PUBLIC RECORDS LAW ORS 192 311 to 192

PUBLIC RECORDS LAW ORS 192. 311 to 192. 478 1

2 What is a public records request? “Every person has a right to inspect any public record of a public body in this state, except as otherwise expressly provided in ORS 192. 338, 192. 345, and 192. 355. ” ORS 192. 314(1)

3 Who can make it? “any natural person, corporation, partnership, firm, association or member or committee of the Legislative assembly. ”

4 What is a public record? A document that: Contains information regarding government business Is prepared, owned, used or retained by government Can be in any form – electronic or paper

5 What is a public body? Every state officer, agency, department, division, bureau, board and commission; every county and city governing body, school district, municipal corporation, and any board, department, commission, council, or agency thereof; and any other public agency of this state.

6 What are the requester’s obligations? Request can be in any form. Should identify the records sought. If your policy for making requests is publicly available as required by ORS 192. 324(7) it is proper to ask that the request be resubmitted in compliance with the policy.

7 Quick Quiz Which of the following are public records under ORS? The work-related emails of a Dept. of Corrections warden Photographs of a workplace accident taken by an Oregon Occupational Health and Safety Administration inspector Personal photographs stored in the harddrive of a city employee’s work computer Text messages regarding a proposed new policy exchanged between city officials on their work cell phones An email discussion between two city employees, both using their personal email accounts, discussing a potential city budget decision A record that could have been destroyed three years per the Archives record retention policy, but was accidentally retained The personal medical bills of a county employee which he was storing in his work office

8 What are the deadlines? Must acknowledge the request within 5 business days. Does not include Saturdays, Sundays, or holidays Must complete the response to the request in 15 business days, or provide a reasonable estimated date of completion. Completing a response to a request includes providing all nonexempt records and citing any exemptions applied (or, if the record isn’t yours, inform the requester that you are not the custodian of the record)

9 What fees can you charge? Must be reasonable Can only recoup cost of providing records. Actual cost includes staff and supervisor time for gathering records, segregating out exempt material, and copying. Includes attorney time spent reviewing the records and redacting or segregating exempt material. Does not include attorney time spent determining how the public records law applies. Public bodies are strongly encouraged to adopt DAS’ proposed statewide policy on fees, available at: http: //www. oregon. gov/OBMI/docs/DASstatewide-policy-on-public-records-requests. pdf

What fees can you charge? 10

11 What fees can you charge? Many public bodies generally waive the first thirty minutes of staff time for all public records requests Further waiver/reduction is available where making the record available primarily benefits the public. Agency has discretion to grant or deny waiver requests, though it must act reasonably.

12 If you are charging fees Must provide advance notice and receive requester’s authorization to proceed if estimated fee exceeds $25. May require advance payment of estimated fees.

13 Discussion: Fee Waivers/Reduction Would you waive or reduce fees? Why or why not? A reporter for the Oregonian who has made a public records request to the Oregon Health Authority for email communications regarding Salem’s recent water crisis A member of the public who has been the victim of police violence and is now requesting the completed Internal Affairs investigation An attorney at a small plaintiff’s side law firm who is seeking a fatality investigation file from the Oregon Occupational Health and Safety Administration for use in a wrongful death case What about a request from the Defendant company in that wrongful death action?

14 Public Records Policy Required by ORS 192. 324(7) Must be publicly available Recommended to be on your website Must explain how the agency accepts requests and identify the name and address of a person to whom requests may be sent (i. e. , probably the records officer) Must list “amounts of and the manner of calculating fees” for records

15 Example: Public Records Policy

16 Exemptions from Disclosure Listed in ORS 192. 345 Records Exempt Unless the Public Interest Requires Disclosure ORS 192. 355 Each includes its own balancing test All other Oregon statutes that make information confidential or privileged, and any federal statutes or regulations that prohibit disclosure of information Exemptions are not designed to protect public bodies from embarrassment or shield them from having their decisions scrutinized

ORS 192. 345 17 • • • Balancing test: balance confidentiality interests vs. public interest in disclosure Presumption is always in favor of disclosure Long list of record types, in ORS 192. 345, including: • • Records Pertaining to Litigation Trade secrets Criminal Investigatory Information Personnel Discipline Information

18 ORS 192. 345 What is a “public interest” in disclosure? Information that facilitates public understanding of how government business is conducted Of value to the public at large, not to a particular person at a particular time Court of Appeals: if a government action attracts significant attention or controversy, that may suggest a heightened public interest

ORS 192. 355 19 • • • No blanket balancing test, but these exemptions include individual balancing tests Sometimes burden is on government body, sometimes on requester Includes: • • • Internal advisory communications Personal information Public employee information Confidential submissions “Catchall” provisions

Catchall Provisions 20 Disclosure prohibited by federal law or regulation. ORS 192. 355(8) Must be able to point to a specific federal law or regulation which prohibits disclosure (ie: regulation by Social Security Administration re: SSA disability programs records, FDA regulations prohibiting disclosure of FDA investigation reports) Disclosure prohibited, restricted or otherwise made confidential or privileged under Oregon law. ORS 192. 355(9) Exempt to the extent provided in the specific statute (ie: most medical and psychiatric records per ORS 179. 505; attorney client privilege ORS 40. 255) Transferred Records. ORS 192. 355(10) “Public records…furnished by the public body originally compiling, preparing, or receiving them to any other public officer or public body in connection with performance of the duties of the recipient, if the considerations originally giving rise to the confidential or exempt nature of the public records or information remain applicable. ” Applies if public body is a custodian of the records – a public body mandated, directly or indirectly, to create, maintain, care for or control a public record If public body isn’t a custodian, it is merely an agent and there is no responsibility to permit inspection or copying of records unless they are not otherwise available Public body should then refer the public records request to a custodian agency

21 Exceptions to Exemptions ORS 192. 390: Records More than 25 Years Old Are Not Exempt from Disclosure Except for: Medical Records Sealed Records Custody Records Student Records

22 Where can I find a full list of exemptions? Attorney General’s website: https: //justice. oregon. gov/Public. Records. Exemp tions/

What if there is a disagreement over 23 public records? Alternative Dispute Resolution through the Office of the Public Records Advocate Formalized review of denial of request or fee issues: Records of state agency or non-elected official • Attorney General review • Appeal to Circuit Court Records of Elected Official • Direct appeal to Circuit Court Local governments and non-elected officials • District Attorney review • Appeal to Circuit Court

Attorney General & District Attorney 24 Review Requester petitions Attorney General or District Attorney Office Attorney General/District Attorney must act within seven days of request Attorney General/District Attorney can inspect documents and can order release or uphold agency withholding Public Body bears burden of proof

25 Judicial Review Public body or requester may appeal Attorney General order Public body must comply or give notice of appeal within seven days No similar time limit on requester Burden remains on public body If requester prevails, requester may be granted attorney’s fees & costs

26 Office of the Public Records Advocate 3 statutory duties: Provide facilitated dispute resolution services Requesters and state agencies, if requested by either party Requesters and cities, if both parties want facilitated dispute resolution Providing training and advice on public records laws To government bodies To public (optional) Lead the Public Records Advisory Council Tasked with making proposals for changes in law and policy that will improve transparency A diverse set of stakeholders – composition set by statute

27 Communication Recommendations Communicate early and often When it doubt, pick up the phone Use de-escalation strategies Look for creative solutions

28 Feedback? What would be most useful to requesters/agencies? What are the most common issues that you see with records requests? What resources should we include on our website? What should we include in our trainings? How can we better reach necessary constituents? What changes should be made in the public records law or its implementation?

29 Advice? Facilitated Dispute Resolution Request? Feedback? Contact: ginger. mccall@oregon. gov 503 -378 -5228 http: //sos. oregon. gov/publicrecords/Pages/default. aspx