Public Records and Meetings Law

Public Records and Public Records and Meetings LawMeetings Law

Kevin NeelyKevin NeelyOregon Department of Oregon Department of JusticeJustice

Public RecordsPublic Records What is a public body? ORS 192.410(3)What is a public body? ORS 192.410(3)

““Public body” includes every state officer, Public body” includes every state officer, agency, department, division, bureau, agency, department, division, bureau, board and commission; every county and board and commission; every county and city governing body, school district, special city governing body, school district, special district, municipal corporation, and any district, municipal corporation, and any board, department, commission, council, board, department, commission, council, or agency thereof; and any other public or agency thereof; and any other public agency of this state. agency of this state.

Public RecordsPublic Records What is a public record? ORS What is a public record? ORS

192.410(4)192.410(4) ““Public record” includes any writing Public record” includes any writing

containing information relating to the containing information relating to the conduct of the public’s business, conduct of the public’s business, including but not limited to court including but not limited to court records, mortgages, and deed records, records, mortgages, and deed records, prepared, owned, used or retained by a prepared, owned, used or retained by a public body regardless of physical form public body regardless of physical form or characteristics.or characteristics.

Public RecordsPublic Records What is a public record? ORS What is a public record? ORS

192.410(6)192.410(6) ““Writing” means handwriting, Writing” means handwriting,

typewriting, printing, photographing and typewriting, printing, photographing and every means of recording, including every means of recording, including letters, words, pictures, sounds, or letters, words, pictures, sounds, or symbols, or combination thereof, and all symbols, or combination thereof, and all papers, maps, files, facsimiles or papers, maps, files, facsimiles or electronic recordings. electronic recordings.

Public RecordsPublic Records Requesting a public recordRequesting a public record

Contact the records custodianContact the records custodian A public body mandated, directly or A public body mandated, directly or

indirectly, to create, maintain, care for or indirectly, to create, maintain, care for or control a public record. “Custodian” does control a public record. “Custodian” does not include a public body that has not include a public body that has custody of a public record as an agent of custody of a public record as an agent of another public body that is the custodian another public body that is the custodian unless the public record is not otherwise unless the public record is not otherwise available. available.


Submit a requestSubmit a request The custodian of the records may adopt The custodian of the records may adopt

reasonable rules necessary for the reasonable rules necessary for the protection of the records and to prevent protection of the records and to prevent interference with the regular discharge of interference with the regular discharge of duties of the custodian. duties of the custodian.

The public body may establish fees The public body may establish fees reasonably calculated to reimburse it for reasonably calculated to reimburse it for its actual cost in making such records its actual cost in making such records available.available.


www.open-oregon.comwww.open-oregon.com

Public RecordsPublic Records The public body’s responsibilityThe public body’s responsibility

Furnish proper and reasonable Furnish proper and reasonable opportunities for inspection and opportunities for inspection and examination of the records in the office examination of the records in the office of the custodian and reasonable of the custodian and reasonable facilities for making memoranda or facilities for making memoranda or abstracts therefrom, during the usual abstracts therefrom, during the usual business hours, to all persons having business hours, to all persons having occasion to make examination of them. occasion to make examination of them.

Public RecordsPublic Records The public body’s responsibilityThe public body’s responsibility

If the public record is maintained in If the public record is maintained in machine readable or electronic form, the machine readable or electronic form, the custodian shall furnish proper and custodian shall furnish proper and reasonable opportunity to assure reasonable opportunity to assure access.access.

Custodian must respond in a Custodian must respond in a “reasonable” amount of time.“reasonable” amount of time.

Public RecordsPublic Records Preparing the public body for a Preparing the public body for a

requestrequest Develop an agency protocolDevelop an agency protocol Centralize responseCentralize response Train all employees in public records lawTrain all employees in public records law Mark confidential or draft documentsMark confidential or draft documents Facilitate PR searches through filing Facilitate PR searches through filing

systems and electronic recordkeepingsystems and electronic recordkeeping

Public RecordsPublic Records Responding to the requestResponding to the request

Provide the requestor with a time frame Provide the requestor with a time frame and describe the processand describe the process

Talk to the managerTalk to the manager Talk to the agency attorney if necessaryTalk to the agency attorney if necessary Determine the possible costDetermine the possible cost If cost is over $25, provide written If cost is over $25, provide written

notice to the requestornotice to the requestor


Search for recordsSearch for records Review for exempt materialReview for exempt material Redact as necessaryRedact as necessary Provide access to requestorProvide access to requestor


Public body is not required to create a Public body is not required to create a new recordnew record

Public body cannot charge for attorney Public body cannot charge for attorney time spent determining if the record is time spent determining if the record is exempt from disclosureexempt from disclosure

Attorney time required to redact Attorney time required to redact documents can be recovered from the documents can be recovered from the requestorrequestor

Public RecordsPublic Records Public records petitionsPublic records petitions

Where do I send it?Where do I send it? Attorney GeneralAttorney General

State agenciesState agencies State boardsState boards State commissionsState commissions


Where do I send it?Where do I send it? District AttorneyDistrict Attorney

CityCity CountyCounty School districtsSchool districts Special districtsSpecial districts


Where do I send it?Where do I send it? Independently elected officials are not Independently elected officials are not

subject to public records petitions (ORS subject to public records petitions (ORS 192.465)192.465)

Public RecordsPublic Records Public records petitionsPublic records petitions How is the request handled?How is the request handled? The basicsThe basics

AG or DA has seven daysAG or DA has seven days No provision for recovery of costsNo provision for recovery of costs

Public RecordsPublic Records Public records petitionsPublic records petitions What if the AG is wrong?What if the AG is wrong?

Declaratory actionDeclaratory action Attorney fees availableAttorney fees available Legislative actionLegislative action

Public RecordsPublic Records The exemptions (ORS 192.501 & The exemptions (ORS 192.501 &

192.502)192.502) Conditional exemptionsConditional exemptions The balancing testThe balancing test

Public RecordsPublic Records The exemptions (ORS 192.501 & The exemptions (ORS 192.501 &

192.502)192.502) Unconditional exemptionsUnconditional exemptions No balancing test requiredNo balancing test required

Advisory communicationsAdvisory communications Personal informationPersonal information Information submitted in confidenceInformation submitted in confidence Records confidential elsewhere in lawRecords confidential elsewhere in law Many other exemptionsMany other exemptions

Public RecordsPublic Records The exemptionsThe exemptions

Key law enforcement exemptionsKey law enforcement exemptions


Criminal investigatory material Criminal investigatory material ORS 192.501(3)ORS 192.501(3)

Covers all information “compiled for Covers all information “compiled for criminal law purposes.”criminal law purposes.”

Exemption does not expire when litigation Exemption does not expire when litigation is completed or abandoned.is completed or abandoned.



If challenged, public body must demonstrate If challenged, public body must demonstrate that disclosure would:that disclosure would:

1.1. Interfere with law enforcement proceedingsInterfere with law enforcement proceedings2.2. Deprive a person of right to a fair trialDeprive a person of right to a fair trial3.3. Constitute an unwarranted invasion of privacyConstitute an unwarranted invasion of privacy4.4. Compromise a confidential sourceCompromise a confidential source



If challenged, public body must If challenged, public body must demonstrate that disclosure would:demonstrate that disclosure would:

5.5. Compromise investigative techniques or Compromise investigative techniques or procedures, orprocedures, or

6.6. Endanger the live or physical safety of law Endanger the live or physical safety of law enforcement personnel.enforcement personnel.


Arrest recordsArrest records Treated differently than other criminal Treated differently than other criminal

investigatory materialinvestigatory material Information must be disclosed unless there Information must be disclosed unless there

is a is a clear need to delay disclosureclear need to delay disclosure.. Law provides a non-exclusive list of Law provides a non-exclusive list of

information contained in arrest records:information contained in arrest records:


Arrest recordsArrest records Law provides a non-exclusive list of Law provides a non-exclusive list of

information contained in arrest records:information contained in arrest records: Name, age, residence, employment, marital Name, age, residence, employment, marital

status and similar biographical informationstatus and similar biographical information OffenseOffense Conditions of releaseConditions of release Identity and biographical information of Identity and biographical information of

complainant and victim (except child abuse)complainant and victim (except child abuse)


Arrest recordsArrest records Law provides a non-exclusive list of Law provides a non-exclusive list of

information contained in arrest records:information contained in arrest records: Identity of investigating and arresting agencyIdentity of investigating and arresting agency Length of investigationLength of investigation Time, place, etc. of arrest, andTime, place, etc. of arrest, and Information necessary to enlist public assistance Information necessary to enlist public assistance

in apprehending other fugitives.in apprehending other fugitives.


Juvenile recordsJuvenile records ““Arrest record” term does not apply to Arrest record” term does not apply to

juvenile records.juvenile records. Covered by ORS 419A.255(1), (5), (6) and Covered by ORS 419A.255(1), (5), (6) and

ORS 419A.239(2)ORS 419A.239(2)


Juvenile recordsJuvenile records ORS 419A.255(1)ORS 419A.255(1) ““The record of the case shall be withheld The record of the case shall be withheld

from public inspection but is open to from public inspection but is open to inspection by the child, ward, youth, youth inspection by the child, ward, youth, youth offender, parent, guardian, court appointed offender, parent, guardian, court appointed special advocate, surrogate or a person special advocate, surrogate or a person allowed to intervene in a proceeding allowed to intervene in a proceeding involving the child, ward, youth or youth involving the child, ward, youth or youth offender, and their attorneys.”offender, and their attorneys.”


Juvenile recordsJuvenile records ORS 419A.255(5)ORS 419A.255(5) The following are not confidential and not exempt The following are not confidential and not exempt

from disclosure:from disclosure: The name and date of birth of the youth or youth offender;The name and date of birth of the youth or youth offender; The basis for the juvenile court’s jurisdiction over the The basis for the juvenile court’s jurisdiction over the

youth or youth offender;youth or youth offender; The date, time and place of any juvenile court proceeding The date, time and place of any juvenile court proceeding

in which the youth or youth offender is involved;in which the youth or youth offender is involved; The act alleged in the petition that if committed by an The act alleged in the petition that if committed by an

adult would constitute a crime if jurisdiction is based on adult would constitute a crime if jurisdiction is based on ORS 419C.005;ORS 419C.005;


Juvenile recordsJuvenile records ORS 419A.255(5)ORS 419A.255(5) The following are not confidential and not The following are not confidential and not

exempt from disclosure:exempt from disclosure: That portion of the juvenile court order providing for That portion of the juvenile court order providing for

the legal disposition of the youth or youth offender the legal disposition of the youth or youth offender when jurisdiction is based on ORS 419C.005;when jurisdiction is based on ORS 419C.005;

The names and addresses of the youth or youth The names and addresses of the youth or youth offender’s parents or guardians; andoffender’s parents or guardians; and

The register described in ORS 7.020 when The register described in ORS 7.020 when jurisdiction is based on ORS 419C.005.jurisdiction is based on ORS 419C.005.


Juvenile recordsJuvenile records ORS 419A.255(6):ORS 419A.255(6):

The following information shall be disclosed unless, and The following information shall be disclosed unless, and only for so long as, there is a clear need to delay only for so long as, there is a clear need to delay disclosure in the course of a specific investigation, disclosure in the course of a specific investigation, including the need to protect the complaining party or the including the need to protect the complaining party or the victim:victim:

The youth’s name and age and whether the youth is The youth’s name and age and whether the youth is employed or in school;employed or in school;

The youth offense for which the youth was taken into The youth offense for which the youth was taken into custody;custody;

The name and age of the adult complaining party and the The name and age of the adult complaining party and the adult victim, unless the disclosure of such information is adult victim, unless the disclosure of such information is otherwise prohibited or restricted;otherwise prohibited or restricted;


Juvenile recordsJuvenile records ORS 419A.255(6):ORS 419A.255(6):

The following information shall be disclosed unless, The following information shall be disclosed unless, and only for so long as, there is a clear need to and only for so long as, there is a clear need to delay disclosure in the course of a specific delay disclosure in the course of a specific investigation, investigation, including the need to protect the including the need to protect the complaining party or the victim:complaining party or the victim:

The identity of the investigating and arresting The identity of the investigating and arresting agency; andagency; and

The time and place that the youth was taken into The time and place that the youth was taken into custody and whether there was resistance, pursuit custody and whether there was resistance, pursuit or a weapon used in taking the youth into custody.or a weapon used in taking the youth into custody.


Personnel discipline actions Personnel discipline actions ORS 192.501(12)ORS 192.501(12)

Only applies to completed disciplinary Only applies to completed disciplinary actions when a sanction is imposed.actions when a sanction is imposed.

Does not apply when an employee resignsDoes not apply when an employee resigns Policy is to “protect the public employee Policy is to “protect the public employee

from ridicule for having been disciplined but from ridicule for having been disciplined but does not shield the government from public does not shield the government from public efforts to obtain knowledge about its efforts to obtain knowledge about its processes”processes”


Personnel discipline actions Personnel discipline actions ORS 192.501(12)ORS 192.501(12)

Balancing testBalancing test Does conduct constitute a criminal offense?Does conduct constitute a criminal offense? Employee’s positionEmployee’s position Basis for disciplinary action, andBasis for disciplinary action, and Extent to which information has already Extent to which information has already

been made public.been made public.


ORS 181.854ORS 181.854 Specific information about public Specific information about public

safety personnelsafety personnel Personnel investigations that do not result Personnel investigations that do not result

in disciplinein discipline Personnel photographsPersonnel photographs


Internal advisory communicationsInternal advisory communicationsORS 192.502(1)ORS 192.502(1)

Communication within or between public Communication within or between public bodiesbodies

Advisory nature, preliminary to any final Advisory nature, preliminary to any final actionaction

Covers non-factual materials, andCovers non-factual materials, and Public interest in frank communication Public interest in frank communication

outweighs public interest in disclosureoutweighs public interest in disclosure


Personal privacy exemptionPersonal privacy exemptionORS 192.502(2)ORS 192.502(2)

The mere fact that “the information would The mere fact that “the information would not be shared with strangers is not enough not be shared with strangers is not enough to avoid disclosure.”to avoid disclosure.”

An invasion of privacy is unreasonable An invasion of privacy is unreasonable where “an ordinary reasonable person where “an ordinary reasonable person would deem [it] highly offensive.”would deem [it] highly offensive.”


Personal privacy exemptionPersonal privacy exemptionORS 192.502(2)ORS 192.502(2)

Performance evaluationsPerformance evaluations Salary informationSalary information BenefitsBenefits ““any privacy rights that public officials have as any privacy rights that public officials have as

to the performance of their public duties must to the performance of their public duties must generally be subordinated to the right of citizens generally be subordinated to the right of citizens to monitor what elected and appointed officials to monitor what elected and appointed officials are doing on the job.” – OR Court of Appealsare doing on the job.” – OR Court of Appeals


Confidential submissionsConfidential submissionsORS 192.502(4)ORS 192.502(4)

The informant must have submitted the The informant must have submitted the information on the condition it would be information on the condition it would be kept confidentialkept confidential

Informant must not have been required by Informant must not have been required by law to submit the informationlaw to submit the information

Information must be of a nature that Information must be of a nature that reasonably should be kept confidentialreasonably should be kept confidential



The public body must show that it has The public body must show that it has obliged itself in good faith not to disclose obliged itself in good faith not to disclose the information, andthe information, and

Disclosure of the information must cause Disclosure of the information must cause harm to the public interest.harm to the public interest.



If a report made is to a law enforcement If a report made is to a law enforcement officer about a law violation, the identity of officer about a law violation, the identity of the informant may be exempt from the informant may be exempt from disclosure under ORS 40.275 or Rule 510 disclosure under ORS 40.275 or Rule 510 of the Oregon Evidence Code.of the Oregon Evidence Code.

Public MeetingsPublic Meetings Meetings 101Meetings 101

Public MeetingsPublic Meetings The FlowchartThe Flowchart

Does the body have two or more members?

Is it a public body?

Is it a “governing body”?

Is a quorum required?

Is it meeting to make or deliberate toward a decision?

Public MeetingsPublic Meetings What is a public body?What is a public body?

Governing bodyGoverning body Authority to make decision for public Authority to make decision for public

bodybody Authority to make a recommendation to Authority to make a recommendation to

a public bodya public body

Public MeetingsPublic Meetings RequirementsRequirements

NoticeNotice LocationLocation AccessibilityAccessibility Public attendancePublic attendance VotingVoting MinutesMinutes

Public MeetingsPublic Meetings Executive sessionExecutive session

ORS 192.660ORS 192.660 GSPC has oversightGSPC has oversight

Public MeetingsPublic Meetings Enforcement of lawEnforcement of law

GSPC – executive sessionsGSPC – executive sessions Declaratory actionDeclaratory action

The remedyThe remedy

Documents

Public Records and Meetings Law