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Oregon

Open Government Guide

Author

Duane A. Bosworth
Derek D. Green
DAVIS WRIGHT TREMAINE LLP
1300 SW Fifth Ave., Suite 2400
Portland, Oregon 97201-5610
Phone: (503) 241-2300

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Foreword

The State of Oregon has a long tradition of extensive public participation in state and local government. The initiative, recall and referendum were all born in Oregon in 1902, introduced by W. S. U’Ren. Oregon’s modern open government era began in 1973 with the passage of the Oregon Public Records Law and its companion law, the Oregon Public Meetings Law.

The impetus for the 1973 enactment of the records and meetings statutes came from the Oregon Newspaper Publishers Association and a dedicated core of legislators who agreed that these issues should be handled comprehensively rather than on a case-by-case approach. They created a statutory scheme granting citizens and media representatives extensive access to the affairs of government. Introductory statements directing openness are found in both the Public Records and Public Meetings Laws. Withholding and closure are the exceptions. Statutory exemptions to disclosure are strictly construed in favor of disclosure.

The Oregon Legislature passed a series of amendments to the Oregon Public Records Law in 2017. A number of the substantive revisions are addressed in this guide. It is worth noting that a result of those amendments has been the renumbering of statutory references that had been in place for decades. This guide cites to the current Oregon Revised Statutes (ORS), 2017 Edition, with the corresponding former statutory citations included as well for reference.

Over the years, the state Department of Justice has played a central role in interpreting the Public Records and Meetings statutes and in aiding in their enforcement. The Attorney General publishes an updated Public Records and Meetings Manual (“Manual”) approximately every two years. It serves as a useful desk reference for many records and meetings questions. The Manual contains a review of all public records and public meetings statutes and an index and summary of Attorney General opinions. It also includes valuable commentary, including opinions about commonly raised questions. References to the Manual in the following discussion of the statutes are to the November 2014 version (an updated version of the manual, incorporating the 2017 amendments to the Public Records Law, has not yet been published).

The Manual is available online at no cost through the Oregon Department of Justice at: https://www.doj.state.or.us/oregon-department-of-justice/public-records/attorney-generals-public-records-and-meetings-manual-2014

We strongly recommend consulting the Manual on every Oregon public records or public meetings issue.

Largely as a result of heightened public and media awareness about the Public Records and Meetings Laws, political and commercial special interests have routinely sought legislative help in curtailing access to certain types of records and proceedings considered to be proprietary, private or of a sensitive economic or personal nature. This has resulted in a variety of statutes found outside of the public Records and Public Meetings Laws which contain disclosure restrictions. One of the laws enacted in 2017 by the Oregon Legislature (HB 2101) established a “Sunshine Committee” that is tasked with reviewing these exemptions and exceptions and making recommendations to future Legislatures as to their continued need and effectiveness. See ORS 192.511.

A number of things remain to be wished for with regard to open government in Oregon:

  • The cost of obtaining records has escalated and made some important searches prohibitive. Moreover, the law on fee waivers for matters truly in the public interest could use strengthening.
  • Open government advocates have long sought establishment of an ombudsman, with expertise in public records and public meetings, who might more efficiently, quickly and consistently resolve disputes. The 2017 laws took a significant step in this direction, creating a Public Records Advocate with authority to address certain (but not all) types of records disputes, as discussed more below.
  • Appeals of public records litigation can take years; they should be expedited, like mandamus proceedings.

Despite these continuing challenges, there is reason for optimism. The amendments to the Public Records Law that passed in 2017 are encouraging and may signal a renewed commitment on the part of policymakers to continue to improve on the legacy of transparency.

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Open Records

I. Statute

A. Who can request records?

1. Status of requester

Every person, regardless of nationality or residency, has a right to inspect any public record that is not expressly exempt from disclosure. ORS 192.314(1) (formerly ORS 192.420(1)). ORS 192.311(3) (formerly 192.410) defines “person” to include any natural person, corporation, partnership, firm or association, and any member or committee of the legislature. A public body may not use ORS 192.311(3) to request public records. Attorney General Manual, § I.A. The identity of the person seeking disclosure of a particular record may be relevant when a statutory exemption to disclosure requires a determination of the public interest in disclosure.

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2. Purpose of request

A requester’s purpose in wishing to inspect a public record is generally irrelevant. McEwan v. Holm, 226 Or. 27, 359 P.2d 413 (1961); Attorney General Manual, § I.A. As noted in Gray v. Salem-Keizer School District, 139 Or. App. 556, 565, 912 P.2d 938 (1996), however, the requester’s purpose may be taken into consideration under those statutory exemptions that call for a determination of the public interest in disclosure.

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3. Use of records

The Public Records Law does not restrict the subsequent use of information provided. Again, the use to be made may be relevant in determining the public interest in disclosure.

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4. Can an individual request records on behalf of a third party or organization?

B. Whose records are and are not subject to the Act

Under ORS 192.314 (formerly 192.420), the public records of every “public body” in the state are subject to inspection. ORS 192.311(4) (formerly ORS 192.410) defines “public body” 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 the state.” ORS 192.311(6) (formerly 192.410(5)) defines “state agency” to mean “any state officer, department, board, commission or court created by the Constitution or statutes of this state,” except the Legislative Assembly, which is exempt under the state Constitution. “Public corporations,” such as the state bar organization, the state health and sciences university, and a state accident insurance company, are subject to the public records laws. The records of private non-profit corporations and cooperatives are not subject to disclosure, however, even though those organizations may receive public funds and/or perform governmental functions.

The state Supreme Court has held that if an entity is the “functional equivalent” of a public body, the Public Records Law applies to it, listing a variety of factors to be considered. Marks v. McKenzie High School Fact-Finding Team, 319 Or. 451, 878 P.2d 417 (1994). Additionally, as noted in the Attorney General’s Manual, there are many public records in the custody of government agencies which, by special statutory exemption, are not subject to the Records Law.

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1. Executive branch

The right to inspect the public records of any “public body” in the state includes the records of any “state officer.” ORS 192.311(4) (formerly ORS 192.410). This right is limited by the definition of “public record,” which includes “any writing that contains information relating to the conduct of the public’s business” but expressly excludes “any writing that does not relate to the conduct of the public’s business and that is contained on a privately owned computer.”

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2. Legislative bodies

The records of legislative bodies other than the state legislature are subject to inspection under ORS 192.314 (formerly ORS 192.420) and the definitions of ORS 192.311(4) (formerly ORS 192.410). The state Legislative Assembly is not subject to the Public Records Law. ORS 192.311(6) (formerly ORS 192.410); see also ORS 171.405 (no requirement to keep records of acts of legislature other than enrolled laws and joint resolutions themselves) and ORS 192.005(5)(b) and (6)(b).

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3. Courts

All courts in Oregon are subject to Or. Const. Article I, § 10, which generally requires openness. ORS 192.311 provides that the Public Records Law applies to courts and court records. However, the “intended scope of the term ‘court records’” in ORS 192.311 “is not clear from the legislative history” of the statute, the Attorney General has opined. See Attorney General Manual § I.C; see also State ex rel. KOIN-TV v. Olsen, 300 Or. 392, 711 P.2d 966 (1985) (questioning applicability of Public Records Law under former version of ORS 192.410); Oregonian Publishing Co., LLC v. Waller, 253 Or. App. 123, 128 (2012) (noting the legislature added the word “court” to the definition of state agency and “court records” to the definition of “public record” in former ORS 192.410 “[i]n the wake of” the Olsen decision).

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4. Nongovernmental bodies

That a body receives public funds or benefits does not alone mean it is subject to the Public Records Law. In Marks v. McKenzie High School Fact Finding Team, 319 Or 451, 878 P.2d 417 (1994), however, the state court created a six-part test: (1) Was the entity created by government? (2) Is the function of the entity one traditionally performed by government or privately? (3) Can the entity bind government with its decisions or does it only make recommendations? (4) What is the nature and level of governmental financial and nonfinancial support? (5) What is the scope of governmental control over the entity’s activities and operations? and (6) Are the entity’s officers or staff public employees?

In the McKenzie High case, the Court found that a school fact-finding team, asked to investigate a high school’s performance, was not a public body and therefore not subject to the Public Records Law.

The Attorney General has taken the position that even if a private entity meets the Marks test, it does not necessarily mean that all of the private entity’s records are subject to the Public Records Law. Rather, the Attorney General’s position is that it is appropriate to “examine whether the entity possesses the requested records for purposes that are governmental in nature,” providing as an example that records pertaining to a contractor’s work on a program may be public records, but not all records of the private company will be subject to the Public Records Law. See Attorney General Manual, § I.B.2.

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5. Multi-state or regional bodies

ORS 192.314(1) (formerly ORS 192.420) allows inspection of “any public record of a public body in this state.” It is not clear that any multistate or regional body fits within the definitions of “public body,” ORS 192.314 (4) (formerly ORS 192.410), or “state agency,” ORS 192.314(6) (formerly ORS 192.410). The records of a multistate or regional body might otherwise fit within the definition of public record, ORS 192.314(5)(a) (formerly ORS 192.410(4)(a)), and ORS 192.314(1) (formerly ORS 192.420(1)) might be parsed to describe such records located within the state.

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6. Advisory boards and commissions, quasi-governmental entities

Whether such entities are subject to the Public Records Law is to be tested by the six factors of Marks v. McKenzie High School, supra.

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7. Others

The Attorney General has taken the position that the Public Records Law may be used to obtain records of a private entity that contracts with a public body but is not the functional equivalent of a public body if the public body has custody of the documents; the Attorney General has also opined that records owned by a public body but in custody of a private entity are also obtainable. See Attorney General Manual, § I.B.2.

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C. What records are and are not subject to the act?

1. What kinds of records are covered?

Pursuant to ORS 192.311(5)(a) (formerly ORS 192.410), a public record includes any writing containing information relating to the conduct of the public’s business prepared, owned, used or maintained by a public body regardless of physical form or characteristics. In 2005, the Legislative Assembly made express in what is now ORS 192.311(5)(b) (formerly ORS 192.410(4)(b)) that “public record” does not include any writing that does not both relate to the conduct of the public’s business and that is contained on a privately owned computer. This may be frankly redundant, since any writing that did not relate to the conduct of the public’s business was already not a public record, pursuant to ORS 192.311(5)(a). Moreover, it interestingly raises by negative inference the question whether everything on a publicly owned computer is a public record. Compare ORS 192.005(5) (stating that public records, for purposes of ORS 192.005 to 192.170 (concerning archiving of public records), do not include voice mail or telephone storage or retrieval systems, or Legislative Assembly records, including committee or employee records).

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2. What physical form of records are covered

ORS 192.311(7) (formerly ORS 192.410) specifies that a “writing” includes “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.” This means that all information stored on computer or in microfiche is included. ORS 192.324(3) (formerly ORS 192.440(3)) states that public records may be in “machine readable or electronic form.” E-mail is a public record, even including deleted e-mail. Moreover, the Attorney General has taken the position that while public bodies are not required to develop or acquire new or additional software or programs in response to a public records request, they are required to use available software and programs to retrieve available information, even if the report or document has not existed in that form before. Attorney General Manual, § I.C.1.

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3. Are certain records available for inspection but not copying?

All records that may be inspected may be copied. ORS 192.324(1) (formerly ORS 192.440).

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4. Telephone call logs

The Attorney General has taken the position that telephone messages on voicemail systems are public records but that public bodies are not required to retain them. Attorney General Manual, § I.C.1.

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5. Electronic records (e.g., databases, metadata)

a. Can the requester choose a format for receiving records?

Yes, qualified. ORS 192.324(3) (formerly ORS 192.440) states that if a record is maintained in electronic form, the custodian shall provide it in the form requested, if available.

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b. Can the requester obtain a customized search of computer databases to fit particular needs

Yes, qualified. The Attorney General has taken the position that such customized searches must be undertaken to retrieve data if the searches can be done with existing software and computer programs. Attorney General Manual, § I.C.1.

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c. Does the existence of information in electronic format affect its openness?

No. Public records are writings relating to the public’s business “regardless of physical form or characteristics.” ORS 192.311(5)(a) and (7) (formerly ORS 192.410 and); see also ORS 192.324(3) (formerly ORS 192.440).

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d. Online dissemination

ORS 192.318 (formerly ORS 192.430) requires a custodian of public records to provide “proper and reasonable opportunities for inspection and examination of the records in the office of the custodian” during usual business hours to persons seeking access to public records, and ORS 192.324 (1) (formerly ORS 192.440(1) requires “a reasonable opportunity to inspect or copy” public records.

In 2009, the Oregon Legislature established the Oregon Transparency Website, which provides for the proactive disclosure of certain information by state agencies and education service districts. See ORS 276A.250-262. The Oregon Transparency Website is discussed in more detail below.

Separately, in 2017, the Oregon Legislature passed SB 481, which creates the Chief Data Officer with the obligation to, inter alia, establish a central web portal for disclosable information using an open data standard. See ORS 276A.350 to 276A.374. The law specifically provides that it does not supersede any obligations imposed under the Public Records Law. ORS 276A.371.

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6. Email

7. Text messages and other electronic messages

8. Social media posts

9. Computer software

ORS 192.345(15) (formerly ORS 192.501) exempts “[c]omputer programs developed or purchased by or for any public body for its own use” from disclosure “unless the public interest requires disclosure in the particular instance.” The definition of “computer program” does not include data, analyses produced by software or mathematical and statistical formulas. ORS 192.345(15)(a)-(c). The statute does not specifically address software that is “licensed” as opposed to “purchased.” The Attorney General has concluded that ORS 192.324 (formerly ORS 192.440) requires public bodies “to retrieve and make available nonexempt computer or electronically stored data and information, when requested, through the computer software or programs in use by the public body,” but that under ORS 192.345(15) (formerly ORS 192.501) the public body is not required to disclose the underlying software or program. Attorney General Manual § 1.C.1. ORS 268.357, concerning software developed using public funds by metropolitan service districts, provides that “[n]otwithstanding any other provision of law, district software product programming source codes, object codes and geographic databases or systems are confidential and exempt from public disclosure under ORS 192.355 [formerly ORS 192.502].”

There is no case law specifically addressing metadata in the context of public records. ORS 192.324(3) (formerly 192.440) provides that “[i]f the public record is maintained in a machine readable or electronic form, the custodian shall provide a copy of the public record in the form requested, if available. If the public record is not available in the form requested, the custodian shall make the public record available in the form in which the custodian maintains the public record” (emphasis added). Because the form in which many electronic records are stored includes meta-data, it appears that this provision makes file metadata public, though no case has addressed the issue.

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10. Can a requester ask for the creation or compilation of a new record?

D. Fee provisions

1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

Under ORS 192.324(4) (formerly ORS 192.440) a fee “reasonably calculated to reimburse” the public body for its actual cost in making the records available may be charged. No more than the actual cost may be charged by a public body. 39 Op. Atty Gen. 721 (1979); see also In Defense of Animals v. OHSU, 199 Or. App. 160, 184-86, 112 P.3d 336 (2005). The records custodian has the burden of demonstrating the reasonableness of charges for “actual costs” and must do so with specific supporting data. Davis v. Walker, 108 Or. App. 128, 132, 814 P.2d 547 (1991). If such data is absent, the charges are per se not reasonable. Davis, supra. If the fee will exceed $25, a public body must first provide an estimate of the fee and confirm that the requester wants to proceed. ORS 192.324(4)(c) (formerly ORS 192.440).

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2. Particular fee specifications or provisions

A per-page charge for copies may include the cost of a routine or extraordinary file search and segregation of exempt material from non-exempt. ORS 192.324(4) (formerly ORS 192.440). Although a public body may charge for its attorney’s time in redacting and segregating exempt and non-exempt records, it may not charge for any attorney time spent to determine the applicability of exemptions. ORS 192.324(4)(b).

The Attorney General has held that public bodies may charge for searches even if no responsive records are located. Attorney General Manual § I.D.6.b.

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3. Provisions for fee waivers

Under ORS 192.324(5) (formerly ORS 192.440), a fee waiver or reduction is available where record disclosure “primarily benefits the general public.” An appeal process exists under ORS 192.324(6) (formerly ORS 192.440(6)). See In Defense of Animals v. OHSU, 199 Or. App. 160, 187-90, 112 P.3d 336 (2005) (discussing analysis required for fee waiver or reduction decision). Although the statute provides discretion to a public body whether to grant a fee waiver or reduction, the decision by the public body must be reasonable. Id. at 190.

The Attorney General has ruled that if a public body’s funding is from statutorily or constitutionally dedicated funds, it may not waive fees and must charge its actual costs. See Attorney General Manual § 1.D.6.b.2.

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4. Requirements or prohibitions regarding advance payment

A public body may require prepayment of its estimated charges before beginning to compile records. Attorney General Manual § 1.D.6.b. If actual charges prove to be less, a refund must be made. Id.

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5. Have agencies imposed prohibitive fees to discourage requesters?

There are instances in which public bodies have provided estimates of substantial fees in response to records requests. See In Defense of Animals, 199 Or. App. 160, 165 (2005) (public body provided estimate of over $150,000 for inspecting redacted daily logs). The reasonableness of such charges would be subject to review. See id. at 185 (“[W]e cannot conclude that OHSU’s assessed fee of approximately $151,000 was ‘reasonably calculated’ to reimburse it for its actual costs of providing the records, as required under ORS 192.440(3). Specifically, * * * we do not understand why it is necessary for OHSU to use professional staff, such as veterinarians, to redact that information.”).

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6. Fees for electronic records

E. Who enforces the Act?

1. Attorney General's role

The Attorney General’s role in enforcing the Public Records Law varies depending upon the circumstance. A person challenging the denial of a records request to a state agency (but not an elected official) can seek review from the Attorney General. ORS 192.411(1) (formerly ORS 192.450). If the Attorney General determines that the requested records should not be disclosed and the requestor seeks judicial review of that determination, the Attorney General will serve as counsel for the state agency. ORS 192.411(3).

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2. Availability of an ombudsman

The 2017 Legislature created the office of the Public Records Advocate. ORS 192.461-192.475. The Public Records Advocate’s role is to “provide facilitated dispute resolution services” when requested by either a requestor of public records held by a state agency or by the state agency itself. ORS 192.464.

A facilitated dispute resolution is to be completed within 21 days of a written request to the advocate, subject to extension by the parties. ORS 192.464(7). If the process results in an agreed resolution, the advocate will prepare a written agreement for signing by the requestor and the agency, which agreement shall then control the resolution of the dispute. ORS 192.464(8).

The Public Records Advocate “may” also provide such services in relation to requests for records from a city, upon the mutual consent of both the requestor and the city. ORS 192.464(6).

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3. Commission or agency enforcement

A person challenging the denial of a records request to a public body other than a state agency or elected official can seek review from the district attorney in which the public body is located. ORS 192.415 (formerly ORS 192.460).

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F. Are there sanctions for noncompliance?

Noncompliance with a public records request can result in a public body being required to pay the reasonable attorney fees of the requestor in a court action. ORS 192.431(3) requires the court to award reasonable attorney fees and costs to a requestor who prevails in a suit and allows the court to decide whether to award fees and costs (or a portion) if the requestor prevails in part.

In addition, if a state agency fails within seven days of an Attorney General order to disclose records to either comply with the order or provide notice of intent to seek judicial review (or fails to initiate proceedings seven days thereafter), the public body will be required to pay the requestor’s reasonable attorney fees regardless of who later prevails in the suit. Id.

Separately, tampering with public records is a criminal offense. ORS 162.305.

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G. Record-holder obligations

1. Search obligations

2. Proactive disclosure requirements

Oregon law mandates the state, through its Chief Information officer, to maintain a “Transparency Website,” to proactively publish certain categories of state agency information. See ORS 276A.250 – ORS 276A.262 (formerly ORS 184.480 – ORS 184.488). The website includes information on such topics as public meetings, budget, tax and financial information, and state contracting. State agencies and education service districts are to furnish the information about their respective agencies and districts to the Chief Information Officer, but only where they can do so “at no additional cost” and to the “extent practicable.”

The website is found at http://www.oregon.gov/transparency/pages/index.aspx

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3. Records retention requirements

Records retention requirements are found outside of the Public Records Law, at ORS 192.001 to 192.170, and the rules promulgated thereunder.

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4. Provisions for broad, vague, or burdensome requests

A. Exemptions in the open records statute

1. Character of exemptions

Exemptions are limited in their nature and scope because the Public Records Law is primarily a disclosure law. Jordan v. MVD, 308 Or. 433, 781 P.2d 1203 (1989). Oregon courts construe exemptions narrowly. Brown v. Guard Publishing Co., 267 Or. App. 552, 563 (2014). The “narrow construction” rule means that if there is a plausible construction of a statute favoring disclosure of public records, that is the construction that prevails. Colby v. Gunson, 224 Or. App. 666, 676 (2008).

Oregon may be said to have three broad categories of exemptions. The first two categories are generally described in ORS 192.345 and ORS 192.355 (formerly ORS 192.501 and ORS 192.502), which permit the public body to disclose records, if the public body so desires. As noted in Attorney General Manual, § I.E.1, the exemptions described in the Public Records Law allow the public body to refuse to disclose records but does not prohibit their disclosure or require that the public body withhold disclosure in order to protect third parties. See Colby v. Gunson, 224 Or. App. 666, 676 (2008). The claim of exemption is controlled by the public agency, not public officials or employees who may be the subject of the materials being sought. AFSCME v. State of Oregon, Dept. of Administrative Services, 150 Or. App. 87, 945 P.2d 102 (1997). These two categories of exemptions may be used for withholding records from the public, but they are subject to qualifying conditions.

The third category of exemptions incorporated into the Public Records Law through ORS 192.355(8) and (9) (formerly ORS 192.502(8) and (9)) is found in numerous federal or state statutory references or regulations outside of the Public Records Law. Some of these exemptions prohibit disclosure of records even if the agency is otherwise willing to provide the records or the records would otherwise be subject to disclosure under the law. A list of many of these statutes is found in Attorney General Manual, Appendix G. Additional exemptions may be hidden within other statutes.

The Oregon Attorney General maintains a searchable, online catalog of the more than 500 codified exemptions, with the stated purpose of assisting “public officials and members of the public in determining what information is exempt from public disclosure. The catalog is not intended to provide legal advice to public bodies or to members of the public.” The website is found here: https://justice.oregon.gov/PublicRecordsExemptions/

The Oregon Public Records statutes bear similarity in some cases to the Federal Freedom of Information Act, and appellate decisions occasionally, but not invariably, discuss the purpose and workings of parallel federal provisions.

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2. Discussion of each exemption

Exemptions under ORS 192.345 (formerly 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 192.345 (formerly ORS 192.501) is on the public body. Moreover, there is always a presumption in favor of disclosure. Guard Pub. Co. v. Lane County Sch. Dist. No. 4J, 310 Or. 32, 791 P.2d 854 (1990); Turner v. Reed, 22 Or. App. 177, 538 P.2d 373 (1975). The identity of the requester and her motives are not 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. 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 P2d 1383 (1981). It does not apply to administrative proceedings or to litigation that has been concluded.

(2) Trade Secrets. Trade secrets are defined by statute as non-patented formula, 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. 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. 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. 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. 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. 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. 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. 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. 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. This exemption does not apply to commonly known and publicized tourist facilities or attractions.

(12) Personnel discipline action or information supporting such action. 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. 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. This exemption applies only before the information is released, copyrighted or patented.

(15) Computer programs developed by a public body for its own use. 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. This applies to information in connection with certain agricultural foreclosure proceedings.

(17) Unsafe workplace investigations. This applies to workplace investigatory information but only until a final determination is made.

(18) Operational plans regarding threats to individual or public safety. 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. 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 not 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. 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 192.368 (formerly ORS 192.445).

(21) Housing authority information submitted by applicants for and recipients of loans, grants and tax credits. 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. 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. This is a companion provision to ORS 192.345(22) (formerly ORS 192.501(22)).

(24) Personal information held by Oregon Health Sciences University (OHSU) or referenced public universities relating to a person who has donated or is interested in donating to OHSU or the public university. The exemption applies to information that is personal in nature.

(25) Public university 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 groups. 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 referenced public universities or OHSU.

(30) OHSU medical researcher information. This exempts personal information and location of those conducting research using animals.

(31) Certain personal information of public safety officers, if requested.

(32) Personal information of certain government attorneys that is contained in deeds and records not in records of the county clerk. This exempts certain personal information if requested by prosecuting attorneys, except that certain financial, mortgage, and title companies may successfully request such information.

(33) Certain land management plans and conservation agreements.

(34) Sensitive records of the Oregon State Accident Insurance Fund Corporation (SAIF). This exempts sensitive business, financial, and commercial information of SAIF that is “not customarily provided to business competitors,” with certain enumerated exceptions.

(35) Records of pending investigations by the Department of Public Safety Standards and Training. This exempts information relating to investigations conducted under ORS 181.662 or 181.878 (6), until the department issues the report described in ORS 181.662 or 181.878.

(36) Medical examiner’s reports. This exempts a medical examiner’s report, autopsy report or laboratory test report ordered by a medical examiner under ORS 146.117.

(37) Audit-related materials of auditors related to audits of public bodies prior to issuance of final reports, with exceptions.

(38) Personally identifiable information concerning electronic fares related to public transit.

(39) Personal information of civil code enforcement officers, upon request.

(40) Police Body camera audio and video recordings of interactions with the public.

Exemptions which either are unconditional or have a self-contained balancing test concerning the public interest. ORS 192.355 (formerly ORS 192.502).

(1) Communications within a public body or between public bodies of an advisory nature. 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, § I.E.4.(1). 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.” 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. 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. By amendment in 2015, the party seeking disclosure must satisfy ORS 192.363 to obtain the records, and a public body must follow the specified process therein as well.

(4) Information submitted to a public body in confidence where such information is not required by law to be submitted. 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. 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. 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. This exemption incorporates statutes prohibiting disclosure.

(8) Any records which are prohibited from disclosure by federal law or regulations. 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. This is an unconditional exemption relating to numerous records statutes found outside of the Public Records Law. It includes evidentiary privileges, although it includes a limitation for attorney-client privilege under certain circumstances. 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. 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. This exemption generally relates to security of nuclear power plants.

(12) Employee and retiree personal information obtained by the Public Employees’ Retirement System. 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. 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) Certain investment records of or submitted to the State Treasurer, the Oregon Investment Council, the Oregon Growth Account Board or the agents of those entities relating to investments in private investment funds under ORS 293 or 348. Exempts background material such as financial statements, portfolio information, and agreements, but does not exempt information on the identity of funds and the value of investments.

(15) Monthly reports concerning the Public Employees’ Retirement Fund and Industrial Accident Fund. This exemption applies to such records for a period of 90 days at the end of each calendar quarter.

(16) Reports of abandoned property until such time as the Director of the Division of State Lands has provided public notice thereof. This exemption applies for two years only.

(17) Records submitted to various economic development organizations. 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.”

(18) Reports submitted by private concerns used for computation of a transient lodging tax where the report would allow identification of the private concern. 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.

(19) Information supplied for purposes of requesting court-appointed legal counsel. Exempts personal information submitted to obtain indigent defense.

(20) Workers’ compensation claim records. Under certain limited circumstances, these records can be released to insurers or government agencies.

(21) Sensitive business records of Oregon Health Sciences University (OHSU). This relates to records “not customarily provided to business competitors.”

(22) Records of OHSU regarding candidates for university president.

(23) Library records showing use of library materials by a named person. This exemption permits, but does not require, libraries to shield information about their patrons.

(24) Financial information submitted by applicants for, and recipients of, low income loans, grants and tax credits through the state Housing and Community Services Dept.

(25) Geographic information submitted by private forestland owners, voluntarily and in confidence to the State Forestry Dept. not otherwise required by law to be submitted.

(26) Sensitive business records concerning the sale or purchase of electric power, where a competitive disadvantage would result. This applies to community-owned utilities.

(27) Sensitive business records submitted to or developed by the City of Klamath Falls relating to the Klamath Cogeneration Project.

(28) Personally identifiable public utility customer information. This now extends to all identifying information of customers of electric utilities and those public bodies that provide water, sewer, or storm drain services.

(29) A record of a person’s address submitted to a special district for bus, carpool, or similar public transit purposes.

(30) Sensitive business records relating to Oregon Corrections Enterprises not customarily provided to business competitors.

(31) Confidential submissions to the Department of Consumer and Business Services.

(32) County election security plans. Exempts plans pursuant to ORS 254.074.

(33) Security programs concerning utilities, petroleum, telecommunications, and data transmission.

(34) Information concerning paternity or support judgments or orders as designated by the Chief Justice of the Supreme Court.

(35) Employer account records of the State Accident Insurance Fund Corporation (SAIF). Exempts all records specifically related to an employer’s account records at SAIF.

(36) Claimant files of the State Accident Insurance Fund Corporation (SAIF). Exempts all SAIF files and associated records of any person who has made a claim as defined in ORS 656.005.

(37) Military discharge records. Exempts, except as authorized by ORS 408.425, “records that certify or verify an individual’s discharge or other separation from military service.”

(38) Personal information related to visitors of domestic violence service and resource centers.

(39) Certain information reported to the Oregon Health Authority concerning prescription monitoring.

(40) Electronic mail addresses in the custody of public bodies, with the exception of e-mail addresses of employees used in their ordinary course of employment, with some exceptions. The Attorney General takes the position that the purpose of this exemption is to allow custodians to refuse requests for e-mail lists to send unsolicited e-mails or spam. Attorney General Manual § I.E.4.e(40).

(41) Personal information of individuals certified or licensed by the Department of Public Safety Standards and Training contained in the records maintained by the department.

(42) Personally identifiable information about veterans obtained by the Department of Veterans’ Affairs.

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B. Other statutory exclusions

ORS 192.363 to ORS 192.380 contains a number of additional exceptions and limitations concerning disclosure of records containing personal information in specific circumstances.

ORS 192.363 provides specific requirements for processing requests for records under ORS 192.355(3) (concerning certain personal information about public employees) and ORS 192.365 (disclosure of personal information about operators of care facilities).

ORS 192.368 describes the procedure for individuals to request the nondisclosure of personal contact information for safety reasons.

ORS 192.371 prohibits the disclosure of identification badges of public bodies without the written consent of the employee.

ORS 192.374 prohibits the disclosure of records or information that discloses the identities of holders of concealed handgun licenses, with certain exceptions.

ORS 192.377 requires public bodies in possession of information provided in confidence that is not otherwise required by law to be submitted to redact personal information before making a disclosure described in ORS 192.355(4).

ORS 192.380 provides immunity for public bodies disclosing information in compliance with requests subject to ORS 192.355(3), ORS 192.363, or ORS 192.365, and further provides an entitlement to recover the costs of compliance with ORS 192.363 regardless of whether the public body determines that the public interest requires disclosure.

ORS 192.385 prohibits disclosure of audio or video records of internal investigations of law enforcement officers, with some exceptions.

ORS 192.398 exempts from disclosure (1) records less than 75 years old which contain certain medical and health treatment information of a living individual if disclosure would constitute an unreasonable invasion of privacy; (2) sealed records less than 75 years old; (3) individuals’ records of custody or rehabilitation for a period of 25 years if disclosure would interfere with the rehabilitation of the person, under a balancing test, and (4) student records required by state or federal law to be exempt from disclosure.

The Attorney General Manual provides a list of statutes incorporated by ORS 192.502(9) in Appendix G.

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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

The Oregon Evidence Code and common law privileges, which are incorporated by ORS 192.502(9), permit withholding.

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D. Protective orders and government agreements to keep records confidential

E. Interaction between federal and state law

1. HIPAA

2. DPPA

3. FERPA

4. Other

F. Segregability requirements

G. Agency obligation to identify basis of redaction or withholding

III. Record categories - open or closed

Under the general authority of ORS 192.502(9) the Oregon Legislature has retained significant authority to limit disclosure of specific records provided to or compiled by particular agencies.

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A. Autopsy and coroners reports

ORS 192.345(36) (formerly ORS 192.501(36)) conditionally exempts from disclosure “a medical examiner’s report, autopsy report or laboratory test report ordered by a medical examiner under ORS 146.117.” These are open to family members or a personal representative of the deceased or to any person who may be criminally or civilly liable for the death; see ORS 146.035(S) regarding death records. In addition, deadly weapon and injury reports made under ORS 146.750 are confidential under ORS 146.780.

Coroner’s reports:

These are not generally subject to disclosure under ORS 146.035(5). ORS 192.345(36) (formerly ORS 192.501) conditionally exempts from disclosure “a medical examiner’s report, autopsy report or laboratory test report ordered by a medical examiner under ORS 146.117.”

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B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

Several conditional exemptions under ORS 192.345 (formerly ORS 192.501) exempt specific investigatory records “unless the public interest requires disclosure” in the particular instance. Specifically, ORS 192.345(8) conditionally exempts investigatory information relating to complaints filed with the Commission of the Bureau of Labor and Industries alleging unlawful employment practices or other civil rights violations. ORS 192.345(9) conditionally exempts investigatory information relating to any complaint or charge filed under certain statutes, ORS 243.676 and 663.180, which concern unfair labor practices. ORS 192.345(10) conditionally exempts information received or compiled by the Director of the Department of Consumer and Business Services with respect to investigations of debt consolidation agencies under ORS 697.732. ORS 192.345(12) conditionally exempts “[a] personnel discipline action, or materials or documents supporting that action,” but is limited to completed disciplinary actions where a sanction is imposed. City of Portland v. Rice, 308 Or. 118, 123, 775 P.2d 1371, 1374 (1989).

In one case, Oregon courts have determined that records of a school district’s investigation into alleged misuse and theft of district property were not exempt under former ORS 192.502(9), 192.502(12) or ORS 342.850(8). Oregonian Publishing Company v. Portland School District No. 1J, 144 Or. App. 180, 925 P.2d 591 (1996), modified 152 Or. App. 135, 952 P.2d 66 (1998), affirmed on other grounds 329 Or. 393, 987 P.2d 480 (1999). However, investigation reports consisting of attorney-client privileged communications are exempt under ORS 192.345(9) (former 192.502(9)). Klamath County School Dist. v. Teamey, 207 Or. App. 250, 140 P.3d 1152 (2006). ORS 192.345(17) conditionally exempts investigatory information relating to any complaint or charge filed under ORS chapter 654, which concerns workplace health and safety, such as charges filed with the Oregon Occupational Safety and Health Division during the investigation. While this exemption does not cover the complaint itself, a different statute, ORS 654.062, makes the identity of the complaining party confidential. See Attorney General Manual, § I.E.4.c.17. The Attorney General has determined that ORS 192.345(20), which exempts workers’ compensation claim records of the Department of Consumer and Business Services, prohibits a request for unredacted records of active worker’s’ compensation litigation cases. ORS 192.345(35) conditionally exempts records relating to certain investigations concerning licensing and certification by the Department of Public Safety Standards and Training. ORS 676.165 and 676.175 exempt investigatory information and issued reports concerning investigations by health professional regulatory boards.

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C. Bank records

Banking division reports and deposit information are governed by ORS 706.720 and 706.730. There are similar provisions to savings and loan associations under ORS 722.419. Certain limits concerning depositor information are set forth in ORS 192.550.

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D. Budgets

Under ORS 291.223, the state budget is prepared by the Governor every two years but cannot be publicly disclosed until December 1 of each even-numbered year. Other than ORS 291.223, there appears to be no statutory or case law specifically addressing budgets as public records. The Oregon Attorney General’s office determined, in one case, that a budget prepared by a public university for a foundation that was not a “public body” was nonetheless a nonexempt public record. Attorney General Manual, Appendix F (Public Records Order, April 22, 1988, Peter Murphy).

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E. Business records, financial data, trade secrets

See specific exemptions for: trade secrets (ORS 192.345(2) (formerly ORS 192.501(2))); production data (ORS 192.345(5) (formerly 192.501(5))); production, sales, and cost data or customer lists submitted to agencies (ORS 192.355(17) (formerly ORS 192.502(17))); and personal information (ORS 192.355(2) (formerly ORS 192.502(2))).

In addition, income tax reports under ORS 314.835 and 314.840 are not subject to disclosure, and export trading corporation financial records and trade secrets are exempt from disclosure as well under ORS 777.795. Industrial plant valuation information is considered confidential under ORS 308.413.

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F. Contracts, proposals and bids

G. Collective bargaining records

Until contract approval, these records are generally confidential unless both the public agency and the bargaining unit agree to their release. As noted later in the discussion of the Public Meetings Law, labor negotiations involving public bodies generally proceed in executive session without the presence of any news media. As a result, while there is no specific records exemption, the customary practice is to keep such records confidential as records of an executive session.

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H. Economic development records

See ORS 192.355(17).

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I. Election Records

Elector information is available for inspection as specified in ORS 247.940 and 945. Under ORS 247.965, voters may request that addresses be exempted from disclosure, and such an exemption remains in effect until the voter requests it be terminated or updates his/her registration information. Under ORS 247.973 no one but an election official may make a copy or provide a copy of a voter’s signature. Additionally, ORS 247.955 prohibits use of voter registration lists for commercial purposes.
There is no statute specifically addressing election results or suggesting different treatment for such records. In 38 Op Atty Gen 1318, October 13, 1977, the Oregon Attorney General concluded that an election officer may not refuse inspection of poll book solely because inspection may disclose how a particular elector voted.

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J. Emergency Medical Services records

K. Gun permits

In 2010, Oregon’s intermediate appellate court held that records of concealed handgun licenses are public records. Mail Tribune, Inc. v. Winters, 236 Or. App. 91, 237 P.3d 831 (2010). However, in 2012, the Oregon Legislature passed what is now ORS 192.374, which expressly prohibits disclosure of records or information identifying holders of concealed handgun licenses, except in certain circumstances.

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L. Homeland security and anti-terrorism measures

Exemptions concerning County election security and utilities security were enacted in 2005. ORS 192.355(32) and (33) (formerly ORS192.502(32) and (33)).

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M. Hospital reports

Patient-specific records are generally not subject to disclosure under ORS 192.553, et seq.

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N. Personnel records

These records are generally available for disclosure. But see ORS 192.345(12) (former ORS192.501(12)) (permitting a public body to make employee disciplinary actions confidential at the discretion of the employee); ORS 192.355(2) (former ORS 192.502(2)) (permitting withholding of 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”) and ORS 657.665 (permitting withholding of records of Employment Division). Special provisions apply for educators’ personnel files, including disciplinary matters. ORS 324.850.

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1. Salary

The gross pay of public employees has been determined not to be exempt under ORS 192.355(2) (former ORS 192.502(2)). Attorney General Manual, § I.E.4.d.2.d.

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2. Disciplinary records

ORS 192.345(12) (former ORS 192.501(12)) conditionally exempts “[a] personnel discipline action, or materials or documents supporting that action,” but is limited to completed disciplinary actions where a sanction is imposed. City of Portland v. Rice, 308 Or. 118, 123, 775 P.2d 1371, 1374 (1989). Disciplinary records of former teachers are subject to disclosure under ORS 339.388.

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3. Applications

Applications may be exempt under various exemptions for personal privacy and medical information, ORS 192.355(2) (former ORS 192.502(2)); personal financial information, Public Records Order, January 2, 1985 (Snell); the address or telephone number of an employee, ORS 192.355(3) (former ORS 192.502(3)); information submitted in confidence, ORS 192.355(4) (formerly ORS 192.502(4)); and other personal information.

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4. Personally identifying information

ORS 192.355(2) (former192.502(2)) exempts “[i]nformation 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,” and places the burden on the party seeking disclosure to show that disclosure would not be an unreasonable invasion of privacy. However, information in such a file that is not personal or the disclosure of which would not be an unreasonable invasion of privacy is not exempt. Attorney General Manual § I(E)(4)(e)(2). See also ORS 192.368.

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5. Expense reports

There are no statutes or cases that specifically address expense reports of government employees. ORS 192.345(5) (former 192.501(5)) conditionally exempts: “[i]nformation 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 which 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 which can be made of such information for regulatory purposes or its admissibility in any enforcement proceeding.”

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6. Evaluations/performance reviews

7. Complaints filed against employees

8. Other

O. Police records

ORS 192.345(3) (former 192.501(3)). Disclosure of arrest information or report of a crime may be delayed if a clear need is shown, including protection of the victim or complaining party.

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1. Accident reports

There is no statutory or case law specifically addressing this issue. The Attorney General has addressed disclosure of accident reports from the Department of Transportation and the Division of Motor Vehicles (DMV). See Appendix G of the Attorney General Manual.

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2. Police blotter

There is no statutory or case law specifically addressing this issue.

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3. 911 tapes

There is no statutory or case law specifically addressing this issue.

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4. Investigatory records

ORS 192.345(3) (formerly 192.501(3)) provides a conditional exemption for investigatory information compiled in criminal investigations while allowing only limited circumstances in which a record or arrest or the report of a crime may remain confidential. This exemption does not expire when the investigation is closed, though the closed status of the governmental investigation decreases the government’s interest in maintaining confidentiality. See Attorney General Manual, § I(E)(4)(d)(3).

ORS 192.355(1) (formerly 192.502(1)) exempts advisory communications where public interest in encouraging frank communication between officials and employees clearly outweighs the public interest in disclosure. In City of Portland v. Oregonian Publishing Co., 200 Or. App. 120, 112 P.3d 457 (2005), the court held that Portland Police Bureau records concerning the investigation and discipline of a police officer who killed a civilian during a traffic stop were not exempt from disclosure under this balancing analysis.

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5. Arrest records

ORS 192.345(3) (former ORS 192.501(3)) requires disclosure of arrest records unless there is a “clear need to delay disclosure in the course of a specific investigation, including the need to protect the complaining party or victim.” Such arrest records must be disclosed when the need ceases.

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6. Compilations of criminal histories

There is no statute or case law specifically addressing this issue. Such compilations do not fit the definition of an “arrest record.”

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7. Victims

Under ORS 192.345 (formerly 192.501(3)), the need to protect “the complaining party or victim,” may underpin a “clear need to delay disclosure” of arrest records and reports of crimes. See also ORS 147.115 concerning crime victim compensation records.

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8. Confessions

There is no statutory or case law specifically addressing this issue.

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9. Confidential informants

ORS 192.355(4) (formerly192.502(4)) exempts “[i]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.”

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10. Police techniques

Information compiled in investigations not connected with pending or contemplated prosecution may remain confidential if it would disclose investigative techniques and procedures. See Jensen v. Schiffman, 24 Or. App. 11, 544 P.2d 1048 (1976); Attorney General Manual § I(E)(4)(d).

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11. Mugshots

ORS 163A.225 exempts pictures of juvenile sex offenders from disclosure. There appears to be no other statutory or case law specifically concerning mug shots. ORS 807.115 addresses disclosure of duplicate images of DMV photographs.

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12. Sex offender records

ORS 163A.225 places limits on the information that may be released, concerning first-time sex offenders and juvenile sex offenders, to the sex offender’s name and date of birth, name and zip code, name and telephone number of the supervising contact person; the names of any institutions of higher education that the sex offender attends or works at, and—in the case of non-juvenile first-time offenders—the offender’s physical description and photograph.

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13. Emergency medical services records

ORS 192.345(2) (ORS 192.502(2)) exempts 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.” See also ORS 192.398. Program data concerning emergency medical technicians is regulated by ORS 41.685.

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14. Police video (e.g, body camera footage, dashcam videos)

15. Biometric data (e.g., fingerprints)

16. Arrest/search warrants and supporting affidavits

17. Physical evidence

P. Prison, parole and probation reports

ORS 192.355(5) (formerly ORS 192.502(5)) exempts prison, parole and probation records to the extent that disclosure (1) would interfere with the rehabilitation of a person in custody of the Department of Corrections or would (2) “substantially prejudice or prevent the carrying out” of the Department’s functions, but the exception only applies if the “public interest in confidentiality clearly outweighs the public interest in disclosure.”  See also ORS 192.398.

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Q. Professional licensing records

R. Public utility records

ORS 192.355(28) (formerly 192.502(28)) exempts personally identifiable information about customers of a municipal electric utility or a people’s utility district, as well as certain personal information concerning customers who receive water, sewer, or storm drain services from certain public bodies.

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S. Real estate appraisals, negotiations

1. Appraisals

ORS 192.345(6) (formerly 192.501(6)) conditionally exempts “[i]nformation relating to the appraisal of real estate prior to its acquisition” from disclosure.

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2. Negotiations

There is no statutory or case law specifically addressing this issue.

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3. Transactions

There is no statutory or case law specifically addressing this issue.

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4. Deeds, liens, foreclosures, title history

There is no statutory or case law specifically addressing this issue.

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5. Zoning records

There is no statutory or case law specifically addressing this issue.

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T. School and university records

1. Athletic records

There is no statutory or case law specifically addressing this issue.

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2. Trustee records

There is no statutory or case law specifically addressing this issue.

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3. Student records

ORS 192.345(29) (formerly 192.501(29)) conditionally exempts the e-mail addresses of students who attend state colleges and universities. ORS 192.398 exempts from disclosure student records “required by state or federal law to be exempt from disclosure.”

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4. School foundation/fundraising/donor records

5. Research material or publications

6. Other

U. State guard records

V. Tax records

W. Vital Statistics

1. Birth certificates

Under ORS 432.350, birth records for births occurring within 100 years of the request are exempt from disclosure, though abstracts of such records are made public. There are exceptions for certain family members or a showing of intent to use the information solely for research purposes.

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2. Marriage and divorce

Under ORS 432.350, marriage records for marriages occurring within 50 years of the request are exempt from disclosure, though abstracts of such records are made public. There are exceptions for certain family members, a showing of intent to use the information solely for research purposes, or for a need to determine property rights.

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3. Death certificates

Under ORS 432.350, death records for deaths occurring within 50 years of the request are exempt from disclosure, though abstracts of such records are made public. There are exceptions for certain family members, a showing of intent to use the information solely for research purposes, or for a need to determine property rights.

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4. Infectious disease and health epidemics

ORS 433.008 exempts “[i]nformation obtained by the Oregon Health Authority or a local public health administrator in the course of an investigation of a reportable disease or disease outbreak,” with enumerated exceptions for disclosure to state and federal agencies, health care workers, persons with communicable diseases, and certain others, unless there is “clear and convincing evidence that the release is necessary to avoid an immediate danger to other individuals or to the public.”

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IV. Procedure for obtaining records

A. How to start

1. Who receives a request?

All requests are first directed to the actual custodian of the records in question. Oregon’s review procedures then vary slightly depending upon whether the records in question are held:

a) by a state public body,

b) by a county, city or local public body, or

c) by an elected official.

Appeal from the denial of disclosure of records held by a state public body goes first to the Attorney General. ORS 192.411(formerly ORS 192.450). An appeal concerning county, city or local records goes first to the district attorney for the county in which the records are located. ORS 192.415 (formerly ORS.192.460). Appeals concerning records held by any elected official go directly to circuit court. ORS 192.427 (formerly ORS 192.480).

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2. Does the law cover oral requests?

The Public Records Law is silent on this issue. Of course, a written request will provide better documentation on appeal.

The person designated as the custodian of the public records for a public body is obligated to furnish a reasonable opportunity for inspection and examination during usual business hours. That person may make reasonable rules and regulations necessary for the protection of the records and to prevent interference with the regular discharge of official duties. ORS 192.318 (formerly ORS 192.430).

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3. Required contents of a written request

4. Can the requester choose a format for receiving records?

5. Availability of expedited processing

B. How long to wait

1. Statutory, regulatory or court-set time limits for agency response

The 2017 statutory amendments to the Public Records Law significantly changed the law’s timing requirements. As amended, ORS 192.324 (formerly ORS 192.440) requires a custodian to acknowledge receipt of or complete the public body’s response to a written records request within five business days. ORS 192.329 further requires a public body to complete its response “as soon as practicable and without delay,” ORS 192.329(1), and establishes a general 15‑business day requirement for completing a records request, although that timing is subject to exceptions. ORS 192.329(5).

Under ORS 192.418(2) (formerly ORS 192.465), the failure of an elected official to deny, grant or deny and grant in part a records request is considered a denial of the request, allowing the requestor to seek court review.

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2. Informal telephone inquiry as to status

Not addressed by statute. An inquiry may be useful in establishing that an effective denial has been made, because the public body has exceeded its reasonable opportunity to review and respond.

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3. Is delay recognized as a denial for appeal purposes?

Yes, under the 2017 amendments to the Public Records Law. ORS 192.407(1) provides that a public body’s failure to provide a required response to a records request within the specified time period of ORS 192.329 “shall be treated as a denial of the request,” and is subject to review, unless the public body is able to demonstrate that it was not required to comply under ORS 192.329. In addition, a party may seek review of a public body’s estimated timeframe for complying with a records request, if the requestor believes the timeframe is unreasonable or will result in undue delay of disclosure, ORS 192.407(2), and may further seek review of “any other instance” of failure to comply with ORS 192.329.

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4. Any other recourse to encourage a response

See discussion above regarding ORS 192.407, enacted in 2017, concerning the ability to seek review for noncompliance with timing requirements.

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C. Administrative appeal

Appeal from the denial of disclosure of records held by a state public body goes first to the Attorney General. ORS 192.411(formerly ORS 192.450). An appeal concerning county, city or local records goes first to the district attorney for the county in which the records are located. ORS 192.415 (formerly ORS.192.460). Appeals concerning records held by any elected official go directly to circuit court. ORS 192.427 (formerly ORS 192.480).

Contents of agency appeal letter. The Public Records Law prescribes a form of petition for reviewing a denied public records request. ORS 192.422 (formerly ORS 192.470).

Description of the record. The petition should describe with particularity the records sought.

Need to address fee issues. No.

Plea for quick response. There is no need to make such a plea. Both the Attorney General and a district attorney must rule on the petition within seven days of receipt, or else the petition is deemed denied. ORS 192.418.

Can the request be for future records? It would not appear that a public body could effectively deny a request to inspect records not yet existing, and denial is required for appeal.

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1. Time limit to file an appeal

2. To whom is an appeal directed?

If county, city, or local public bodies, the appeal is directed to the district attorney for the county where the records are located. For requests to health professional regulatory boards, as defined in ORS 676.160, for records “contain[ing] information concerning a licensee or applicant,” the petitioner must first send a copy of the petition by first class mail to the health professional regulatory board, then file the petition with the Attorney General. ORS 192.450(4); Attorney General Guide § (G)(1)(c). Note that decisions by individually elected officials to withhold records are not reviewable by the Attorney General or district attorney but are subject to court review. See ORS 192.480; Attorney General Manual § I(G)(3).

Generally, all denials by state public bodies are directed to the Attorney General. However, see above regarding health professional regulatory boards and elected officials.  There is no state commission or ombudsman for appeals.

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3. Fee issues

There is no need to address fee issues.

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4. Contents of appeal

5. Waiting for a response

Typically, the Attorney General or district attorney has seven days in which to grant or deny the petition in whole or in part. ORS 192.418. However with respect to health regulatory boards, the Attorney General’s office takes the position that the statutes allow fifteen days to respond where an affected licensee has the right to respond to the petition. See Attorney General Manual, § I.G.1.c.

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6. Subsequent remedies

Any subsequent appeal must be taken to court.

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D. Additional dispute resolution procedures

1. Attorney General

2. Ombudsperson

3. Other

E. Court action

1. Who may sue?

Any party dissatisfied with the appeal review may sue. A public body must issue notice of intent to sue within seven days and must institute suit within a subsequent seven days. ORS 192.411(2); ORS 192.415 (formerly ORS 192.450; ORS 192.460).

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2. Priority

Under ORS 192.431(2) (formerly ORS 192.490(2)), proceedings involving the denial of Public Records disclosure requests shall take “precedence on the docket over all other causes” except those “the court considers of greater importance,” and shall be heard and tried at the earliest practical date and expedited in every way.

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3. Pro se

State law does not preclude a pro se litigant.

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4. Issues the court will address

The court will determine the matter de novo. The burden is on the public body to demonstrate the applicability of the exemption and, where applicable, the public interest in nondisclosure. ORS 192.431(1) (formerly ORS 192.490). The court is not only entitled to view the records in chambers but, indeed, should make that examination. Kluge v. Oregon State Bar, 172 Or. App. 452, 19 P.3d 938 (2000).

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a. Denial

Injunctive relief to reverse a denial may be sought. ORS 192.431.

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b. Fees for records

State courts have jurisdiction to review the reasonableness of fees. In Defense of Animals v. OHSU, 199 Or. App. 160, 112 P.3d 336 (2005).

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c. Delays

Under ORS 192.407, enacted in 2017, disputes over a public body’s compliance with the time requirements of ORS 192.329 are subject to administrative review. Generally, the courts have “the same authority with respect to petitions” under ORS 192.407 “as when inspection of a public record is denied.” ORS 192.407(2).

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d. Patterns for future access (declaratory judgment)

Declaratory relief may be sought.

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5. Pleading format

The proceedings are either for injunctive relief or declaratory relief in the circuit court, the trial court of general jurisdiction. See ORS 192.411 and 192.415. The Oregon Uniform Trial Court Rules, as supplemented by local court rules, dictate the nature and form of the pleadings to be used under the Oregon Rules of Civil Procedure. In order to make certain that the litigation is given the priority permitted by statute, the complaint should be captioned to indicate that it is litigation under the Public Records Law.

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6. Time limit for filing suit

There is no specific time limit for filing suit by a requester, although the balancing tests incorporated in many statutory exceptions to disclosure could in some instances be tipped by the timeliness of the request. As above, public bodies must indicate their intention to sue and must begin suit within strict time constraints.

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7. What court?

With respect to state agencies, including any action for injunctive or declaratory relief following an order of the Attorney General, the litigation must be filed in Marion County Circuit Court. In the case of local governmental bodies, including actions following an order by a district attorney, the litigation is to be instituted in the circuit court for the county in which the public body has its legal jurisdiction. Actions following actions by an elected official may be in the local circuit court or in Marion County. If the records are held by a health professional regulatory board, an action may be filed in the circuit court for the county where the records are held. See ORS 192.411, ORS 192.415.

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8. Burden of proof

9. Judicial remedies available

10. Litigation expenses

a. Attorney fees

See above.

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b. Court and litigation costs

See above.

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11. Fines

12. Other penalties

13. Settlement, pros and cons

F. Appealing initial court decisions

1. Appeal routes

In Oregon, an appeal from a circuit court decision in a Public Records case is made exclusively to the Oregon Court of Appeals. If the requester is dissatisfied with the Court of Appeals’ decision, the requester may file a Petition for Review with the Oregon Supreme Court. The Supreme Court has discretion in whether to take petitions.

Attorneys’ Fees. If the requester is successful in either reversing an adverse trial court judgment or in sustaining a trial court judgment requiring disclosure, the requester may also recover reasonable attorneys’ fees on appeal. Again, the requester has no liability for the public body’s fees if the requester is the losing party at the appellate level.

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2. Time limits for filing appeals

As a general matter, an appeal from a circuit court decision must be made within 30 days after the date of entry of the final order or judgment in the trial court proceeding.

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3. Contact of interested amici

The Oregon Court of Appeals has a process for allowing amici curiae to participate. The process for amici petitions and amici participation is set forth under the Oregon Rules of Appellate Procedure.

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G. Addressing government suits against disclosure

Open Meetings

I. Statute - basic application

A. Who may attend?

Under ORS 192.620 and 192.630, the stated policy of the State of Oregon is that decisions of public governing bodies operating in the State of Oregon are arrived at openly. This means that all meetings of public governing bodies shall be open to the public and all persons shall be permitted to attend any meeting, except as otherwise provided by ORS 192.610-192.690. Thus, these statutes draw no distinctions between the media and other members of the public regarding attendance at public meetings, except for executive sessions, discussed infra. Oregon law makes no requirement that one be a citizen, taxpayer, resident or voter to attend a public meeting.

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B. What governments are subject to the law?

All “public bodies” are subject to the Public Meetings Law. Public bodies include “the state, any regional council, county, city or district, or any municipal or public corporation, or any board, department, commission, council, bureau, committee or subcommittee or advisory group or any other agency thereof.” ORS 192.610(4).

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1. State

The state is subject to the Public Meetings Law. See supra.

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2. County

The state is subject to the Public Meetings Law. See supra.

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3. Local or municipal

Local and municipal governments are subject to the Public Meetings Law. See supra.

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C. What bodies are covered by the law?

All “governing bodies” are covered. Governing body “means the members of any public body which consists of two or more members, with the authority to make decisions for or recommendations to a public body on policy or administration.” ORS 192.610(3). See Tri-Cty. Metro. Transp. Dist. of Oregon TriMet v. Amalgamated Transit Union Local 757, 362 Or. 484, 488 (2018) (“The Public Meetings Law regulates the decision-making process of ‘governing bod[ies]’ and ‘public bod[ies].’”).

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1. Executive branch agencies

a. What officials are covered?

All officials who are members of a governing body are covered when a quorum of that body is convened to make a decision or deliberate toward a decision.

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b. Are certain executive functions covered?

No, except as the executive is involved in a meeting of a governing body with a quorum which is making a decision or deliberating toward a meeting.

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c. Are only certain agencies subject to the act?

All agencies are covered except those exempted under ORS 192.690. These exceptions include, for example, deliberations of the State Board of Parole, the State Banking Board, the Psychiatric Security Review Board, state agencies conducting hearings on contested cases under the Oregon Administrative Procedures Act, review by the Workers’ Compensation Board of contested workers’ compensation cases, meetings of state lawyer assistance committees under the Oregon State Bar Act, peer review committees of health care providers, child fatality review teams, and security programs reviewed by the Energy Facility Siting Council.

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2. Legislative bodies

All local legislative bodies are covered by the Public Meetings Law. The law’s applicability to activities of the state Legislative Body is not clear. Or. Const. Art IV, § 14 requires the Legislature’s deliberations to be “open.” The Attorney General has stated that this requirement does not apply to caucuses or closed sessions where permitted under common law or relating to proceedings concerning political party organizational activities.

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3. Courts

All judicial proceedings are exempted from the requirements of the Public Meetings Law. ORS 192.690(1). Under Or. Const. Art. IV § 10; however, court proceedings are open to the public.

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4. Nongovernmental bodies receiving public funds or benefits

These groups are not subject to the Public Meetings Law merely because of their receipt of funds. The question whether such groups become the “functional equivalent” of a public body, see Marks v. McKenzie High School Fact-Finding Team, 319 Or. 451 (1994) (discussing issue in context of public records), may be relevant to this determination, but there is no case law resolving this issue. See Attorney General Manual II.B.1.2.

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5. Nongovernmental groups whose members include governmental officials

These groups are not subject to the law merely because they include governmental officials.

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6. Multi-state or regional bodies

The Attorney General believes these agencies may be subject to the Public Meetings Law if their Oregon members constitute a majority or if they have a committee with a majority of Oregon members that is authorized to make decisions. See Attorney General Manual II.B.3.

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7. Advisory boards and commissions, quasi-governmental entities

Advisory boards, commissions or other groups of a public body qualify as a public body. ORS 192.610(3).

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8. Other bodies to which governmental or public functions are delegated

The definition of “public body” in ORS 192.610 is broadly written to cover various groups, committees, and advisory groups of public bodies themselves, and the law could apply in such circumstances where the delegated body constitutes a governing body.

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9. Appointed as well as elected bodies

The Public Meetings Law does not distinguish between appointed and elected bodies per se.

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D. What constitutes a meeting subject to the law

1. Number that must be present

a. Must a minimum number be present to constitute a "meeting"?

Under ORS 192.610(5) a “meeting” is the convening of a governing body of a public body for which a quorum is required in order to make a decision or deliberate toward a decision on any matter. Therefore, a quorum – typically, a majority of members of the governing body – must be present in order to constitute a meeting. A “governing body” must contain “two or more members.” ORS 192.610(3); Indep Contrs Research Inst v. Dep’t of Admin Servs, 207 Or. App. 78 (2006).

In Tri-Cty. Metro. Transp. Dist. of Oregon TriMet v. Amalgamated Transit Union Local 757, 362 Or. 484, 488 (2018), the Oregon Supreme Court rejected the argument that it was possible to have a governing body without a quorum requirement. Id. at 500 (“In other words, for every organized body, there is some minimum number of members that must participate in order for the body to be competent to transact business. Thus, every organized body has a ‘quorum.’”). The Court further opined that a majority of the governing body was the default quorum requirement for a body, citing ORS 174.130. However, the Court did not expressly decide whether a public body could establish a different quorum.

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b. What effect does absence of a quorum have?

 

The absence of a quorum means that there is no “meeting” under the Public Meetings Law. As a general matter, the law’s requirement for a “meeting” to be open would not apply in such instances.

However, it is possible for a quorum of a governing body to “meet in private,” in violation of ORS 192.630(2), even without there being a “meeting,” as defined in ORS 192.610(5) and subject to ORS 192.630(1). In Tri-Cty. Metro. Transp. Dist. of Oregon TriMet v. Amalgamated Transit Union Local 757, 362 Or. 484, 488 (2018), the Supreme Court confronted a situation in which a public body, TriMet, asserted that it had delegated labor negotiations to a negotiating team, which TriMet conceded to be a governing body, but that TriMet had established no quorum requirement for the governing body. TriMet argued that absent such a quorum requirement, the team’s negotiations would not constitute a “meeting” under ORS 192.610(5). The Court explained that a “meeting” and “to meet in private” are separate concepts under the Public Records Law, and that an agency cannot “shield deliberations and decisions on a given matter from public scrutiny simply by delegating authority over those deliberations and decisions to a governing body and failing to specify a quorum requirement for the governing body to act.” 362 Or. at 497.

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2. Nature of business subject to the law


 

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a. "Information gathering" and "fact-finding" sessions

If the meeting is for the purpose of gathering information to serve as a basis for a subsequent decision, the Public Meetings Law applies. 38 Op. Atty. Gen. 1471 (1977). On-site inspections of projects or programs and attendance at conventions are specifically excluded from the definition of a “meeting” under ORS 192.610(5).

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b. Deliberation toward decisions

Deliberations (e.g., fact finding or “work sessions”) toward decisions are specifically covered by the Public Meetings Law. ORS 192.610(5).

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3. Electronic meetings

a. Conference calls and video/Internet conferencing

If a quorum of a governing body meets, the Public Meetings Law applies. Public meetings may be held via contemporaneous communication means, where all governing body members (and the public) can “listen” by speakers or other devices. ORS 192.670 (2).

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b. E-mail

If a quorum of a governing body is e-mailing about a decision or using email to deliberate toward a decision, the Public Meetings Law applies. Notice and an opportunity for the public to “listen” and “attend” would be required. ORS 192.670(2).

In Handy v. Lane, the Oregon Supreme Court assumed, without deciding, that the Oregon Court of Appeals “correctly held that a quorum of a public body can ‘meet’ by means of seriatim communications if each member of the quorum communicates with the other members for the purpose of deciding or deliberating toward a decision.” 360 Or. 605, 623 (2016), affirming in part and reversing in part Handy v. Lane, 274 Or. App. 644 (2015).

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c. Text messages

The statute does not specifically address text messages. However, if a quorum of a governing body is text messaging about a decision or using text messages to deliberate toward a decision, the Public Meetings Law applies. Notice and an opportunity for the public to “listen” and “attend” would be required. ORS 192.670(2). See Handy v. Lane, supra.

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d. Instant messaging

The statute does not specifically address instant messaging. However, if a quorum of a governing body is instant messaging about a decision or using instant messaging to deliberate toward a decision, the Public Meetings Law applies. Notice and an opportunity for the public to “listen” and “attend” would be required. ORS 192.670(2). See Handy v. Lane, supra.

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e. Social media and online discussion boards

The statute does not specifically address social media or online discussion boards. However, if a quorum of a governing body is using social media or online discussion boards for a decision or using social media or online discussion boards to deliberate toward a decision, the Public Meetings Law applies. Notice and an opportunity for the public to “listen” and “attend” would be required. ORS 192.670(2).

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E. Categories of meetings subject to the law

1. Regular meetings

a. Definition

There is no specific definition of a “regular” meeting under the Public Meetings Law. However, ORS 192.640(1) and (3) distinguish between regular meetings and special meetings. Under this scheme, regular meetings appear to be meetings regularly scheduled with significant advance notice.

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b. Notice

Under ORS 192.640(1) there is no specified time limit for notice of regular meetings, but notice must be “reasonably calculated” to give actual notice to interested persons, including news media, who have requested notice.
Special meetings require at least 24 hours’ notice, unless the minutes describe an emergency justifying the lack of such notice. ORS 192.640(3).
There is no specific posting requirement provided the methods are reasonably calculated to give actual notice.
ORS 192.640(1) specifies that the time and place for the meeting must be specified, and the notice must include a list of the principal subjects anticipated to be considered at the meeting, but public bodies may consider other subjects. In addition, if an executive session is to be held, the notice must state the specific provision of the Public Meetings Law authorizing such an executive session. ORS 192.640(2).
Under the penalties and enforcement section of the Public Meetings Law, ORS 192.680, a court may order equitable relief as appropriate for violation of the law. Although a decision made at an improperly noticed meeting shall not be voided if the public body properly reinstates the decision, there are limitations on the ability to reinstate a decision if a court finds the Public Meetings Law was violated intentionally or by willful misconduct by a quorum of the members of the governing body.
Under ORS 192.685, violators of the Public Meetings Law can be the subject of a complaint to the Oregon Government Ethics Commission, the state’s government ethics tribunal. If a court finds a violation was willful or intentional, it may order reasonable attorneys’ fees paid to a challenger of the meeting. If a court finds that a violation of the Public Meetings Law is the result of the willful conduct of a particular member or members, that member or members will be jointly and severally liable for any attorneys’ fees paid. ORS 192.680-85.

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c. Minutes

Under ORS 192.650(1) sound, video, or digital recording or written minutes are to be compiled for all meetings. A full transcript or tape recording is not required, but the minutes must give a “true reflection” of the items discussed and the views of participants in the discussion. At a minimum, the minutes must contain the following information:

(a) All members of the governing body present;

(b) All motions, proposals, resolutions, orders, ordinances and measures proposed and their disposition;

(c) The results of all votes and, except for public bodies consisting of more than 25 members unless requested by a member of that body, the vote of each member by name;

(d) The substance of any discussion on any matter; and

(e) Subject to ORS 192.410 to 192.505 relating to public records, a reference to any document discussed at the meeting.

ORS 192.650(1).

Minutes are a public record under the Public Records Law, except for minutes of an executive session.

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2. Special or emergency meetings

a. Definition

There is no statutory definition, but it appears this refers to a meeting not regularly scheduled or called on short notice.

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b. Notice requirements

A special meeting may be held on at least 24 hours’ notice. An “actual emergency” special meeting may be held on less than 24 hours’ notice, provided that the minutes for such an emergency meeting must describe the emergency justifying less than 24 hours’ notice. ORS 192.640(3).
Notice of a special meeting must be given to the parties who would receive notice to a regular meeting. The notice must be reasonably calculated to provide actual notice.
Penalties are the same as for failure to provide notice to a regular meeting.

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c. Minutes

Minutes requirements for special and emergency meetings are the same as for regular meetings. ORS 192.650. However, if a special or emergency meeting is held without at least 24 hours’ notice, the minutes of the meeting must describe the emergency justifying less than 24 hours’ notice. ORS 192.640.

Minutes generally are a public record under the Public Records Law, except for minutes of an executive session under certain circumstances. ORS 192.650(1) further provides that minutes and recordings “shall be made available to the public within a reasonable time after the meeting.”

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3. Closed meetings or executive sessions

a. Definition

Under ORS 192.610(2) an executive session is a meeting or part of a meeting of a governing body that is closed to certain persons for deliberations on certain matters. Because the stated policy of the Public Meetings Law under ORS 192.620 is to require all meetings to be open to the public, a specific exemption from the requirements of openness must be present to justify an executive session. Those exemptions are set forth in ORS 192.660.

Who may attend executive sessions? Members of the public are not entitled to attend executive sessions, unless specifically permitted by the public body. Representatives of the news media are allowed to attend all executive sessions except for labor negotiations, sessions considering the expulsion of an elementary or secondary school student, and those sessions concerning litigation where the news media representative or his or her employer is a party to that litigation. ORS 192.660(4). The term “representatives of the news media” is not defined by the statute but has been interpreted by the Attorney General to include “news gathering representatives,” meaning reporters of news gathering media which “ordinarily report” activities of the public body. 39 Op. Atty. Gen. 600 (1979). In 2015, the Oregon Legislature amended ORS 192.660 to expressly provide that the Oregon Government Ethics Commission “may not adopt rules that establish what entities are considered representatives of the news media that are entitled to attend executive sessions.” ORS 192.660(10).

What material discussed at the executive session is privileged? A governing body may require that the legitimate subjects of an executive session not be disclosed outside the executive session. ORS 192.660(4). A public body’s belief that a reporter has violated executive session confidentiality is not justification for future exclusion of the reporter from executive sessions. If a member of the governing body discusses outside the executive session subjects covered in the executive session, the executive session confidentiality requirement does not apply. If the reporter develops the same information discussed at the executive session through independent means, this information may be reported even though it is also the subject of an executive session. If the executive session deals with matters which are not described by the executive session statute, such discussions are fair game and may be disclosed publicly even though the governing body may believe that it is conducting a confidential executive session discussion.

Action in executive session. ORS 192.660(6) makes clear that no final action or final decision may be taken during an executive session. All such actions must be made in a public session.

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b. Notice requirements

The notice requirements for an executive session are generally the same as those for a non-executive session meeting. However, for an executive session, the notice must also provide the statutory justification for holding the executive session. ORS 192.640.
ORS 192.640(2) specifies that if an executive session is to be the exclusive basis of a meeting, the notice is to state the specific provision authorizing the executive session. While the statute requires advance notice of executive session matters, there are instances where the executive session is called during the course of a regular meeting without previous notice of the executive session. The law allows such a practice. ORS 192.660(1). The statutory basis for an executive session called during a regular meeting must be specified before the executive session begins, however.
The penalties and remedies are the same as those for regular meetings.

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c. Minutes

Minutes of an executive session are to be in the same form as minutes for a non-executive session. ORS 192.650(2).
Executive session minutes are not a disclosable public record if disclosure would be inconsistent with the purpose for which the executive session was held. They need not be transcribed if an audio tape of the executive session exists. ORS 192.650(2).

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d. Requirement to meet in public before closing meeting

None. An executive session may be the sole agenda item for a meeting of a governing body.

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e. Requirement to state statutory authority for closing meetings before closure

An applicable exemption must be cited for an executive session which is either scheduled in advance or called during the course of a meeting. ORS 192.640(2), ORS 192.660(1).

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f. Tape recording requirements

The minutes of executive sessions shall be kept and an audio record may serve as the source of such minutes, without the necessity of transcription. ORS 192.650(2).

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F. Recording/broadcast of meetings

1. Sound recordings allowed

There are no statutory provisions dealing with private recordings of the proceedings. The Attorney General has determined that members of the public cannot be prevented from “unobtrusively recording” proceedings. 38 Op. Atty. Gen. 50 (1976). The presiding officer of the governing body has the authority to impose reasonable restrictions for the efficient and orderly conduct of a meeting, however.

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2. Photographic recordings allowed

The statute does not deal with this subject.

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G. Access to meeting materials, reports and agendas

H. Are there sanctions for noncompliance?

The penalties for any noncompliance with the Public Meetings Law have been discussed above. No other sanctions are specified.

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A. Exemptions in the open meetings statute

1. Character of exemptions

Under ORS 192.660, closures of public meetings for executive session purposes are limited to specific situations.
There are certain specified agencies and types of proceedings which are exempt from all requirements of the Public Meetings Law, pursuant to ORS 192.690. Open meetings are required unless a specific exemption is applicable.
If permitted, closure decisions are generally discretionary with the governing body except in personnel and labor negotiation matters.

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2. Description of each exemption

Other than the exceptions to the coverage of the Public Meetings Law under ORS 192.690, to which none of the requirements of the Public Meetings Law apply, the following are the exclusive “exemptions” to the Public Meetings Law pursuant to ORS 192.660(1). Technically, these situations are not exemptions from the process and procedures of the law but, rather, justifications permitting the use of an executive session for the conduct of the public business. These “exemptions” are:

(a) Consideration of employment of a public officer, employee, staff member or agent. This exemption does not apply to the filling of a vacancy in an elective office; the filling of a vacancy on any public committee, commission or advisory group; the consideration of general employment policies; or the employment of the chief executive officer, other public officers, employees and staff members of a public body, unless the vacancy in the position has been advertised and regular procedures for hiring have been adopted by the public body with an opportunity for public participation in the filling of such position. All standards, criteria and policy directives used in hiring a chief executive officer must be adopted by the governing body in open session with an opportunity for public comment. ORS 192.660(1)(a).

(b) Consideration of the dismissal or disciplining of, or complaints or charges against, a public officer, employee, staff member or individual agent unless the subject of the disciplinary proceeding requests an open hearing. ORS 192.660(1)(b).

(c) Consideration of matters pertaining to medical staff functions of a public hospital including clinical committees, peer review committees, and other medical competency matters. ORS 192.660(1)(c).

(d) To conduct deliberations with the persons designated by the governing body to carry on labor negotiations. ORS 192.660(1)(d). This executive session provision applies to discussions between the governing body and its labor negotiator. It is important to note that where a retained negotiator is employed by the governing body, as opposed to delegating such functions to a subcommittee of the governing body, the retained negotiator is neither a public body nor a governing body for purpose of the coverage of the Public Meetings Law. Thus, the negotiator’s activities are outside coverage of the law.

(e) To conduct deliberations with persons designated by the governing body to negotiate real property transactions. ORS 192.660(1)(e). This is very similar to the exemption under ORS 192.660(1)(d).

(f) To consider information or records that are exempt by law from public inspection. ORS 192.660(1)(f). This provision allows the governing body to discuss records which are exempt from disclosure under the Open Records Law as well as under other statutes. However, merely because certain records are discussed in executive session does not mean that those records are automatically exempt from disclosure. While the governing body may urge that executive session matters are not subject to disclosure, this only applies to matters which are properly the subject of an executive session. Any records that are discussed may be subject to disclosure if they are not independently subject to a records exemption.

(g) To consider preliminary negotiations involving trade or commerce in which the governing body is in competition with governing bodies in other states or nations. ORS 192.660(1)(g). The key word in this subsection is “preliminary” negotiations.

(h) To consult with counsel concerning the legal rights and duties of a public body with regard to current litigation or litigation likely to be filed. ORS 192.660(1)(h). This executive session provision is perhaps the most hotly disputed in the Open Meetings statute. The definition of litigation “likely to be filed” is often a subjective determination by the public body (or more likely, its legal counsel).

(i) To review and evaluate the employment-related performance of public employees. ORS 192.660(1)(i). This provision has two important limitations to it. First, the employee has the absolute right to have an open hearing. Second, the executive session may not be used for any general evaluation of goals or objectives or generalized personnel policies.

(j) To carry on negotiations for public investments, provided the other party to the negotiations is a private person or business. ORS 192.660(1)(j).

(k) To consider matters relating to school safety or a plan that responds to safety threats made toward a school.

(l) To consider information obtained as part of an investigation of licensee or applicant conduct, if the governing body is a health professional regulatory board. ORS 192.660(1)(k).

(m) To consider information obtained as part of an investigation of registrant or applicant conduct, if the governing body is the State Landscape Architect Board. ORS 192.660(1)(L).

(n) To discuss information about review or approval of programs relating to the security of energy, radioactive material, hazardous substances, sewage, water, telecommunication systems and data transmissions as described in the statute. ORS 192.660(1)(m).

Labor negotiations must be conducted in open session unless both sides request executive sessions. Subsequent closed negotiating sessions can continue without further public notice. ORS 192.660(3). Labor negotiations conducted by an individual negotiator rather than members of the governing body are not subject to the Public Meetings Law. Southwestern Oregon Publishing Co. v. Southwest Oregon Community College District, 28 Or. App. 383, 559 P.2d 1289 (1977). However, the Attorney General has stated in 42 Op. Atty. Gen. 362 (1982), that if labor negotiations are not carried on with a recognized bargaining representative, “negotiations” do not occur and an executive session justification does not exist.

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B. Any other statutory requirements for closed or open meetings

None.

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C. Court mandated opening, closing

There are no provisions for this kind of required closure of public meetings in Oregon.

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III. Meeting categories - open or closed

A. Adjudications by administrative bodies

Under ORS 192.690(1) state agencies conducting hearings on contested cases under the Oregon Administrative Procedures Act or in cases of Workers’ Compensation Board reviews are outside the Public Meetings Law. Therefore, both the hearing and the adjudication are closed.

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1. Deliberations closed, but not fact-finding

See above.

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2. Only certain adjudications closed, i.e. under certain statutes

See above.

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B. Budget sessions

These matters are conducted in public session. For many public bodies, a budget committee separate from the governing body deals with the preliminary discussions about the budget. Such committees are generally subject to the Public Meetings Law as advisory committees to the governing body.

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C. Business and industry relations

Generally these matters are heard in public session. Discussions falling under ORS 192.660(1)(e) (negotiations involving real property transactions), ORS 192.660(1)(g) (preliminary negotiations involving trade or commerce in which governing body is in competition with other governing bodies) and ORS 192.660(1)(j) (negotiations with private persons or businesses for public investments) are subjects for executive session deliberations.
The deliberations of the State Banking Board are not subject to the Public Meetings Law. ORS 192.690(1).

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D. Federal programs

There is no exemption for discussion of federal programs by governing bodies.

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E. Financial data of public bodies

Other than public investments under ORS 192.660(1)(j), such matters are subject to the Public Records Law.

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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

If these matters are reduced to written form and qualify for a Public Records exemption, they may properly be considered in executive session. ORS 192.660(2)(f).

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G. Gifts, trusts and honorary degrees

If any such matter involves records subject to exemption, they may be discussed in executive session.

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H. Grand jury testimony by public employees

The Public Meetings Law does not apply to judicial proceedings.

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I. Licensing examinations

These matters would only rarely be the subject of a public meeting because the governing body is unlikely to vote on passage or failure of an applicant’s examination performance. To the extent that licensing matters are voted upon by agencies (e.g., liquor licensing), such discussion is conducted in public session unless it is a contested case hearing by an administrative agency exempt under ORS 192.690(1).

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J. Litigation, pending litigation or other attorney-client privileges

An executive session may be held to consult with counsel concerning the legal rights and duties of a public body with regard to current litigation or litigation likely to be filed. ORS 192.660(2)(h).

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K. Negotiations and collective bargaining of public employees

Executive sessions may be held to conduct deliberations with persons designated by the governing body to carry on labor negotiations, pursuant to ORS 192.660(2)(d) and ORS 192.660(3).

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1. Any sessions regarding collective bargaining

See above.

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2. Only those between the public employees and the public body

See above.

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L. Parole board meetings, or meetings involving parole board decisions

These are specifically exempt from requirements of the Public Meetings Law. ORS 192.690(1).

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M. Patients, discussions on individual patients

These may be exempt from Public Meetings Law entirely under ORS 192.690 or involve exempt public records, which permits an executive session.

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N. Personnel matters

An executive session may be justified for discussions concerning employment, discipline, and dismissal of public employees under ORS 192.660(2)(a)(b) and (i).

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1. Interviews for public employment

An executive session may be held.

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2. Disciplinary matters, performance or ethics of public employees

An executive session may be held.

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3. Dismissal, considering dismissal of public employees

An executive session may be held.

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O. Real estate negotiations

Negotiations concerning real property transactions may involve exempt public records and therefore could be conducted in an executive session, under ORS 192.660(1)(f).

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P. Security, national and/or state, of buildings, personnel or other

To the extent that such matters involve exempt public records, these matters may be discussed in executive session.

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Q. Students, discussions on individual students

Student discipline may be the subject of an executive session under ORS 192.660(4) from which the media may be excluded.

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IV. Procedure for asserting right of access

A. When to challenge

The statute is silent on this issue. The basic procedure for challenging closure of meetings is through litigation, which can result in future direction to the governing body.

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1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

No.

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2. When barred from attending

The public cannot be barred unless an appropriate executive session has been called. Unless there is a statutory basis under ORS 192.660(4) or (5), representatives of the media may not be barred.

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3. To set aside decision

ORS 192.680(1) makes decisions in violation of the act voidable, subject to reinstatement at a properly conducted meeting. Under ORS 192.680(3), however, a decision will be voided if the court finds it to be the result of intentional disregard of the act or willful misconduct by a quorum of members.

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4. For ruling on future meetings

Yes, the court may rule on whether future meetings must comply with the statute.

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5. Other

B. How to start

1. Where to ask for ruling

Under the Oregon Public Meetings Law, there is no administrative process for an informal determination as to proper use of executive session or other kinds of public meetings questions. The Attorney General is of assistance but does not have the statutorily delegated powers which are found in the Public Records Law. A ruling must be sought in circuit court.

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a. Administrative forum

None.
Complaints concerning violations of the executive session requirements can be made to the Oregon Government Ethics Commission — the state ethics agency. ORS 192.685.

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b. State attorney general

A challenge must be brought in circuit court. ORS 192.680.

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c. Court

A challenge must be brought in circuit court. ORS 192.680.

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2. Applicable time limits

Any challenge must be brought within 60 days. ORS 192.680(5).

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3. Contents of request for ruling

None specified.

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4. How long should you wait for a response

There is no informal procedure. A challenge must be filed in court within 60 days. ORS 192.680(5).

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5. Are subsequent or concurrent measures (formal or informal) available?

Not addressed.

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C. Court review of administrative decision

1. Who may sue?

Under ORS 192.680(2) any person affected by a decision of a governing body may commence litigation over public meetings violations.

One word of caution: a person bringing suit under the Public Meetings Law risks the potential for a defendant public official or government body responding by filing a Special Motion to Strike under Oregon’s “anti-SLAPP” law, ORS 31.150 et seq. If a defendant’s anti-SLAPP motion is successful, the defendant will be entitled to recovery of reasonable attorneys’ fees and costs.

It would seem safe to presume that it was not the Oregon Legislature’s intent in enacting an anti-
“Strategic Lawsuits Against Public Participation” to discourage citizens from using authorized court procedures to seek greater access to government meetings.  But that may be the effect of how the special motion to strike procedure was used in the trial court in Handy v. Lane, where the trial court granted the defendants’ anti-SLAPP motion to dismiss the claims brought under the Public Meetings Law. See Handy v. Lane, 360 Or. 605 (2016). Although the Oregon Supreme Court’s subsequent decision in this case noted that it was not specifically deciding the applicability of ORS 31.150 to the specific issue on review, see 360 Or. at 616 and n. 8, the possible applicability of ORS 31.150 in future cases should be considered.

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2. Will the court give priority to the pleading?

No statutory requirement.

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3. Pro se possibility, advisability

While it is possible for a person affected by a public meetings violation to act pro se, it may not be advisable in circuit court.

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4. What issues will the court address?

a. Open the meeting

A court might order future meetings to be open.

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b. Invalidate the decision

Simple violations may be rectified by reinstatement of the decision, as described in ORS 192.680(1). A decision shall be voided if the violation was the result of intentional disregard of the law or willful misconduct by a quorum of the governing body’s members. ORS 192.680(3).

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c. Order future meetings open

Not addressed.

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5. Pleading format

Pursuant to the Oregon Rules of Civil Procedure, the Oregon Uniform Trial Court Rules and any local trial court rules.

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6. Time limit for filing suit

There is a 60-day time limit for filing public meetings litigation.

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7. What court?

Public meetings disputes are to be commenced in the circuit court of the county in which the governing body ordinarily meets. ORS 192.680(2).

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8. Judicial remedies available

Under ORS 192.680(3) the court may order such “equitable relief” as it deems appropriate.

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9. Availability of court costs and attorney's fees

The Public Meetings Law makes an award of attorneys’ fees generally discretionary with the court. ORS 192.680(3). If the court finds that the Public Meetings Law violation was a result of “willful misconduct” by any member of the governing body, that member shall be personally liable to the governing body or public body for attorneys’ fees paid, if such fees are awarded by the court. ORS 192.680(2).

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10. Fines

Fines may be imposed by the Oregon Government Ethics Commission. ORS 192.685(1).

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11. Other penalties

Not specified.

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D. Appealing initial court decisions

1. Appeal routes

Appeal is to the Oregon Court of Appeals.

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2. Time limits for filing appeals

An appeal from a circuit court decision must be made within 30 days after entry of judgment.

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3. Contact of interested amici

As indicated in the sections dealing with the Open Records Law, amici curiae are permitted in Oregon Appellate Court proceedings but must follow the appropriate procedure for obtaining amicus status.

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V. Asserting a right to comment

A. Is there a right to participate in public meetings?

No, except perhaps removal or citation under criminal law, if applicable.

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B. Must a commenter give notice of intentions to comment?

No, unless a sign-up mechanism is utilized.

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C. Can a public body limit comment?

Yes, reasonable time limits and opportunities can be established.

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D. How can a participant assert rights to comment?

By so indicating to the meeting chair, often by signing a speaker’s card or attendance sheet.

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E. Are there sanctions for unapproved comment?

Yes, potential removal and arrest for disruption.

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Appendix