester to prepay the estimated cost of providing requested records?
- May a public body establish a charge of 50 cents per page for copies of public records?
- May a public body charge for time spent in reviewing records to determine which of them are exempt, and for time spent in separating exempt and nonexempt material?
- Is an indigent person entitled to waiver of the fee for inspection of copies of records?
- Is a public body obligated to disclose the personal addresses, personal telephone numbers, or dates of birth of its public employees?
- May I obtain names, addresses, and telephone numbers of individuals doing business with, licensed by, or seeking to be licensed by public bodies?
- Are an outside consultant’s report and recommendations paid for by a public body subject to disclosure?
- Is a calendar, planner, or phone message notepad maintained by a public employee subject to the Public Records Law?
- Can I get a transcript of material that is on tape?
- What if I am an inmate of the state penitentiary and the rules do not permit me to possess a public record that I am seeking?
- Do I have the right to actually inspect the original records, or can the public body require me to accept copies?
- Are records collected for the purpose of a pending contested case administrative proceeding exempt?
- Must a city release a police report to a victim who is filing a civil lawsuit after the criminal prosecution has been concluded?
- Must police officer notebooks be disclosed? Must access be given to police logs?
- May I inspect a draft of a report in process of preparation?
- Does a “policy or procedure” of nondisclosure by a federal agency justify nondisclosure under ORS 192.355(8)?
- Are birth and death records public records?
- Are bids and proposals submitted in response to Invitations to Bid (ITB) and Requests for Proposals (RFP) confidential?
- Are the records on juveniles who have been taken into custody available for inspection?
- Are medical records subject to the public records law?
- Should a public body redact an individual’s Social Security number (SSN) from records that otherwise are not exempt from disclosure?
- Is it a crime to tamper with public records?
- Who do I petition to review the denial of access to records in the custody of public universities, OHSU, special districts, Tri-Met, the Port of Portland, or community colleges?
- May a business sell public database information for profit?
- How can a public body be expected to determine within five business days of receiving a records request whether or not it is the custodian of the records?
- How can a public body be expected to fulfill all public records requests within 15 business days, given the complexity and scope of some requests?
- Is a public body permitted to negotiate the scope of the records request with the requester?
- How much information should be provided by a public body that is denying all or part of a records request?
Does the Public Records Law require a public body to create a record by collecting information, recording oral statements, or otherwise?
Generally, no. A public body is required to allow inspection of existing public records in its custody, unless an exemption applies.
However, the Public Records Law does require a public body to use its computer software or programs to retrieve and make available, to the extent possible, data or information the public body stores in electronic form.
Is a public body required to make public records available for inspection or copying on a periodic basis, or as records come into the possession of the public body, in response to a “continuing request” for records?
No. A public body is only required to make available nonexempt records that are in the public body’s custody at the time the request is made. Persons seeking to inspect or to obtain copies of records of a public body on a continuing basis may be required to make successive requests for records. Of course, a public body may choose to honor a continuing request.
Is a public body required to provide copies of records for which someone else owns the copyright?
Under federal law the owner of a copyright has the exclusive right to reproduce or distribute copyrighted work, although others may copy a limited amount of the work under the “fair use” doctrine.[549] The Public Records Law does not authorize public bodies to violate federal copyright law. A public body must permit a requester to inspect copyrighted materials, but should not make copies or allow someone else to make copies of such materials without the copyright owner’s consent or on advice of legal counsel.
May a public body establish a single “information officer” for all public records requests?
Yes. In fact, it is a good idea to have one person responsible for coordinating public records requests, so long as that arrangement will not result in unnecessary delay.
Does the Public Records Law mandate that a public body require a requester to prepay the estimated cost of providing requested records?
No. A public body may require prepayment of estimated fees, but the law does not mandate that it do so. However, a public body may charge a fee in excess of $25 only if it first provides a written cost estimate and receives confirmation from the requester to continue processing the request. The public body has the option of requiring prepayment of the estimated fee or waiting to collect its actual costs of responding to the request.
In practice, some public bodies require an initial payment of 50% of the estimated amount, and then require payment of the remaining amount when the records are ready to be delivered and the public body’s actual cost has been finalized.
May a public body establish a charge of 50 cents per page for copies of public records?
Yes, but only if that amount reasonably reflects its actual cost including the time of the person locating and copying the record, plus administrative overhead. A public body may not charge more than its actual cost of making the records available for inspection or for furnishing copies. State agencies subject to DAS Statewide Policy 107-001-030 on public records fees should make sure any copying charges comply with that policy.[550]
May a public body charge for time spent in reviewing records to determine which of them are exempt, and for time spent in separating exempt and nonexempt material?
Yes. This activity is an essential part of making records available for inspection, and the public body is entitled to recover its actual cost. (If the public body is a state agency, it must adopt a rule establishing the basis for its charges.) Although a public body may not charge for time its attorney spends determining how the Public Records Law applies to the requested records, it may recover the cost of time the attorney spends reviewing public records and separating exempt and nonexempt material at the public body’s request.
Is an indigent person entitled to waiver of the fee for inspection of copies of records?
Not automatically. While indigence is a factor that a public body may consider in deciding whether to grant a request for a fee waiver under ORS 192.324(5), the overriding factor is whether disclosure to the requester will primarily benefit the general public.
Is a public body obligated to disclose the personal addresses, personal telephone numbers, or dates of birth of its public employees?
Generally no. For most public employees, certain personal information contained in their personnel records is exempt from disclosure under ORS 192.355(3). The exemption can be overcome, however, if the requester provides clear and convincing evidence that the public interest clearly requires disclosure under the particular circumstances. This information about elected officials generally is not exempt.
May I obtain names, addresses, and telephone numbers of individuals doing business with, licensed by, or seeking to be licensed by public bodies?
Generally, yes. In some cases, however, the information may be exempt from disclosure.
Are an outside consultant’s report and recommendations paid for by a public body subject to disclosure?
Yes, although various exemptions may apply to all or parts of the report.
Is a calendar, planner, or phone message notepad maintained by a public employee subject to the Public Records Law?
If a public employee’s calendar, planner, or phone message notepad contains information relating to the conduct of the public’s business, it is a public record subject to the disclosure provisions of the Public Records Law. If a calendar or planner contains both information relating to the conduct of the public’s business and personal information about the employee, such as social activities outside of regular working hours or doctor’s appointments, that information possibly can be redacted under the personal privacy exemption, ORS 192.355(2).
Can I get a transcript of material that is on tape?
In general, you are entitled only to listen to the tape, and to make (or be furnished) a copy of the tape. The public body is not required by Public Records Law to make a transcript of the tape, although of course it may. If you have a disability that prevents you from listening to a tape, you may be entitled to the record in an alternative format.
What if I am an inmate of the state penitentiary and the rules do not permit me to possess a public record that I am seeking?
The Public Records Law does not authorize inmates to possess materials that are forbidden by the rules of the Oregon Department of Corrections. It may be possible to arrange for public records to be delivered to someone on your behalf who is not incarcerated.
Do I have the right to actually inspect the original records, or can the public body require me to accept copies?
You have the right to inspect original records, except for particular documents that contain exempt material, or where the public body has justifiably adopted a requirement that only copies will be furnished because this is necessary to protect the records or to prevent interference with its work.
Are records collected for the purpose of a pending contested case administrative proceeding exempt?
Not as such. An administrative proceeding is not “litigation,” and therefore ORS 192.345(1) (exempting records prepared for ongoing or anticipated litigation) does not apply. The fact that the ultimate order may lead to litigation is not a ground for nondisclosure. Some of the records also may be exempt for other reasons.
Must a city release a police report to a victim who is filing a civil lawsuit after the criminal prosecution has been concluded?
Generally yes, although certain sensitive information may be redacted on a case-by-case basis, such as information where disclosure would interfere with future investigations.
Must police officer notebooks be disclosed? Must access be given to police logs?
Notebooks and logs are public records. Specific exemptions, such as those for criminal investigation information, ORS 192.345(3), and information submitted in confidence, ORS 192.355(4), may apply. Any information that is not exempt must be made available.
May I inspect a draft of a report in process of preparation?
Maybe, maybe not. The fact that a document is currently a draft generally is not, in itself, a basis for withholding. But it might be withheld if one or more specific exemptions apply to it. For example, the exemption for internal advisory communications, ORS 192.355(1), applies to frank, internal discussions if the public body shows that the public interest in encouraging such discussions clearly outweighs the public interest in disclosure.
Does a “policy or procedure” of nondisclosure by a federal agency justify nondisclosure under ORS 192.355(8)?
No. This exemption justifies nondisclosure only when the Oregon public body’s disclosure is prohibited by federal law or regulation. We have concluded that this prohibition requirement is satisfied by federal laws cutting off federal funding if the state discloses specified information.
Are birth and death records public records?
Abstracts (summaries) of birth and death records are open to public inspection. With several exceptions, birth records for births occurring within 100 years of the request and death records for deaths occurring within 50 years of the request (other than abstracts) are exempt from disclosure under ORS 432.350 ». A subject of the record or the subject’s spouse, child, parent, sibling, or legal guardian may inspect a birth or death record, as may the authorized representative of any of those persons, or a person who can demonstrate that he or she intends to use the information solely for research purposes. A person also may inspect a death record upon demonstrating that the record is needed to determine or protect a personal or property right.
A requester wishing to appeal a decision by a custodian of vital records to deny access to information may proceed under the judicial review provisions of the Administrative Procedures Act for orders other than contested cases, ORS 183.484.[551]
Are bids and proposals submitted in response to Invitations to Bid (ITB) and Requests for Proposals (RFP) confidential?
Bids are confidential, but only prior to the close of the invitation to bid and the time set for bid opening.[552] Once bids have been opened, they are available for public inspection, unless certain information is exempt either as a trade secret under ORS 192.345(2) or as confidential information under ORS 192.355(4).[553]
Proposals are confidential until after the notice of intent to award a contract is issued.[554] Thereafter a contracting agency may withhold from disclosure those parts of a proposal for a goods or services contract that qualify as exempt under any provision of ORS 192.345 or 192.355.[555] The contracting agency may withhold from disclosure those parts of a proposal for a public improvement contract that qualify as exempt either as a trade secret under ORS 192.345(2) or as confidential information under ORS 192.355(4).[556]
Are the records on juveniles who have been taken into custody available for inspection?
Juvenile court records, as well as reports and other materials relating to a juvenile’s history and prognosis, generally are exempt from disclosure because they are made confidential or privileged under the Juvenile Code.[557]
However, unless there is a need to delay disclosure in the course of an investigation, the Juvenile Code expressly provides for disclosure of the following information when a youth is taken into custody in circumstances where, if the youth were an adult, the youth could be arrested without a warrant: the youth’s name and age, whether the youth is employed or in school, the offense for which the youth was taken into custody, the name and age of the adult complaining party and the adult victim, the identity of the investigating and arresting agency, the time and place the youth was taken into custody, and whether there was resistance, pursuit, or a weapon used.[558]
In addition, the Juvenile Code provides for disclosure of the youth’s name and birth date; the basis for the juvenile court’s jurisdiction; the date, time, and place of any juvenile court proceeding in which the youth is involved; the act alleged in the petition if it is one that if committed by an adult would constitute a crime; the portion of the juvenile court order providing for the legal disposition of the youth if the youth is within the juvenile court’s jurisdiction for an act that if committed by an adult would constitute a crime; and the names and addresses of the youth’s parents or guardians.[559]
Are medical records subject to the public records law?
Medical records in the custody of public bodies are subject to the Public Records Law. ORS 179.505 » addresses the disclosure of medical records maintained by certain publicly operated institutions and programs, such as Oregon State Hospital and the Department of Corrections. Other state or federal laws may also restrict or prohibit disclosure of records to the extent they contain health information.[560] Such information may also be exempt from disclosure under the personal privacy exemption, ORS 192.355(2).
Medical records maintained by private physicians or hospitals are not covered by the public records law because they are not in the possession of public bodies. Some guidance on the disclosure of such records may be found in ORS 192.553 to 192.581.
Should a public body redact an individual’s Social Security number (SSN) from records that otherwise are not exempt from disclosure?
We recommend that public bodies should not disclose any SSNs without advice from their legal counsel. Public employees’ SSNs contained in the public employer’s personnel records are exempt from disclosure under ORS 192.355(3) , absent clear and convincing evidence of a public interest. And various other exemptions expressly exempt the SSNs of certain individuals. SSNs may also be exempt under the personal privacy exemption, ORS 192.355(2).
The Oregon Court of Appeals has held that SSNs of a city’s employees were not exempt under the personal privacy exemption.[561] However, the court reached that result without discussion, and the decision came before the express exemption for SSNs of public employees in ORS 192.355(3); before the Oregon Supreme Court had interpreted the personal privacy exemption; and before various federal courts had interpreted the federal version of the personal privacy exemption to apply to SSNs.[562] In addition, the Court of Appeals opinion predated the 1990 amendments to the Social Security Act that prohibit disclosure of SSNs in certain instances.[563]
Is it a crime to tamper with public records?
Yes. Under ORS 162.305(1) », a person commits the crime of tampering with public records if, without lawful authority, the person knowingly destroys, mutilates, conceals, removes, makes a false entry in, or falsely alters any public record. Tampering with Oregon State Lottery records is a Class C felony, while tampering with other public records is a Class A misdemeanor.
Who do I petition to review the denial of access to records in the custody of public universities, OHSU, special districts, Tri-Met, the Port of Portland, or community colleges?
The district attorney of the county in which the public body is located.
May a business sell public database information for profit?
Generally, yes.[564] For example, a private business may obtain public database information from a public body, transfer it to CD-ROM (or some other format that makes the information easy to access) and then sell the CD-ROM for a profit. While members of the public could obtain the information directly from the public body, they may be willing to pay for the information if it is in a more easily accessible format. Although public bodies may only recover their actual costs in making records available, a private business may charge whatever the market will bear.
How can a public body be expected to determine within five business days of receiving a records request whether or not it is the custodian of the records?
If a public body is unable to determine within five business days whether or not it is the custodian of the requested records, it can notify the requester of this uncertainty. We recommend that a public body responding this way provide the requester with the estimated date by which the public body will be able to provide a substantive update on the request. One of the driving purposes of the deadlines at five and fifteen business days is to keep requesters updated on the progress of their requests.
How can a public body be expected to fulfill all public records requests within 15 business days, given the complexity and scope of some requests?
If a public body is still processing a request after 15 business days, the deadline can be satisfied by providing written notice to the requester of this continued processing and of a reasonable estimated date when the request will be completed. Of course, public bodies complying with the deadline must still complete requests as soon as practicable and without unreasonable delay.
In addition, the 15 business-day deadline is tolled while the public body is awaiting payment or clarification from the requester. For public bodies struggling to monitor compliance with the deadline, we recommend sending a reasonable estimated date of completion to the requester as soon as payment is received, or as soon as the public body decides to process the request for no charge.
Is a public body permitted to negotiate the scope of the records request with the requester?
Yes. For broad, complex, or costly requests, we recommend that a public body discuss scope with the requester. These conversations can be particularly constructive when the public body first determines the extent of its responsive records, likely exemptions, and alternatives that will allow the requester to obtain substantive information in a less costly manner.
Some possible ways to limit the scope of the request are to agree on search terms, a date range to search, and which public employees’ records to search. Public bodies that have electronic records management systems can offer to limit the scope of the request to specific matters, or to searches within specific matters.
While a requester is not obligated to modify the scope of the request, many requesters appreciate the opportunity to figure out ways to get the most informative records in a more timely manner and at a reduced cost.
How much information should be provided by a public body that is denying all or part of a records request?
A public body is generally required to provide the specific statute it is relying on to deny the request. However, it is good practice to also provide a brief description of the exemption.[565] And in certain circumstances a public body may want to provide additional information: for example, if the public body is asserting several exemptions or dealing with a broad records request, it can provide a brief description for each exemption of what records are being withheld.[566]
The goal is to provide the requester with enough information to understand why access was denied and to determine whether or not to appeal the denial. Providing the requester with more information than the bare minimum can help avoid disputes over the denial.
A public body is also required to direct the requester to the process for appealing the denial.[567]
[549] 17 USC §§ 106, 107, 501.
[550] The policy is available at http://www.oregon.gov/das/Policies/107-001-030.pdf ».
[551] ORS 432.350(8) »; Public Records Order, Apr 7, 1995, Pittman » (interpreting previous version of ORS 432.350).
[552] See ORS 279B.055(5)(a) » (contracts for goods or services); 279C.365(3)(c) », (4) (public improvement contracts).
[554] ORS 279B.060(6)(a) » (contracts for goods and services); 279C.410(1) » (public improvement contracts).
[558] ORS 419A.255(6).
[559] ORS 419A.255(5).
[560] For example, HIPAA is a federal law dealing with the disclosure of protected health information by certain entities, while ORS 192.553 to 192.581 deal with the disclosure of this information by health care providers and state health plans.
[561] AFSCME v. City of Albany », 81 Or App 231, 233 (1986).
[562] See, e.g., Sheet Metal Workers Int’l Assoc. v. U.S. Dep’t of Veterans Affairs », 135 F3d 891, 905 (3d Cir 1998); Painting Industry of Hawaii Market Recovery Fund v. US Dep’t of the Air Force », 751 F Supp 1410, 1418 (D Haw 1990), rev’d on other grounds, 26 F3d 1479 (9th Cir 1994); Oliva v. United States », 756 F Supp 105, 107 (EDNY 1991); United Ass’n of Journeymen v. Dep’t of the Army », 841 F2d 1459, 1466 (9th Cir 1988).
[563] 42 USC § 405(c)(2)(C)(viii).
[564] Some statutes may specifically address the disclosure of public records to persons who intend to use the information for commercial purposes. See, e.g., ORS 247.955 » (prohibiting use of voter registration lists for commercial purposes).
[565] For example, “We have redacted portions of these records that contain personal medical information under ORS 192.355(2), the personal privacy exemption.”
[566] For example, “Your request for all records containing the term “hospital” turned up some consumer complaints containing personal medical information; we redacted this information under the personal privacy exemption, ORS 192.355(2).”
[567] See ORS 192.329(2)(f) for the specific wording to use.