Oregon
Eugene Register-Guard reporter Diane Dietz said successfully obtaining electronic records from government agencies, in her experience, is a toss-up.
"Some [agencies]
are great and some are terrible." While a member of the public can read
e-mails that pass between council members at the Eugene City Council, other
agencies such as the police department are "not very forthcoming with their
records."
While the 2003
legislature is trying to block security records and university donor names,
Dietz said that the law clearly defines electronic records and that the problems
often lie within the agency. "Some agencies have to be educated, especially
when they don’t have an aggressive paper there to educate them," she
said.
The law.
The Public Records Law covers information "regardless of physical form
or characteristics," including "every means of recording, including
. . . all . . . maps, files, facsimiles or electronic recordings." Ore.
Rev. Stat. § 192.410.
Computer programs
developed for or by a public body for its own use are exempt. § 192.501(15).However,
"computer program" does not include original data, analyses, compilations
and other manipulated forms of the original data produced by use of the program.
§ 192.501(15).
The law mandates
"all records, reports and proceedings required to be kept by law shall
be in the English language or in a machine language capable of being converted
to the English language by a data processing device or computer." §
192.310. "If the public record is maintained in machine readable or electronic
form, the custodian shall furnish proper and reasonable opportunity to assure
access." § 192.430(1).
For electronic
records, a custodian must "provide copies of the public record in the form
requested if available." Otherwise, the custodian must provide it "in
the form in which it is maintained." The statute allows agencies to collect
fees for "summarizing, compiling or tailoring such record, either in organization
or media, to meet the person’s request." § 192.440. The law exempts
from disclosure "computer programs developed or purchased by or for any
public body for its own use." A "computer program" does not include
"original data," or "analyses, compilations and other manipulated
forms of the original data produced by use of the program," or "mathematical
and statistical formulas which would be used if the manipulated forms of the
original data were to be produced manually." § 192.501(16).
For the Secretary
of State’s business registry records, the statute allows fees for "computer
generated lists on paper and electronic data processing media," for "terminal
access to the files of the office," and "copies of the programs and
files on paper or electronic data processing media," implying that such
material is public. Ore. Rev. Stat. § 56.140 (1993). However, another section
exempts "electronic data processing programs" and "electronic
media used to record, process or store documents" filed with the Secretary
of State under its business registry functions.
A requester may
get a specific format if the format is one which is either used by the government
agency or is one which is recognized by the Oregon State Archives Division under
its adopted administrative rules. A requester should consult with the specific
government agency from which it seeks the records. The Archives Division Rules
are found in Oregon Administrative Rules (OAR) Ch. 166 - Divisions 1, 5, 10,
15, 17, 20, 25, 30 and 40. Ore. Rev. Stat. § 192.440 (2) states that if
a record is maintained in electronic form, the custodian shall provide it in
the form requested, if available. A customized search can be done only if it
is compatible with a database software utilized by the public agency.
Cases
& opinions. Subject only to reasonable rules to protect records and
prevent interference with office work, a county may not refuse to copy a computer
tape containing public information. It must allow a requester to make copies
of written documents or computer tapes using the requester’s equipment.
39 Ore. Op. Att’y Gen. 721 (1979). Two computer programs used by the Department
of Revenue to generate appraisal information based on computer-stored data are
public records and must be disclosed upon request. Printouts generated by the
programs and containing information used in appraising real property also must
be disclosed on request. However, the department is not required to provide
automated appraisals that could be generated by these programs if the county
has not actually applied the programs to a particular property. Ore. Op. Att’y
Gen. OP-6126 (June 1, 1987).
Fees.
The law allows "fees reasonably calculated to reimburse [the agency] for
its actual cost in making . . . records available including costs for summarizing,
compiling or tailoring such record, either in organization or media, to meet
the person’s request." Ore. Rev. Stat. § 192.440(3) (1993). Fees
for access to the Secretary of State’s electronic records must be "reasonable."
§ 56.140. When an agency copies a computer tape, the fee may not exceed
the actual cost. 29. Ore. Op. Att’y Gen. 721 (1979). Fees for access to
geographic information system data shall be based on "market prices or
competitive bids." § 190.050.
E-mail.
E-mail is treated the same as any "hard copy" record under §
192.420 and is subject to the same disclosure provisions and exemption claims.
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