71st OREGON LEGISLATIVE ASSEMBLY--2001 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 3934
 
                           B-Engrossed
 
                         House Bill 3839
                  Ordered by the Senate June 27
  Including House Amendments dated May 14 and Senate Amendments
                          dated June 27
 
Sponsored by Representative SIMMONS
 
 
                             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.
 
  Modifies list of public records exempted from disclosure.
Exempts records that would allow person to gain unauthorized
access to public funds. Exempts specific information
 { - provided to authorize or authenticate - }   { + used by
public body for specified purposes in connection with + }
financial transaction.
   { +  Modifies provisions dealing with public release of
information obtained by State Department of Agriculture in
connection with pesticide use reporting system. + }
 
                        A BILL FOR AN ACT
Relating to public records; creating new provisions; and amending
  ORS 192.501 and 192.502 and section 8, chapter 1059, Oregon
  Laws 1999.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. 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) Records, reports and other information received or
compiled by the Director of the Department of Consumer and
Business Services under ORS 697.732;
  (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;
  (12) A personnel discipline action, or materials or documents
supporting that action;
  (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;
  (14) Writings prepared by or under the direction of faculty of
public educational institutions, in connection with research,
until publicly released, copyrighted or patented;
  (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;
  (16) Data and information provided by participants to mediation
under ORS 36.256;
  (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;
  (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;
  (19)(a) Audits or audit reports required of a
telecommunications carrier. As used in this paragraph, 'audit or
audit report' means any external or internal audit or audit
report pertaining to a telecommunications carrier, as defined in
ORS 133.721, or pertaining to a corporation having an affiliated
interest, as defined in ORS 759.010, with a telecommunications
carrier 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 carrier or affiliate
under compulsion of state law. 'Audit or audit report' 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; and
  (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 carrier, as
defined in ORS 133.721;
  (20) The residence address of an elector if authorized under
ORS 247.965 and subject to ORS 247.967;
  (21) The following records, communications and information
submitted to a housing authority as defined in ORS 456.005 by
applicants for and recipients of loans, grants and tax credits:
  (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 requested to be confidential;
  (k) Tenant files relating to certification; and
  (L) Housing assistance payment requests;
  (22) Records or information that, if disclosed, would allow a
person to:
  (a) Gain unauthorized access to buildings or other property
used or owned by a public body;
  (b) Identify those areas of structural or operational
vulnerability that would permit unlawful disruption to, or
interference with, the services provided by a public body; or
  (c) Disrupt, interfere with or gain unauthorized access to
 { +  public funds or to + } information processing,
communication or telecommunication systems, including the
information contained
  { - therein - }  { +  in the systems + }, that are used or
operated by a public body;
  (23) Records or information that would reveal the security
measures taken or recommended to be taken to protect:
  (a) An officer or employee of a public body;
  (b) Buildings or other property used or owned by a public body;
  (c) Information processing, communication or telecommunication
systems, including the information contained therein, that are
used or operated by a public body; or
  (d) Those operations of the Oregon State Lottery the security
of which are subject to study and evaluation under ORS 461.180
(6);
  (24) Writings prepared by or under the direction of officials
of Oregon Health Sciences University about a person and the
person's potential interest in donating money or property to the
university or the person's actual donation unless disclosure is
authorized by the person;   { - and - }
  (25) Records of the name and address of a person who files a
report with or pays an assessment to a council, board or
commission created or organized under ORS chapter 576, 577, 578
or 579. As used in this subsection, 'council, board or commission
' does not include the advisory board established under ORS
576.810  { - . - }  { + ; and
  (26) Information provided to, obtained by or used by a public
body to authorize, originate, receive or authenticate a transfer
of funds, including but not limited to a credit card number,
payment card expiration date, password, financial institution
account number and financial institution routing number. + }
  SECTION 2. Section 8, chapter 1059, Oregon Laws 1999, is
amended to read:
   { +  Sec. 8. + }  { + (1) + } In implementing the pesticide
use reporting system, the State Department of Agriculture shall,
at a minimum:
    { - (1) - }   { + (a) + } Beginning July 1, 2003, and
annually thereafter, publish an annual report summarizing the
pesticide use data in Oregon on a watershed basis. The report
shall include an analysis of trends in use and an assessment of
accuracy of the reporting data and summary of use by regions,
watershed, county or other scale as recommended by the pesticide
stakeholder group appointed under section 5 { + , chapter 1059,
Oregon Laws 1999 + }   { - of this 1999 Act - } .
    { - (2) - }   { + (b) + } Establish policy and adopt rules
relating to the public release of  { + data about + } pesticide
 { + sales or + } use   { - information.  The policy and rules
may not reveal the identity of the owner or lessee of a specific
property or the address of the property itself where a pesticide
has been applied, and shall maintain the confidentiality of that
information. Nothing in - }   { + consistent with the limitations
provided in this section.
  (2)(a) Data about pesticide use obtained under sections 2 to 9,
chapter 1059, Oregon Laws 1999, are confidential if the data
would reveal the identity of the owner or lessee or the specific
location of property where a person has applied a pesticide:
  (A) For a private agricultural or forestry operation; or
  (B) On private property or public property leased to a private
person.
  (b) Data about pesticide sales obtained under sections 2 to 9,
chapter 1059, Oregon Laws 1999, are confidential if the data
would reveal a trade secret, as defined in ORS 646.461, of the
retail outlet, multiple-outlet retailer or associated group of
retailers that reports the data.
  (3) + } The policy   { - or - }   { + and + } rules
 { - adopted by - }   { + that + } the department   { - shall - }
 { + adopts under this section may not + } limit access to data
for the following purposes:
  (a) Information obtained as part of any investigation under any
other provision of law;
  (b) To release information obtained exclusively under sections
2 to 9 { + , chapter 1059, Oregon Laws 1999, + }   { - of this
1999 Act - }  to any other local, state or federal agency, if the
local, state or federal agency has agreed to maintain the
confidentiality of any information that is required to be treated
as confidential under this   { - subsection - }  { +
section + }, unless the public interest by clear and convincing
evidence requires disclosure in the particular instance; and
  (c) To release information obtained exclusively under sections
2 to 9 { + , chapter 1059, Oregon Laws 1999, + }   { - of this
1999 Act - }  to a health or environmental researcher acting in
an official capacity from an accredited university or accepted
research institute who agrees to maintain the confidentiality of
any information that is required to be treated as confidential
under this   { - subsection - }  { +  section + }.
  SECTION 3. 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)(a) Public body employee or volunteer addresses, 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 does not apply:
  (A) To such employees or volunteers if they 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) To such 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; or
  (C) 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.
  (b) Nothing in this subsection exempting employee records from
disclosure relieves 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 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.
  (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) Public records or information the disclosure of which is
prohibited or restricted or otherwise made confidential or
privileged under Oregon law.
  (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 chapter 238 and ORS 238.410.
  (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 Resource and
Technology Development Account or the Oregon Resource and
Technology Development 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 151.430 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.
  (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 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.
  (20) Sensitive business records or financial or commercial
information of the Oregon Health Sciences University that is not
customarily provided to business competitors.
  (21) Records of Oregon Health Sciences University regarding
candidates for the position of president of the university.
  (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
submitted to the Housing and Community Services Department by
applicants for and recipients of loans, grants and tax credits:
  (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 requested to be confidential.
  (k) Tenant files relating to certification.
  (L) Housing assistance payment requests.
  (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 Klamath Falls, acting
solely in connection with the ownership and operation of the
Klamath Cogeneration Project, if the information is directly
related to a transaction described in ORS 225.085 and disclosure
of the information would cause a competitive disadvantage for the
Klamath Cogeneration Project. This subsection does not apply to
cost-of-service studies used in the development or review of
generally applicable rate schedules.
  (27) Personally identifiable information about customers of a
municipal electric utility or a people's utility district. The
utility or district may, however, release such information to a
third party if the customer consents in writing or
electronically, if the disclosure is necessary to render utility
or district services to the customer, or if the disclosure is
required pursuant to a court order. The utility or district may
charge as appropriate for the costs of providing such
information. The utility or district 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) Except under the provisions of section 8 (2),
chapter 1059, Oregon Laws 1999, pesticide sales or use reporting
data obtained by the State Department of Agriculture exclusively
under the provisions of sections 2 to 9, chapter 1059, Oregon
Laws 1999, that would reveal the identity or specific location of
the owner or lessee of a specific property where a pesticide has
been applied for a private agriculture or forestry production
operation, or other nonpublic facility on private property.
Nothing in this subsection shall limit the use that may be made
of such information for regulatory purposes or its admissibility
in any enforcement proceedings. - }
    { - (30) - }   { + (29) + } Sensitive business records,
capital development plans or financial or commercial information
of Oregon Corrections Enterprises that is not customarily
provided to business competitors.
  SECTION 4.  { + The amendments to section 8, chapter 1059,
Oregon Laws 1999, by section 2 of this 2001 Act apply to data
obtained by the State Department of Agriculture on or after the
effective date of this 2001 Act. + }
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