Public Records and Meetings Law

1. Public Records and Meetings Law Kevin Neely Oregon Department of Justice

2. Public Records • What is a public body? ORS 192.410(3) • “Public body” includes every state officer, agency, department, division, bureau, board and commission; every county and city governing body, school district, special district, municipal corporation, and any board, department, commission, council, or agency thereof; and any other public agency of this state.

3. Public Records • What is a public record? ORS 192.410(4) • “Public record” includes any writing containing information relating to the conduct of the public’s business, including but not limited to court records, mortgages, and deed records, prepared, owned, used or retained by a public body regardless of physical form or characteristics.

4. Public Records • What is a public record? ORS 192.410(6) • “Writing” means handwriting, typewriting, printing, photographing and every means of recording, including letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, files, facsimiles or electronic recordings.

5. Public Records • Requesting a public record • Contact the records custodian • A public body mandated, directly or indirectly, to create, maintain, care for or control a public record. “Custodian” does not include a public body that has custody of a public record as an agent of another public body that is the custodian unless the public record is not otherwise available.

6. Public Records • Requesting a public record • Submit a request • The custodian of the records may adopt reasonable rules necessary for the protection of the records and to prevent interference with the regular discharge of duties of the custodian. • The public body may establish fees reasonably calculated to reimburse it for its actual cost in making such records available.

7. Public Records • Requesting a public record • www.open-oregon.com

8. Public Records • The public body’s responsibility • Furnish proper and reasonable opportunities for inspection and examination of the records in the office of the custodian and reasonable facilities for making memoranda or abstracts therefrom, during the usual business hours, to all persons having occasion to make examination of them.

9. Public Records • The public body’s responsibility • If the public record is maintained in machine readable or electronic form, the custodian shall furnish proper and reasonable opportunity to assure access. • Custodian must respond in a “reasonable” amount of time.

10. Public Records • Preparing the public body for a request • Develop an agency protocol • Centralize response • Train all employees in public records law • Mark confidential or draft documents • Facilitate PR searches through filing systems and electronic recordkeeping

11. Public Records • Responding to the request • Provide the requestor with a time frame and describe the process • Talk to the manager • Talk to the agency attorney if necessary • Determine the possible cost • If cost is over $25, provide written notice to the requestor

12. Public Records • Responding to the request • Search for records • Review for exempt material • Redact as necessary • Provide access to requestor

13. Public Records • Responding to the request • Public body is not required to create a new record • Public body cannot charge for attorney time spent determining if the record is exempt from disclosure • Attorney time required to redact documents can be recovered from the requestor

14. Public Records • Public records petitions • Where do I send it? • Attorney General • State agencies • State boards • State commissions

15. Public Records • Public records petitions • Where do I send it? • District Attorney • City • County • School districts • Special districts

16. Public Records • Public records petitions • Where do I send it? • Independently elected officials are not subject to public records petitions (ORS 192.465)

17. Public Records • Public records petitions • How is the request handled? • The basics • AG or DA has seven days • No provision for recovery of costs

18. Public Records • Public records petitions • What if the AG is wrong? • Declaratory action • Attorney fees available • Legislative action

19. Public Records • The exemptions (ORS 192.501 & 192.502) • Conditional exemptions • The balancing test

20. Public Records • The exemptions (ORS 192.501 & 192.502) • Unconditional exemptions • No balancing test required • Advisory communications • Personal information • Information submitted in confidence • Records confidential elsewhere in law • Many other exemptions

21. Public Records • The exemptions • Key law enforcement exemptions

22. Public Records • The exemptions • Criminal investigatory material ORS 192.501(3) • Covers all information “compiled for criminal law purposes.” • Exemption does not expire when litigation is completed or abandoned.

23. Public Records • The exemptions • Criminal investigatory material ORS 192.501(3) • If challenged, public body must demonstrate that disclosure would: • Interfere with law enforcement proceedings • Deprive a person of right to a fair trial • Constitute an unwarranted invasion of privacy • Compromise a confidential source

24. Public Records • The exemptions • Criminal investigatory material ORS 192.501(3) • If challenged, public body must demonstrate that disclosure would: • Compromise investigative techniques or procedures, or • Endanger the live or physical safety of law enforcement personnel.

25. Public Records • The exemptions • Arrest records • Treated differently than other criminal investigatory material • Information must be disclosed unless there is a clear need to delay disclosure. • Law provides a non-exclusive list of information contained in arrest records:

26. Public Records • The exemptions • Arrest records • Law provides a non-exclusive list of information contained in arrest records: • Name, age, residence, employment, marital status and similar biographical information • Offense • Conditions of release • Identity and biographical information of complainant and victim (except child abuse)

27. Public Records • The exemptions • Arrest records • Law provides a non-exclusive list of information contained in arrest records: • Identity of investigating and arresting agency • Length of investigation • Time, place, etc. of arrest, and • Information necessary to enlist public assistance in apprehending other fugitives.

28. Public Records • The exemptions • Juvenile records • “Arrest record” term does not apply to juvenile records. • Covered by ORS 419A.255(1), (5), (6) and ORS 419A.239(2)

29. Public Records • The exemptions • Juvenile records • ORS 419A.255(1) • “The record of the case shall be withheld from public inspection but is open to inspection by the child, ward, youth, youth offender, parent, guardian, court appointed special advocate, surrogate or a person allowed to intervene in a proceeding involving the child, ward, youth or youth offender, and their attorneys.”

30. Public Records • The exemptions • Juvenile records • ORS 419A.255(5) • The following are not confidential and not exempt from disclosure: • The name and date of birth of the youth or youth offender; • The basis for the juvenile court’s jurisdiction over the youth or youth offender; • The date, time and place of any juvenile court proceeding in which the youth or youth offender is involved; • The act alleged in the petition that if committed by an adult would constitute a crime if jurisdiction is based on ORS 419C.005;

31. Public Records • The exemptions • Juvenile records • ORS 419A.255(5) • The following are not confidential and not exempt from disclosure: • That portion of the juvenile court order providing for the legal disposition of the youth or youth offender when jurisdiction is based on ORS 419C.005; • The names and addresses of the youth or youth offender’s parents or guardians; and • The register described in ORS 7.020 when jurisdiction is based on ORS 419C.005.

32. Public Records • The exemptions • Juvenile records • ORS 419A.255(6): • The following information 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: • The youth’s name and age and whether the youth is employed or in school; • The youth offense for which the youth was taken into custody; • The name and age of the adult complaining party and the adult victim, unless the disclosure of such information is otherwise prohibited or restricted;

33. Public Records • The exemptions • Juvenile records • ORS 419A.255(6): • The following information 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: • The identity of the investigating and arresting agency; and • The time and place that the youth was taken into custody and whether there was resistance, pursuit or a weapon used in taking the youth into custody.

34. Public Records • The exemptions • Personnel discipline actions ORS 192.501(12) • Only applies to completed disciplinary actions when a sanction is imposed. • Does not apply when an employee resigns • Policy is to “protect the public employee from ridicule for having been disciplined but does not shield the government from public efforts to obtain knowledge about its processes”

35. Public Records • The exemptions • Personnel discipline actions ORS 192.501(12) • Balancing test • Does conduct constitute a criminal offense? • Employee’s position • Basis for disciplinary action, and • Extent to which information has already been made public.

36. Public Records • The exemptions • ORS 181.854 • Specific information about public safety personnel • Personnel investigations that do not result in discipline • Personnel photographs

37. Public Records • The exemptions • Internal advisory communications ORS 192.502(1) • Communication within or between public bodies • Advisory nature, preliminary to any final action • Covers non-factual materials, and • Public interest in frank communication outweighs public interest in disclosure

38. Public Records • The exemptions • Personal privacy exemption ORS 192.502(2) • The mere fact that “the information would not be shared with strangers is not enough to avoid disclosure.” • An invasion of privacy is unreasonable where “an ordinary reasonable person would deem [it] highly offensive.”

39. Public Records • The exemptions • Personal privacy exemption ORS 192.502(2) • Performance evaluations • Salary information • Benefits • “any privacy rights that public officials have as to the performance of their public duties must generally be subordinated to the right of citizens to monitor what elected and appointed officials are doing on the job.” – OR Court of Appeals

40. Public Records • The exemptions • Confidential submissions ORS 192.502(4) • The informant must have submitted the information on the condition it would be kept confidential • Informant must not have been required by law to submit the information • Information must be of a nature that reasonably should be kept confidential

41. Public Records • The exemptions • Confidential submissions ORS 192.502(4) • The public body must show that it has obliged itself in good faith not to disclose the information, and • Disclosure of the information must cause harm to the public interest.

42. Public Records • The exemptions • Confidential submissions ORS 192.502(4) • If a report made is to a law enforcement officer about a law violation, the identity of the informant may be exempt from disclosure under ORS 40.275 or Rule 510 of the Oregon Evidence Code.

43. Public Meetings • Meetings 101

44. Public Meetings • The Flowchart Does the body have two or more members? Is it a public body? Is it a “governing body”? Is a quorum required? Is it meeting to make or deliberate toward a decision?

45. Public Meetings • What is a public body? • Governing body • Authority to make decision for public body • Authority to make a recommendation to a public body

46. Public Meetings • Requirements • Notice • Location • Accessibility • Public attendance • Voting • Minutes

47. Public Meetings • Executive session • ORS 192.660 • GSPC has oversight

48. Public Meetings • Enforcement of law • GSPC – executive sessions • Declaratory action • The remedy