68th OREGON LEGISLATIVE ASSEMBLY--1995 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 1479

                         House Bill 2346

Sponsored by Representative MANNIX


                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Exempts from public disclosure certain library records that
identify person.

                        A BILL FOR AN ACT
Relating to public disclosure of library records; creating new
  provisions; and amending ORS 192.501 and 192.502.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 192.502 is amended to read:
  192.502. The following public records are exempt from
disclosure under ORS 192.410 to 192.505:
  (1) Communications within a public body or between public
bodies of an advisory nature to the extent that they cover other
than purely factual materials and are preliminary to any final
agency determination of policy or action. This exemption shall
not apply unless the public body shows that in the particular
instance the public interest in encouraging frank communication
between officials and employees of public bodies clearly
outweighs the public interest in disclosure { + . + }   { - ; - }

  (2) Information of a personal nature such as but not limited to
that kept in a personal, medical or similar file, if the public
disclosure thereof would constitute an unreasonable invasion of
privacy, unless the public interest by clear and convincing
evidence requires disclosure in the particular instance. The
party seeking disclosure shall have the burden of showing that
public disclosure would not constitute an unreasonable invasion
of privacy { + . + }   { - ; - }
  (3) 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 { + . + }   { - ; - }
  (4) Information or records of the Department of Corrections,
including the State Board of Parole and Post-Prison Supervision,
to the extent that disclosure thereof would interfere with the
rehabilitation of a person in custody of the department or
substantially prejudice or prevent the carrying out of the
functions of the department, if the public interest in
confidentiality clearly outweighs the public interest in
disclosure { + . + }   { - ; - }
  (5) Records, reports and other information received or compiled
by the Director of the Department of Consumer and Business
Services in the administration of ORS chapters 723 and 725 not
otherwise required by law to be made public, to the extent that
the interests of lending institutions, their officers, employees
and customers in preserving the confidentiality of such
information outweighs the public interest in disclosure { + . + }
 { - ; - }
  (6) Reports made to or filed with the court under ORS 137.077
or 137.530 { + . + }   { - ; - }
  (7) Any public records or information the disclosure of which
is prohibited by federal law or regulations { + . + }   { - ; - }

  (8) Public records or information the disclosure of which is
prohibited or restricted or otherwise made confidential or
privileged under Oregon law { + . + }   { - ; - }
  (9) Public records or information described in this section,
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 { + . + }   { - ; - }
  (10) Records of the Energy Facility Siting Council concerning
the review or approval of security programs pursuant to ORS
469.530 { + . + }   { - ; - }
  (11) Employee and retiree address, telephone number and other
nonfinancial membership records and employee financial records
maintained by the Public Employes' Retirement System pursuant to
ORS 237.001 to 237.320 { + . + }   { - ; - }
  (12) Records submitted by private persons or businesses to the
State Treasurer or the Oregon Investment Council relating to
proposed acquisition, exchange or liquidation of public
investments under ORS chapter 293 may be treated as exempt from
disclosure when and only to the extent that disclosure of such
records reasonably may be expected to substantially limit the
ability of the Oregon Investment Council to effectively compete
or negotiate for, solicit or conclude such transactions. Records
which relate to concluded transactions are not subject to this
exemption { + . + }   { - ; - }
  (13) The monthly reports prepared and submitted under ORS
293.761 and 293.766 concerning the Public Employes' Retirement
Fund and the Industrial Accident Fund may be uniformly treated as
exempt from disclosure for a period of up to 90 days after the
end of the calendar quarter { + . + }   { - ; - }
  (14) Reports of unclaimed property filed by the holders of such
property to the extent permitted by ORS 98.352 { + . + }
 { - ; - }
  (15) The following records, communications and information
submitted to the Economic Development Commission, the Economic
Development Department, the Oregon Resource and Technology
Development Corporation, the Port of Portland or other ports, as
defined in ORS 777.005, by applicants for loans or services
described in ORS 285.120:
  (a) Personal financial statements;
  (b) Financial statements of applicants;
  (c) Customer lists;
  (d) Information of an applicant pertaining to litigation to
which the applicant is a party if the complaint has been filed,
or if the complaint has not been filed, if the applicant shows
that such litigation is reasonably likely to occur; this
exemption does not apply to litigation which has been concluded,
and nothing in this paragraph shall limit any right or
opportunity granted by discovery or deposition statutes to a
party to litigation or potential litigation;
  (e) Production, sales and cost data; and
  (f) Marketing strategy information that relates to applicant's
plan to address specific markets and applicant's strategy
regarding specific competitors { + . + }   { - ; - }
  (16) Records, reports or returns submitted by private concerns
or enterprises required by law to be submitted to or inspected by
a governmental body to allow it to determine the amount of any
transient lodging tax payable and the amounts of such tax payable
or paid, to the extent that such information is in a form which
would permit identification of the individual concern or
enterprise. Nothing in this subsection shall limit the use which
can be made of such information for regulatory purposes or its
admissibility in any enforcement proceedings. The public body
shall notify the taxpayer of the delinquency immediately by
certified mail. However, in the event that the payment or
delivery of transient lodging taxes otherwise due to a public
body is delinquent by over 60 days, the public body shall
disclose, upon the request of any person, the following
information:
  (a) The identity of the individual concern or enterprise that
is delinquent over 60 days in the payment or delivery of the
taxes;
  (b) The period for which the taxes are delinquent; and
  (c) The actual, or estimated, amount of the
delinquency { + . + }   { - ; - }
  (17) All information supplied by a person under ORS 151.430 to
151.491 for the purpose of requesting court-appointed counsel,
and all information supplied to the State Court Administrator
from whatever source for the purpose of verifying indigency of a
person pursuant to ORS 151.430 to 151.491 { + . + }   { - ;
and - }
  (18) Workers' compensation claim records of the Department of
Consumer and Business Services, except in accordance with rules
adopted by the Director of the Department of Consumer and
Business Services, in any of the following circumstances:
  (a) When necessary for insurers, self-insured employers and
third party claim administrators to process workers' compensation
claims.
  (b) When necessary for the director, other governmental
agencies of this state or the United States to carry out their
duties, functions or powers.
  (c) When the disclosure is made in such a manner that the
disclosed information cannot be used to identify any worker who
is the subject of a claim.
  (d) When a worker or the worker's representative requests
review of the worker's claim record.  { +
  (19) The records of a library, including circulation records,
showing use of specific library material by a named person or
consisting of the name of a library patron together with the
address or telephone number, or both, of the patron. + }
  SECTION 2. ORS 192.501 is amended to read:
  192.501. The following public records are exempt from
disclosure under ORS 192.410 to 192.505 unless the public
interest requires disclosure in the particular instance:
  (1) Records of a public body pertaining to litigation to which
the public body is a party if the complaint has been filed, or if
the complaint has not been filed, if the public body shows that
such litigation is reasonably likely to occur. This exemption
does not apply to litigation which has been concluded, and
nothing in this subsection shall limit any right or opportunity
granted by discovery or deposition statutes to a party to
litigation or potential litigation;
  (2) Trade secrets. 'Trade secrets,' as used in this section,
may include, but are not limited to, any formula, plan, pattern,
process, tool, mechanism, compound, procedure, production data,
or compilation of information which is not patented, which is
known only to certain individuals within an organization and
which is used in a business it conducts, having actual or
potential commercial value, and which gives its user an
opportunity to obtain a business advantage over competitors who
do not know or use it;
  (3) Investigatory information compiled for criminal law
purposes. The record of an arrest or the report of a crime shall
be disclosed unless and only for so long as there is a clear need
to delay disclosure in the course of a specific investigation,
including the need to protect the complaining party or the
victim.  Nothing in this subsection shall limit any right
constitutionally guaranteed, or granted by statute, to disclosure
or discovery in criminal cases. For purposes of this subsection,
the record of an arrest or the report of a crime includes, but is
not limited to:
  (a) The arrested person's name, age, residence, employment,
marital status and similar biographical information;
  (b) The offense with which the arrested person is charged;
  (c) The conditions of release pursuant to ORS 135.230 to
135.290;
  (d) The identity of and biographical information concerning
both complaining party and victim;
  (e) The identity of the investigating and arresting agency and
the length of the investigation;
  (f) The circumstances of arrest, including time, place,
resistance, pursuit and weapons used; and
  (g) Such information as may be necessary to enlist public
assistance in apprehending fugitives from justice;
  (4) Test questions, scoring keys, and other data used to
administer a licensing examination, employment, academic or other
examination or testing procedure before the examination is given
and if the examination is to be used again. Records establishing
procedures for and instructing persons administering, grading or
evaluating an examination or testing procedure are included in
this exemption, to the extent that disclosure would create a risk
that the result might be affected;
  (5) Information 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;
  (6) Information relating to the appraisal of real estate prior
to its acquisition;
  (7) The names and signatures of employees who sign
authorization cards or petitions for the purpose of requesting
representation or decertification elections;
  (8) Investigatory information relating to any complaint filed
under ORS 659.040 or 659.045, until such time as the complaint is
resolved under ORS 659.050, or a final administrative
determination is made under ORS 659.060;
  (9) Investigatory information relating to any complaint or
charge filed under ORS 243.676 and 663.180;
    { - (10) The circulation records of a public library showing
use of specific library materials by named persons; - }
    { - (11) - }   { + (10) + } Records, reports and other
information received or compiled by the Director of the
Department of Consumer and Business Services under ORS 697.732;

    { - (12) - }   { + (11) + } Information concerning the
location of archaeological sites or objects as those terms are
defined in ORS 358.905, except if the governing body of an Indian
tribe requests the information and the need for the information
is related to that Indian tribe's cultural or religious
activities. This exemption does not include information relating
to a site that is all or part of an existing, commonly known and
publicized tourist facility or attraction;
    { - (13) - }   { + (12) + } A personnel discipline action, or
materials or documents supporting that action;
    { - (14) - }   { + (13) + } Information developed pursuant to
ORS 496.004, 496.172 and 498.026 or ORS 496.192 and 564.100,
regarding the habitat, location or population of any threatened
species or endangered species;
    { - (15) - }   { + (14) + } Writings prepared by or under the
direction of faculty of public educational institutions, in
connection with research, until publicly released, copyrighted or
patented;
    { - (16) - }   { + (15) + } Computer programs developed or
purchased by or for any public body for its own use. As used in
this subsection, ' computer program' means a series of
instructions or statements which permit the functioning of a
computer system in a manner designed to provide storage,
retrieval and manipulation of data from such computer system, and
any associated documentation and source material that explain how
to operate the computer program.  ' Computer program' does not
include:
  (a) The original data, including but not limited to numbers,
text, voice, graphics and images;
  (b) Analyses, compilations and other manipulated forms of the
original data produced by use of the program; or
  (c) The mathematical and statistical formulas which would be
used if the manipulated forms of the original data were to be
produced manually;
    { - (17) - }   { + (16) + } Data and information provided by
participants to mediation under section 5, chapter 967, Oregon
Laws 1989;
    { - (18) - }   { + (17) + } Investigatory information
relating to any complaint or charge filed under ORS chapter 654,
until a final administrative determination is made or, if a
citation is issued, until an employer receives notice of any
citation;
    { - (19) - }   { + (18) + } Specific operational plans in
connection with an anticipated threat to individual or public
safety for deployment and use of personnel and equipment,
prepared and used by a law enforcement agency, if public
disclosure thereof would endanger the life or physical safety of
a citizen or law enforcement officer or jeopardize the law
enforcement activity involved;
    { - (20) - }   { + (19) + }(a) Audits or audit reports of a
telecommunications utility. As used in this paragraph, 'audit or
audit report of a telecommunications utility' means any external
or internal audit or audit report pertaining to a
telecommunications utility, as defined in ORS 759.005, or
pertaining to a corporation having an affiliated interest, as
defined in ORS 759.010, with a telecommunications utility that is
intended to make the operations of the entity more efficient,
accurate or compliant with applicable rules, procedures or
standards, that may include self-criticism and that has been
filed by the telecommunications utility or affiliate under
compulsion of state law. 'Audit or audit report of a
telecommunications utility' does not mean an audit of a cost
study that would be discoverable in a contested case proceeding
and that is not subject to a protective order.
  (b) Financial statements. As used in this paragraph, '
financial statement' means a financial statement of a
nonregulated corporation having an affiliated interest, as
defined in ORS 759.010, with a telecommunications utility, as
defined in ORS 759.005; and
    { - (21) - }   { + (20) + } The residence address of an
elector if authorized under ORS 247.965 and subject to ORS
247.967.
  SECTION 3. ORS 192.501, as amended by section 13, chapter 967,
Oregon Laws 1989, section 2, chapter 636, Oregon Laws 1991,
section 2, chapter 678, Oregon Laws 1991, section 5, chapter 616,
Oregon Laws 1993, and section 2, chapter 787, Oregon Laws 1993,
is amended to read:
  192.501. The following public records are exempt from
disclosure under ORS 192.410 to 192.505 unless the public
interest requires disclosure in the particular instance:
  (1) Records of a public body pertaining to litigation to which
the public body is a party if the complaint has been filed, or if
the complaint has not been filed, if the public body shows that
such litigation is reasonably likely to occur. This exemption
does not apply to litigation which has been concluded, and
nothing in this subsection shall limit any right or opportunity
granted by discovery or deposition statutes to a party to
litigation or potential litigation;
  (2) Trade secrets. 'Trade secrets,' as used in this section,
may include, but are not limited to, any formula, plan, pattern,
process, tool, mechanism, compound, procedure, production data,
or compilation of information which is not patented, which is
known only to certain individuals within an organization and
which is used in a business it conducts, having actual or
potential commercial value, and which gives its user an
opportunity to obtain a business advantage over competitors who
do not know or use it;
  (3) Investigatory information compiled for criminal law
purposes. The record of an arrest or the report of a crime shall
be disclosed unless and only for so long as there is a clear need
to delay disclosure in the course of a specific investigation,
including the need to protect the complaining party or the
victim.  Nothing in this subsection shall limit any right
constitutionally guaranteed, or granted by statute, to disclosure
or discovery in criminal cases. For purposes of this subsection,
the record of an arrest or the report of a crime includes, but is
not limited to:
  (a) The arrested person's name, age, residence, employment,
marital status and similar biographical information;
  (b) The offense with which the arrested person is charged;
  (c) The conditions of release pursuant to ORS 135.230 to
135.290;
  (d) The identity of and biographical information concerning
both complaining party and victim;
  (e) The identity of the investigating and arresting agency and
the length of the investigation;
  (f) The circumstances of arrest, including time, place,
resistance, pursuit and weapons used; and
  (g) Such information as may be necessary to enlist public
assistance in apprehending fugitives from justice;
  (4) Test questions, scoring keys, and other data used to
administer a licensing examination, employment, academic or other
examination or testing procedure before the examination is given
and if the examination is to be used again. Records establishing
procedures for and instructing persons administering, grading or
evaluating an examination or testing procedure are included in
this exemption, to the extent that disclosure would create a risk
that the result might be affected;
  (5) Information 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;
  (6) Information relating to the appraisal of real estate prior
to its acquisition;
  (7) The names and signatures of employees who sign
authorization cards or petitions for the purpose of requesting
representation or decertification elections;
  (8) Investigatory information relating to any complaint filed
under ORS 659.040 or 659.045, until such time as the complaint is
resolved under ORS 659.050, or a final administrative
determination is made under ORS 659.060;
  (9) Investigatory information relating to any complaint or
charge filed under ORS 243.676 and 663.180;
    { - (10) The circulation records of a public library showing
use of specific library materials by named persons; - }
    { - (11) - }   { + (10) + } Records, reports and other
information received or compiled by the Director of the
Department of Consumer and Business Services under ORS 697.732;
    { - (12) - }   { + (11) + } Information concerning the
location of archaeological sites or objects as those terms are
defined in ORS 358.905, except if the governing body of an Indian
tribe requests the information and the need for the information
is related to that Indian tribe's cultural or religious
activities. This exemption does not include information relating
to a site that is all or part of an existing, commonly known and
publicized tourist facility or attraction;
    { - (13) - }   { + (12) + } A personnel discipline action, or
materials or documents supporting that action;
    { - (14) - }   { + (13) + } Information developed pursuant to
ORS 496.004, 496.172 and 498.026 or ORS 496.192 and 564.100,
regarding the habitat, location or population of any threatened
species or endangered species;
    { - (15) - }   { + (14) + } Writings prepared by or under the
direction of faculty of public educational institutions, in
connection with research, until publicly released, copyrighted or
patented;
    { - (16) - }   { + (15) + } Computer programs developed or
purchased by or for any public body for its own use. As used in
this subsection, ' computer program' means a series of
instructions or statements which permit the functioning of a
computer system in a manner designed to provide storage,
retrieval and manipulation of data from such computer system, and
any associated documentation and source material that explain how
to operate the computer program.  ' Computer program' does not
include:
  (a) The original data, including but not limited to numbers,
text, voice, graphics and images;
  (b) Analyses, compilations and other manipulated forms of the
original data produced by use of the program; or
  (c) The mathematical and statistical formulas which would be
used if the manipulated forms of the original data were to be
produced manually;
    { - (17) - }   { + (16) + } Investigatory information
relating to any complaint or charge filed under ORS chapter 654,
until a final administrative determination is made or, if a
citation is issued, until an employer receives notice of any
citation;

    { - (18) - }   { + (17) + } Specific operational plans in
connection with an anticipated threat to individual or public
safety for deployment and use of personnel and equipment,
prepared and used by a law enforcement agency, if public
disclosure thereof would endanger the life or physical safety of
a citizen or law enforcement officer or jeopardize the law
enforcement activity involved;
    { - (19) - }   { + (18) + }(a) Audits or audit reports of a
telecommunications utility. As used in this paragraph, 'audit or
audit report of a telecommunications utility' means any external
or internal audit or audit report pertaining to a
telecommunications utility, as defined in ORS 759.005, or
pertaining to a corporation having an affiliated interest, as
defined in ORS 759.010, with a telecommunications utility that is
intended to make the operations of the entity more efficient,
accurate or compliant with applicable rules, procedures or
standards, that may include self-criticism and that has been
filed by the telecommunications utility or affiliate under
compulsion of state law. 'Audit or audit report of a
telecommunications utility' does not mean an audit of a cost
study that would be discoverable in a contested case proceeding
and that is not subject to a protective order;
  (b) Financial statements. As used in this paragraph, '
financial statement' means a financial statement of a
nonregulated corporation having an affiliated interest, as
defined in ORS 759.010, with a telecommunications utility, as
defined in ORS 759.005; and
    { - (20) - }   { + (19) + } The residence address of an
elector if authorized under ORS 247.965 and subject to ORS
247.967.
  SECTION 4.  { + Nothing in the amendments to ORS 192.501 by
section 3 of this Act affects the provisions of section 17,
chapter 967, Oregon Laws 1989. + }
  SECTION 5.  { + Nothing in the amendments to ORS 192.501 by
sections 2 and 3 of this Act affects a request to disclose public
records of a library made prior to the effective date of this
Act.  However, the amendments to ORS 192.502 by section 1 of this
Act apply to any request to disclose public records of a library
made on or after the effective date of this Act. + }
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