74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
SA to SB 671
LC 1752/SB 671-8
SENATE AMENDMENTS TO
SENATE BILL 671
By COMMITTEE ON JUDICIARY
April 5
In line 2 of the printed bill, after 'records' insert ';
creating new provisions; amending ORS 40.225, 192.460 and
192.502; and declaring an emergency'.
Delete lines 4 through 11 and insert:
' { + 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 not
exempt from 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 Oregon law.
' { + (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 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 and Science University that is
not customarily provided to business competitors.
' (21) Records of Oregon Health and Science 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
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 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 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. + } ' .
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