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 2129
A-Engrossed
Senate Bill 647
Ordered by the Senate April 17
Including Senate Amendments dated April 17
Sponsored by Senator BROWN
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.
{ - Requires that public bodies that have records containing
personal information, and persons that in course of business,
vocation or occupation acquire records containing personal
information, not dispose of records unless public bodies or
persons shred records or take certain other actions to prevent
access to personal information. - }
{ + Requires financial institutions, medical businesses and
tax preparation businesses to take specific types of actions to
render personal information unusable before disposing of records.
Provides that violation is unlawful trade practice. + }
{ - Creates cause of action against public bodies for damages
suffered by reason of failure to shred records or otherwise
prevent access to personal information in records after
disposal. - } Creates { + , on behalf of individual whose
personal information was used and on behalf of financial
institution, medical business or tax preparation business that
disposed of record, + } cause of action against person that uses
personal information in { - records - } { + record + } after
disposal.
A BILL FOR AN ACT
Relating to personal information in records; creating new
provisions; and amending ORS 646.608.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + As used in sections 1 to 3 of this 2001 Act:
(1) 'Financial institution' has the meaning given that term in
ORS 706.008, except that 'financial institution' also includes
any person that issues credit cards as defined in ORS 646.893.
(2) 'Medical business' means any person that in the course of
business possesses information, other than personnel records,
relating to an individual's physical or mental health, medical
history or medical treatment.
(3) 'Personal information' means any of the following:
(a) Personally identifiable data about an individual's medical
condition.
(b) Personally identifiable data that contain an individual's
account or customer number, account balance, balance owing,
credit balance or credit limit, if the data relate to an
individual's account or transaction with a financial institution.
(c) Personally identifiable data provided by an individual to a
financial institution upon opening an account or applying for a
loan or credit.
(d) Personally identifiable data about an individual's federal,
state or local tax returns.
(4) 'Personally identifiable data' means information that is
capable of being associated with a particular individual through
one or more identifiers or through other information or
circumstances.
(5) 'Record' means any material on which written, drawn,
printed, spoken, visual or electromagnetic information is
recorded or preserved, regardless of physical form or
characteristics.
(6) 'Tax preparation business' means any person that is in the
business of preparing federal, state or local tax returns or in
the business of providing counsel to other persons regarding
federal, state or local tax returns. + }
SECTION 2. { + (1) A financial institution, medical business
or tax preparation business may not dispose of a record
containing personal information unless the financial institution,
medical business or tax preparation business does one of the
following:
(a) Shreds the record before disposing of the record.
(b) Erases the personal information contained in the record
before disposing of the record.
(c) Modifies the record to make the personal information
unreadable before disposing of the record.
(d) Takes actions that it reasonably believes will ensure that
no unauthorized person will have access to the personal
information contained in the record for the period between
disposal of the record and destruction of the record.
(2) The provisions of this section do not apply to any sale of
a record or to the transfer of a record in the regular course of
business. + }
SECTION 3. { + (1) Violation of the prohibitions of section 2
of this 2001 Act is an unlawful trade practice subject to ORS
646.605 to 646.652.
(2) Any person that uses personal information contained in a
record that was disposed of by a financial institution, medical
business or tax preparation business is liable to the individual
who is the subject of the personal information, and is liable to
the financial institution, medical business or tax preparation
business that disposed of the record, for any damages resulting
from the use of the personal information. This subsection does
not apply to a person that uses personal information with the
consent of the individual who is the subject of the personal
information. + }
SECTION 4. ORS 646.608 is amended to read:
646.608. (1) A person engages in an unlawful practice when in
the course of the person's business, vocation or occupation the
person does any of the following:
(a) Passes off real estate, goods or services as those of
another.
(b) Causes likelihood of confusion or of misunderstanding as to
the source, sponsorship, approval, or certification of real
estate, goods or services.
(c) Causes likelihood of confusion or of misunderstanding as to
affiliation, connection, or association with, or certification
by, another.
(d) Uses deceptive representations or designations of
geographic origin in connection with real estate, goods or
services.
(e) Represents that real estate, goods or services have
sponsorship, approval, characteristics, ingredients, uses,
benefits, quantities or qualities that they do not have or that a
person has a sponsorship, approval, status, qualification,
affiliation, or connection that the person does not have.
(f) Represents that real estate or goods are original or new if
they are deteriorated, altered, reconditioned, reclaimed, used or
secondhand.
(g) Represents that real estate, goods or services are of a
particular standard, quality, or grade, or that real estate or
goods are of a particular style or model, if they are of another.
(h) Disparages the real estate, goods, services, property or
business of a customer or another by false or misleading
representations of fact.
(i) Advertises real estate, goods or services with intent not
to provide them as advertised, or with intent not to supply
reasonably expectable public demand, unless the advertisement
discloses a limitation of quantity.
(j) Makes false or misleading representations of fact
concerning the reasons for, existence of, or amounts of price
reductions.
(k) Makes false or misleading representations concerning credit
availability or the nature of the transaction or obligation
incurred.
(L) Makes false or misleading representations relating to
commissions or other compensation to be paid in exchange for
permitting real estate, goods or services to be used for model or
demonstration purposes or in exchange for submitting names of
potential customers.
(m) Performs service on or dismantles any goods or real estate
when not authorized by the owner or apparent owner thereof.
(n) Solicits potential customers by telephone or door to door
as a seller unless the person provides the information required
under ORS 646.611.
(o) In a sale, rental or other disposition of real estate,
goods or services, gives or offers to give a rebate or discount
or otherwise pays or offers to pay value to the customer in
consideration of the customer giving to the person the names of
prospective purchasers, lessees, or borrowers, or otherwise
aiding the person in making a sale, lease, or loan to another
person, if earning the rebate, discount or other value is
contingent upon occurrence of an event subsequent to the time the
customer enters into the transaction.
(p) Makes any false or misleading statement about a prize,
contest or promotion used to publicize a product, business or
service.
(q) Promises to deliver real estate, goods or services within a
certain period of time with intent not to deliver them as
promised.
(r) Organizes or induces or attempts to induce membership in a
pyramid club.
(s) Makes false or misleading representations of fact
concerning the offering price of, or the person's cost for real
estate, goods or services.
(t) Concurrent with tender or delivery of any real estate,
goods or services fails to disclose any known material defect or
material nonconformity.
(u) Engages in any other unfair or deceptive conduct in trade
or commerce.
(v) Violates any of the provisions relating to auction sales,
auctioneers or auction marts under ORS 698.640, whether in a
commercial or noncommercial situation.
(w) Violates the provisions of ORS 803.375, 803.385 or 815.410
to 815.430.
(x) Violates ORS 646.850 (1).
(y) Violates any requirement of ORS 646.661 to 646.686.
(z) Violates the provisions of ORS 128.801 to 128.898.
(aa) Violates ORS 646.883 or 646.885.
(bb) Violates any provision of ORS 646.195.
(cc) Violates ORS 646.569.
(dd) Violates the provisions of ORS 646.859.
(ee) Violates ORS 759.290.
(ff) Violates ORS 646.872.
(gg) Violates ORS 646.553 or 646.557 or any rule adopted
pursuant thereto.
(hh) Violates ORS 646.563.
(ii) Violates ORS 759.690 or any rule adopted pursuant thereto.
(jj) Violates the provisions of ORS 759.705, 759.710 and
759.720 or any rule adopted pursuant thereto.
(kk) Violates ORS 646.892 or 646.894.
(LL) Violates any provision of ORS 646.249 to 646.259.
(mm) Violates ORS 646.384.
(nn) Violates ORS 646.871.
(oo) Violates ORS 822.046.
(pp) Violates ORS 128.001.
(qq) Violates ORS 646.649 (2) to (4).
(rr) Violates ORS 646.877 (2) to (5).
(ss) Violates ORS 87.686.
(tt) Violates ORS 646.651.
(uu) Violates ORS 646.879.
{ + (vv) Violates section 2 of this 2001 Act. + }
(2) A representation under subsection (1) of this section or
ORS 646.607 may be any manifestation of any assertion by words or
conduct, including, but not limited to, a failure to disclose a
fact.
(3) In order to prevail in an action or suit under ORS 646.605
to 646.652, a prosecuting attorney need not prove competition
between the parties or actual confusion or misunderstanding.
(4) No action or suit shall be brought under subsection (1)(u)
of this section unless the Attorney General has first established
a rule in accordance with the provisions of ORS 183.310 to
183.550 declaring the conduct to be unfair or deceptive in trade
or commerce.
SECTION 5. { + (1) Except as provided in subsection (2) of
this section, sections 1 to 3 of this 2001 Act, and the
amendments to ORS 646.608 by section 4 of this 2001 Act, apply
only to records disposed of on or after the effective date of
this 2001 Act.
(2) Section 3 (2) of this 2001 Act applies to any use of
records or personal information that occurs on or after the
effective date of this 2001 Act, without regard to whether the
records containing personal information were disposed of before,
on or after the effective date of this 2001 Act. + }
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