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Open Records II. EXEMPTIONS AND OTHER LEGAL LIMITATIONS A. Exemptions in the open records statute. 2. Discussion of each exemption. Exemptions under ORS 192.501. Each of these exemptions is conditional, that is, even if its scope applies, exemption is subject to whether "the public interest requires disclosure in the particular instance." The burden of proving the applicability of any exemption under ORS 192.501 is always on the public body. Moreover, there is always a presumption in favor of disclosure. Turner v. Reed, 22 Or. App. 177, 538 P.2d 373 (1975). The identity of the requester and her motives are never relevant in determining whether the request falls within the scope of the exemption. They are relevant, however, if the question of the public interest is reached. (1) Records of a public body pertaining to litigation in which the public body is a party or where the public body shows that such litigation is reasonably likely to occur. ORS 192.501(1). This exemption applies only to those records compiled or acquired by the public body for use in existing or demonstrably expected litigation and not records collected in the ordinary course of business, even if subsequently relevant to litigation. Lane County School District v. Parks, 55 Or. App. 416, 637 P.2d 1383 (1981). It does not apply to administrative proceedings or to litigation that has been concluded. (2) Trade Secrets. ORS 192.501(2). Trade secrets are defined by statute as non-patented formulae, plans, processes, production data and similar information. In order to qualify for the exemption, the information must be known only to certain persons within an organization, be used for business purposes, have an actual potential commercial value, and give a user an opportunity to obtain a business advantage over competitors. Fee schedules and price lists may qualify. The "trade secret" definition in the Oregon statute is somewhat narrower than in the Uniform Trade Secrets Act and this relationship is not clear. (3) Investigatory information compiled for criminal law purposes, other than the record of an arrest or the report of a crime, unless there is a clear need in a particular case to delay disclosure of an arrest or crime report. ORS 192.501(3). Disclosure of arrest information or the report of a crime may be delayed only if and for so long as a clear need is shown, including protection of the victim or complaining party. Again, this is a conditional exemption and the public interest may require disclosure. (4) Test questions, scoring keys, and other licensing examinations or employment testing data. ORS 192.501(4). The statute also covers procedures relating to administration and grading of examinations where the result might be affected by disclosure. This exemption is designed to protect the integrity of the testing or examination process. (5) Production, sale or purchase records or other private records required by law to be submitted to a public agency in order to determine fees or assessments and the amounts of fees or assessments payable. ORS 192.501(5). This exemption applies only if the information would permit identification of a specific business concern. The exemption does not cover business records submitted in connection with an application for a license or permit because this information is not utilized to determine a fee or assessment for establishing a production quota. (6) Real estate appraisals provided prior to acquisition. ORS 192.501(6). This exemption applies where the public body is interested in acquiring or condemning (but not disposing of) real property. (7) Names of employees requesting representation or decertification elections. ORS 192.501(7). This exemption is applicable only to information on specific individuals, not to the number of employees who have voted for or against such actions. (8) Investigatory information relating to a complaint filed with the Bureau of Labor. ORS 192.501(8). This exemption does not apply to the complaint itself. The exemption ends when the complaint is resolved or a final order is issued. (9) Investigatory information relating to unfair labor practice complaints. ORS 192.501(9). Again, the complaint itself is not exempt. (10) Reports or information received or compiled by the Director of the Department of Consumer and Business Services. ORS 192.501(10). This relates to investigations and enforcements concerning debt consolidating agencies. (11) Information relating to location of archeological sites or objects except in cases where a governing body of an Indian tribe requests such information for purposes of the tribe's cultural or religious activities. ORS 192.501(11). This exemption does not apply to commonly known and publicized tourist facilities or attractions. (12) Personnel discipline action or information supporting such action. ORS 192.501(12). This exemption relates only to records concerning a completed disciplinary action. It does not apply if an employee resigns. The Attorney General has taken the position that a public body may postpone a request for records while a disciplinary action is still pending. The public interest may in any event require disclosure. (13) Information developed under state statute regarding the habitat, location or population of any threatened or endangered species. ORS 192.501(13). This exemption is similar to the archeological site exemption, subsection (11) above. (14) Writings prepared by, or under the direction of, faculty of public educational institutions completed in connection with research. ORS 192.501(14). This exemption applies only before the information is released, copyrighted or patented. (15) Computer programs developed by a public body for its own use. ORS 192.501(15). This exemption does not pertain to original data or analyses of original data. The exemption includes information that would permit computer access. (16) Agricultural producers mediation records. ORS 192.501(16). This applies to information in connection with certain agricultural foreclosure proceedings. (17) Unsafe workplace investigations. ORS 192.501 (17). This applies to workplace investigatory information but only until a final determination is made. (18) Operational plans regarding threats to individual or public safety. ORS 192.501(18). This deals with anticipated threats to individuals or to the public safety and applies where disclosure would endanger individuals or jeopardize the law enforcement activity. (19) Audits of a telecommunications utility. 192.501(19). This exemption is designed to protect internal evaluations or critiques of the utility's operations and financial statements required to be filed under state law. It does protect an audit of a cost study that would be discoverable in a contested case dealing with rates or other matters. (20) The residence address of an elector (voter) where a showing of a reasonable threat to personal safety is present. ORS 192.510(20). The withholding of such information must be at the request of the voter, accompanied by verifiable information demonstrating the basis of the threat. This is similar to exemption under ORS 192.445. (21) Housing authority information submitted by applicants for, and recipients of loans, grants and tax credits. ORS192.501(21). This exemption applies to a variety of financial information relating to low income housing developers. (22) Records that, if disclosed, would allow unauthorized access to public property or would identify areas of structural or operational vulnerability allowing unlawful disruption of public services. ORS 192.501(22). This exemption protects the delivery of public services and permits withholding of building information and information that would allow access to public funds or information processing systems. (23) Records that, if disclosed, would reveal security measures relating to public employees, public buildings, computer or telecommunications services or the secured operations of the Oregon Lottery. ORS 192.501(23). This is a companion provision to ORS 192.501(22). (24) Personal information held by Oregon Health Sciences University (OHSU) or by the Oregon University System (OUS) relating to a person who has donated or is interested in donating to OHSU or OUS. ORS 192.501(24). The exemption applies to information that is personal in nature. (25) OUS donation records. This exempts the home address, professional address and telephone number of any person who has donated or is interested in donating to a state university, regardless of what public body holds that information. (26) Records of persons who file with, or pay an assessment to, certain state-created agricultural marketing group. ORS 192.501(25). This exempts disclosure of the names and addresses of those filing. (27) Financial transfer records. This exempts all information a public body possesses in relation to fund transfers. (28) Social Security numbers related to marital annulment, dissolution or separation. Court records on these subjects must redact SSN information. (29) Student e-mail addresses. This exempts all e-mail addresses of students attending a state institution of higher learning. (30) OHSU medical researcher information. This exempts personal information and location of those conducting research using animals. Exemptions which either are unconditional or have a self-contained balancing test concerning the public interest. ORS 192.502. (1) Communications within a public body or between public bodies of an advisory nature. ORS 192.502(1). This exemption applies to matters which are not factual and are preliminary. It applies only if the public body demonstrates in a particular instance that the public interest in encouraging "frank communication" between public officials "clearly outweighs" the public interest in disclosure. Drafts of materials and preliminary reports are public records for purposes of this exemption. Attorney General Manual, pp. 44-49. Moreover, factual matters must be disclosed in any event. (2) Information of a personal nature, including but not limited to the type of information kept in a personal, medical or similar file, if public disclosure of the information would constitute an "unreasonable invasion of privacy." ORS 192.502(2). This exemption applies only to information of a personal nature. The public body has the burden of establishing this. Moreover, it must be established that disclosure would constitute an unreasonable invasion of privacy, that is, disclosure would be "highly offensive" to a reasonable person. Even if this is shown, disclosure is appropriate if, by clear and convincing evidence, it is shown that the public interest requires it. (3) Public employee or volunteer addresses, birthdates, Social Security and telephone numbers maintained by a public agency. ORS 192.502(3). This exemption does not apply to elected officials except judges and district attorneys, or to substitute teachers when requested by the teacher's professional union, and it does not apply when the party seeking disclosure shows by clear and convincing evidence that the public interest requires disclosure. (4) Information submitted to a public body in confidence where such information is not required by law to be submitted. ORS 192.502(4). This exemption employs a five-part test: first, the information was submitted on the condition it would be kept confidential; second, the information was not required by law to be submitted; third, the information should reasonably be considered confidential; fourth, the public body must have committed itself, in good faith, to keep the information confidential; and finally, the public interest would suffer if the information were disclosed. (5) Information or records of the Department of Corrections (including State Parole Board) to the extent that disclosure would interfere with rehabilitation. ORS 192.502(5). This exemption does not apply unless the public interest in confidentiality "clearly outweighs" the public interest in disclosure. (6) Records, reports and other information compiled by the Director of the Department of Consumer and Business Services relating to lending institutions. ORS 192.502(6). This exemption applies only where the interests of lending institution officers, employees and customers in preserving confidentiality outweighs public interest and disclosure. (7) Pre-Sentence Reports, Reports of Probation Officers and Victims Statements. ORS 192.502(7). This exemption incorporates statutes prohibiting disclosure. (8) Any records which are prohibited from disclosure by federal law or regulations. ORS 192.502(8). The Attorney General concludes that this exemption applies even if the federal law enforces nondisclosure only indirectly, through loss of funds. (9) Records or information prohibited or restricted or otherwise made confidential or privileged under Oregon law. ORS 192.502(9). This is an unconditional exemption relating to numerous records statutes found outside of the Public Records Law. It includes evidentiary privileges. The Attorney General Manual gathers many of these provisions in its Appendix G. (10) Public records otherwise exempt which are transferred between or among public agencies. ORS 192.502(10). This exemption is designed to extend the exemption when records are transferred to another agency, if originally exempt or confidential. Under ORS 192.410(1), the custodian of a public record does not include a public body that has custody only as agent of another public body, unless the record is not otherwise available. (11) Records of the Energy Facility Siting Council concerning security programs. ORS 192.502(11). This exemption generally relates to security of nuclear power plants. (12) Employee and retiree personal information obtained by the Public Employees' Retirement System. ORS 192.502(12). This relates to personal financial information to be released only to the individuals it concerns. (13) Records submitted by private persons or businesses to the State Treasurer or to the Oregon Investment Council relating to matters under consideration for public investment. ORS 192.502(13). This exemption applies only to the extent that disclosure of such records would reasonably be expected to limit the ability of the Oregon Investment Council to compete effectively in pursuit of investment objectives. This exemption does not apply to concluded transactions. (14) Monthly reports concerning the Public Employees' Retirement Fund and Industrial Accident Fund. ORS 192.502(14). This exemption applies to such records for a period of 90 days at the end of each calendar quarter. (15) Reports of abandoned property until such time as the Director of the Division of State Lands has provided public notice thereof. ORS 192.502(15). This exemption applies for two years, only. (16) Records submitted to various economic development organizations. ORS 192.502(16). This exemption covers personal financial statements, certain agribusiness records, customer lists, marketing strategies, and negotiations where information is provided by applicants "for loans or services." (17) Reports submitted by private concerns used for computation of a transient lodging tax where the report would allow identification of the private concern. ORS 192.502(17). If the tax is delinquent for more than 60 days, however, disclosure of the identifying information shall occur, along with other data about the delinquency. (18) Information supplied for purposes of requesting court-appointed legal counsel. ORS 192.502(18). This exempts personal information submitted to obtain indigent defense. (19) Workers compensation claim records. ORS 192.502(19). Under certain limited circumstances, these records can be released to insurers or government agencies. (20) Sensitive business records of Oregon Health Sciences University (OHSU). ORS 192.502(20). This relates to records "not customarily provided to business competitors." (21) Records of OHSU regarding candidates for university president. ORS 192.502(21). (22) Library records, showing use of library materials by a named person. ORS 192.502(22). This exemption permits, but does not require, libraries to shield information about their patrons. (23) Financial information submitted by applicants for, and recipients of, low income loans, grants and tax credits through the state Housing and Community Services Dept. ORS 192.502(23). (24) Geographic information submitted by private forestland owners, voluntarily and in confidence to the State Forestry Dept. not otherwise required by law to be submitted. ORS 192.502(24). (25) Sensitive business records concerning the sale or purchase of electric power, where a competitive disadvantage would result. ORS 192.502(25). This applies to community-owned utilities. (26) Sensitive business records submitted to or developed by the City Klamath Falls relating to the Klamath Cogeneration Project. ORS 192.502(26). (27) Personally identifiable public utility customer information. ORS 192.502(27). This now extends to all identifying information of customers of electric utilities and those public bodies that provide water, sewer, or storm drain services. (28) A record of a person's address submitted to a special district for bus, carpool, or similar public transit purposes. ORS 192.502(28). (29) Sensitive business records relating to Oregon Corrections Enterprises not customarily provided to business competitors. ORS 192.502(30). This relates to prison industries. (30) Confidential submissions to the Department of Consumer and Business Services. (31) County Election Security Plans. (32) Security programs concerning utilities, petroleum, telecommunications, and data transmission. (33) Information concerning paternity or support judgments or orders as designated by the Chief Justice of the Supreme Court. (34) Public Safety Officer addresses, telephone numbers and e-mail addresses. This applies if the officer requests withholding. Reader comments: (1) Comment by Judy Forsythe, Wed, Oct 14, 2009, 1:51am Would a disclosure on a County's mapping programs be illegal if it merely said: "Subject property may include wetlands and/or high groundwater areas. Contact a private consultant or your County's Community Development Department for further information?" Submit a comment Have a tip or suggestion for other readers regarding this section? Please pass it on by filling out the form below. Entries may be shortened, edited, or even deleted if we feel they are not helpful to journalists or media attorneys using open records laws. |
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