Chapter 513
AN ACT
SB 671
Relating to public records; creating new provisions; amending ORS
40.225, 192.460 and 192.502; and declaring an emergency.
Be It Enacted by the People of
the State of
SECTION 1. Section 2 of this 2007 Act is added to and
made a part of ORS 192.410 to 192.505.
SECTION 2. (1) When a public record is subject to
disclosure under ORS 192.502 (9)(b), in lieu of making the public record
available for inspection by providing a copy of the record, the public body may
prepare and release a condensation from the record of the significant facts
that are not otherwise exempt from disclosure under ORS 192.410 to 192.505. The
release of the condensation does not waive any privilege under ORS 40.225 to
40.295.
(2) The person seeking
to inspect or receive a copy of any public record for which a condensation of
facts has been provided under this section may petition for review of the
denial to inspect or receive a copy of the records under ORS 192.410 to
192.505. In such a review, the Attorney General, district attorney or court
shall, in addition to reviewing the records to which access was denied, compare
those records to the condensation to determine whether the condensation
adequately describes the significant facts contained in the records.
SECTION 3. ORS 40.225 is amended to read:
40.225. (1) As used in this section, unless the context requires
otherwise:
(a) “Client” means a
person, public officer, corporation, association or other organization or
entity, either public or private, who is rendered professional legal services
by a lawyer, or who consults a lawyer with a view to obtaining professional
legal services from the lawyer.
(b) “Confidential
communication” means a communication not intended to be disclosed to third
persons other than those to whom disclosure is in furtherance of the rendition
of professional legal services to the client or those reasonably necessary for
the transmission of the communication.
(c) “Lawyer” means a
person authorized, or reasonably believed by the client to be authorized, to
practice law in any state or nation.
(d) “Representative of
the client” means a principal, an employee, an officer or a director of the
client:
(A) Who provides the
client’s lawyer with information that was acquired during the course of, or as
a result of, such person’s relationship with the client as principal, employee,
officer or director, and is provided to the lawyer for the purpose of obtaining
for the client the legal advice or other legal services of the lawyer; or
(B) Who, as part of such
person’s relationship with the client as principal, employee, officer or
director, seeks, receives or applies legal advice from the client’s lawyer.
(e) “Representative of
the lawyer” means one employed to assist the lawyer in the rendition of
professional legal services, but does not include a physician making a physical
or mental examination under ORCP 44.
(2) A client has a
privilege to refuse to disclose and to prevent any other person from disclosing
confidential communications made for the purpose of facilitating the rendition
of professional legal services to the client:
(a) Between the client
or the client’s representative and the client’s lawyer or a representative of
the lawyer;
(b) Between the client’s
lawyer and the lawyer’s representative;
(c) By the client or the
client’s lawyer to a lawyer representing another in a matter of common
interest;
(d) Between
representatives of the client or between the client and a representative of the
client; or
(e) Between lawyers
representing the client.
(3) The privilege
created by this section may be claimed by the client, a guardian or conservator
of the client, the personal representative of a deceased client, or the
successor, trustee, or similar representative of a corporation, association, or
other organization, whether or not in existence. The person who was the lawyer
or the lawyer’s representative at the time of the communication is presumed to
have authority to claim the privilege but only on behalf of the client.
(4) There is no
privilege under this section:
(a) If the services of
the lawyer were sought or obtained to enable or aid anyone to commit or plan to
commit what the client knew or reasonably should have known to be a crime or
fraud;
(b) As to a
communication relevant to an issue between parties who claim through the same
deceased client, regardless of whether the claims are by testate or intestate
succession or by inter vivos transaction;
(c) As to a
communication relevant to an issue of breach of duty by the lawyer to the
client or by the client to the lawyer;
(d) As to a
communication relevant to an issue concerning an attested document to which the
lawyer is an attesting witness; or
(e) As to a
communication relevant to a matter of common interest between two or more
clients if the communication was made by any of them to a lawyer retained or
consulted in common, when offered in an action between any of the clients.
(5) Notwithstanding ORS
40.280, a privilege is maintained under this section for a communication made
to the office of public defense services established under ORS 151.216 for the
purpose of seeking preauthorization for or payment of nonroutine fees or
expenses under ORS 135.055.
(6) Notwithstanding
subsection (4)(c) of this section and ORS 40.280, a privilege is maintained
under this section for a communication that is made to the office of public
defense services established under ORS 151.216 for the purpose of making, or
providing information regarding, a complaint against a lawyer providing public
defense services.
(7) Notwithstanding
ORS 40.280, a privilege is maintained under this section for a communication
ordered to be disclosed under ORS 192.410 to 192.505.
SECTION 4. ORS 192.460 is amended to read:
192.460. (1) ORS
192.450 [is equally applicable] applies
to the case of a person denied the right to inspect or to receive a copy
of any public record of a public body other than a state agency, except that [in such case]:
(a) The district
attorney of the county in which the public body is located, or if it is located
in more than one county the district attorney of the county in which the
administrative offices of the public body are located, shall carry out the
functions of the Attorney General[, and];
(b) Any suit
filed [shall] must be filed in
the circuit court for [such county, and
except that] the county described in paragraph (a) of this subsection;
and
(c) The district attorney [shall] may not serve as counsel for the public body, in the
cases permitted under ORS 192.450 (3), unless the district attorney ordinarily
serves as counsel for [it] the
public body.
(2) Disclosure of a
record to the district attorney in compliance with subsection (1) of this
section does not waive any privilege or claim of privilege regarding the record
or its contents.
(3) Disclosure of a
record or part of a record as ordered by the district attorney is a compelled
disclosure for purposes of ORS 40.285.
SECTION 5. 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 public disclosure 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) Public body employee
or volunteer addresses, Social Security numbers, dates of birth and telephone
numbers contained in personnel records maintained by the public body that is
the employer or the recipient of volunteer services. This exemption:
(a) Does not apply to
the addresses, dates of birth and telephone numbers of employees or volunteers
who are elected officials, except that a judge or district attorney subject to
election may seek to exempt the judge’s or district attorney’s address or
telephone number, or both, under the terms of ORS 192.445;
(b) Does not apply to
employees or volunteers to the extent that the party seeking disclosure shows
by clear and convincing evidence that the public interest requires disclosure
in a particular instance;
(c) Does not apply to a
substitute teacher as defined in ORS 342.815 when requested by a professional
education association of which the substitute teacher may be a member; and
(d) Does not relieve a
public employer of any duty under ORS 243.650 to 243.782.
(4) 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.
(5) Information or
records of the Department of Corrections, including the State Board of Parole
and Post-Prison Supervision, to the extent that disclosure 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.
(6) 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.
(7) Reports made to or
filed with the court under ORS 137.077 or 137.530.
(8) Any public records
or information the disclosure of which is prohibited by federal law or
regulations.
(9)(a) Public
records or information the disclosure of which is prohibited or restricted or
otherwise made confidential or privileged under
(b) Subject to
section 2 of this 2007 Act, paragraph (a) of this subsection does not apply to
factual information compiled in a public record when:
(A) The basis for the
claim of exemption is ORS 40.225;
(B) The factual
information is not prohibited from disclosure under any applicable state or
federal law, regulation or court order and is not otherwise exempt from
disclosure under ORS 192.410 to 192.505;
(C) The factual
information was compiled by or at the direction of an attorney as part of an
investigation on behalf of the public body in response to information of
possible wrongdoing by the public body;
(D) The factual
information was not compiled in preparation for litigation, arbitration or an
administrative proceeding that was reasonably likely to be initiated or that
has been initiated by or against the public body; and
(E) The holder of the
privilege under ORS 40.225 has made or authorized a public statement
characterizing or partially disclosing the factual information compiled by or
at the attorney’s direction.
(10) 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.
(11) Records of the
Energy Facility Siting Council concerning the review or approval of security
programs pursuant to ORS 469.530.
(12) Employee and
retiree address, telephone number and other nonfinancial membership records and
employee financial records maintained by the Public Employees Retirement System
pursuant to ORS chapters 238 and 238A.
(13) 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.
(14) The monthly reports
prepared and submitted under ORS 293.761 and 293.766 concerning the Public
Employees 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.
(15) Reports of
unclaimed property filed by the holders of such property to the extent
permitted by ORS 98.352.
(16) The following
records, communications and information submitted to the Oregon Economic and
Community Development Commission, the Economic and Community Development
Department, the State Department of Agriculture, the Oregon Growth Account
Board, the Port of Portland or other ports, as defined in ORS 777.005, by
applicants for investment funds, loans or services including, but not limited
to, those described in ORS 285A.224:
(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.
(f) Marketing strategy
information that relates to applicant’s plan to address specific markets and
applicant’s strategy regarding specific competitors.
(17) 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.
(c) The actual, or
estimated, amount of the delinquency.
(18) All information
supplied by a person under ORS 151.485 for the purpose of requesting appointed
counsel, and all information supplied to the court from whatever source for the
purpose of verifying the financial eligibility of a person pursuant to ORS
151.485.
(19) 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
(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.
(20) Sensitive business
records or financial or commercial information of the Oregon Health and
(21) Records of Oregon
Health and
(22) 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.
(23) The following
records, communications and information obtained by the Housing and Community
Services Department in connection with the department’s monitoring or
administration of financial assistance or of housing or other developments:
(a) Personal and
corporate financial statements and information, including tax returns.
(b) Credit reports.
(c) Project appraisals.
(d) Market studies and
analyses.
(e) Articles of
incorporation, partnership agreements and operating agreements.
(f) Commitment letters.
(g) Project pro forma
statements.
(h) Project cost
certifications and cost data.
(i) Audits.
(j) Project tenant
correspondence.
(k) Personal information
about a tenant.
(L) Housing assistance
payments.
(24) Raster geographic
information system (GIS) digital databases, provided by private forestland
owners or their representatives, voluntarily and in confidence to the State
Forestry Department, that is not otherwise required by law to be submitted.
(25) Sensitive business,
commercial or financial information furnished to or developed by a public body
engaged in the business of providing electricity or electricity services, if
the information is directly related to a transaction described in ORS 261.348,
or if the information is directly related to a bid, proposal or negotiations
for the sale or purchase of electricity or electricity services, and disclosure
of the information would cause a competitive disadvantage for the public body
or its retail electricity customers. This subsection does not apply to
cost-of-service studies used in the development or review of generally applicable
rate schedules.
(26) Sensitive business,
commercial or financial information furnished to or developed by the City of
(27) Personally
identifiable information about customers of a municipal electric utility or a
people’s utility district or the names, dates of birth, driver license numbers,
telephone numbers, electronic mail addresses or Social Security numbers of
customers who receive water, sewer or storm drain services from a public body
as defined in ORS 174.109. The utility or district may release personally
identifiable information about a customer, and a public body providing water,
sewer or storm drain services may release the name, date of birth, driver
license number, telephone number, electronic mail address or Social Security
number of a customer, if the customer consents in writing or electronically, if
the disclosure is necessary for the utility, district or other public body to
render services to the customer, if the disclosure is required pursuant to a
court order or if the disclosure is otherwise required by federal or state law.
The utility, district or other public body may charge as appropriate for the
costs of providing such information. The utility, district or other public body
may make customer records available to third party credit agencies on a regular
basis in connection with the establishment and management of customer accounts
or in the event such accounts are delinquent.
(28) A record of the
street and number of an employee’s address submitted to a special district to
obtain assistance in promoting an alternative to single occupant motor vehicle
transportation.
(29) Sensitive business
records, capital development plans or financial or commercial information of
Oregon Corrections Enterprises that is not customarily provided to business
competitors.
(30) Documents,
materials or other information submitted to the Director of the Department of
Consumer and Business Services in confidence by a state, federal, foreign or
international regulatory or law enforcement agency or by the National
Association of Insurance Commissioners, its affiliates or subsidiaries under
ORS 646.380 to 646.398, 697.005 to 697.095, 697.602 to 697.842, 705.137,
717.200 to 717.320, 717.900 or 717.905, ORS chapter 59, 722, 723, 725 or 726,
the Bank Act or the Insurance Code when:
(a) The document,
material or other information is received upon notice or with an understanding
that it is confidential or privileged under the laws of the jurisdiction that
is the source of the document, material or other information; and
(b) The director has
obligated the Department of Consumer and Business Services not to disclose the
document, material or other information.
(31) A county elections
security plan developed and filed under ORS 254.074.
(32) Information about
review or approval of programs relating to the security of:
(a) Generation, storage
or conveyance of:
(A) Electricity;
(B) Gas in liquefied or
gaseous form;
(C) Hazardous substances
as defined in ORS 453.005 (7)(a), (b) and (d);
(D) Petroleum products;
(E) Sewage; or
(F) Water.
(b) Telecommunication
systems, including cellular, wireless or radio systems.
(c) Data transmissions
by whatever means provided.
(33) The information
specified in ORS 25.020 (8) if the Chief Justice of the Supreme Court
designates the information as confidential by rule under ORS 1.002.
(34) If requested by a
public safety officer as defined in ORS 181.610, the home address, home
telephone number and electronic mail address of the public safety officer. This
exemption does not apply to addresses and telephone numbers that are contained
in county real property or lien records.
SECTION 6. Section 2 of this 2007 Act and the
amendments to ORS 40.225, 192.460 and 192.502 by sections 3 to 5 of this 2007
Act apply to public records created on or after the effective date of this 2007
Act.
SECTION 7. This 2007 Act being necessary for the
immediate preservation of the public peace, health and safety, an emergency is
declared to exist, and this 2007 Act takes effect on its passage.
Approved by the Governor June 20, 2007
Filed in the office of Secretary of State June 21, 2007
Effective date June 20, 2007
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