Bill Text: OR HB2244 | 2011 | Regular Session | Engrossed

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Relating to public records; and declaring an emergency.

Spectrum: Unknown

Status: (Passed) 2011-08-02 - Chapter 645, (2011 Laws): Effective date August 2, 2011. [HB2244 Detail]

Download: Oregon-2011-HB2244-Engrossed.html

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     76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session

SA to A-Eng. HB 2244

LC 773/HB 2244-A9

                      SENATE AMENDMENTS TO
                   A-ENGROSSED HOUSE BILL 2244

 By COMMITTEE ON GENERAL GOVERNMENT, CONSUMER AND SMALL BUSINESS
                           PROTECTION

                             June 8

  On page 1 of the printed A-engrossed bill, line 2, delete the
first 'and' and after '192.005' delete the rest of the line and
insert 'and 192.502; and declaring an emergency.'.
  Delete lines 4 through 24 and delete pages 2 through 12 and
insert:
  '  { +  SECTION 1. + } ORS 192.005 is amended to read:
  ' 192.005. As used in ORS 192.005 to 192.170, unless the
context requires otherwise:
  ' (1) 'Archivist' means the State Archivist.
  ' (2) 'Photocopy' includes a photograph, microphotograph and
any other reproduction on paper or film in any scale.
  ' (3) 'Photocopying' means the process of reproducing, in the
form of a photocopy, a public record or writing.
  ' (4) 'Political subdivision' means a city, county, district or
any other municipal or public corporation in this state.
  ' (5) 'Public record'   { - includes, but is not limited to, a
document, book, paper, photograph, file, sound recording or
machine readable electronic record, regardless of physical form
or characteristics, made, received, filed or recorded in
pursuance of law or in connection with the transaction of public
business, whether or not confidential or restricted in use.
'Public record' - }  { + :
  ' (a) Means any information that:
  ' (A) Is prepared, owned, used or retained by a state agency or
political subdivision;
  ' (B) Relates to an activity, transaction or function of a
state agency or political subdivision; and
  ' (C) Is necessary to satisfy the fiscal, legal, administrative
or historical policies, requirements or needs of the state agency
or political subdivision.
  ' (b) + } Does not include:
  '  { - (a) - }  { +  (A) + } Records of the Legislative
Assembly, its committees, officers and employees.
  '  { - (b) - }  { +  (B) + } Library and museum materials made
or acquired and preserved solely for reference or exhibition
purposes.
  '  { - (c) - }  { +  (C) + } Records or information concerning
the location of archaeological sites or objects as those terms
are defined in ORS 358.905.
  '  { - (d) - }  { +  (D) + } Extra copies of a document,
preserved only for convenience of reference.
  '  { - (e) - }  { +  (E) + } A stock of publications.
  '  { - (f) - }  { +  (F) + } Messages on voice mail or on other
telephone message storage and retrieval systems.
  '  { +  (G) Records of the Judicial Department or its officers
and employees.
  ' (H) Spoken communication that is not recorded. + }
  ' (6) 'State agency'  { +  :

  ' (a) + } Means any state officer, department, board  { - , - }
 { +  or + } commission   { - or court - }  created by the
Constitution or statutes of this state.   { - However, 'state
agency' - }
  '  { +  (b) + } Does not include { + :
  ' (A) + } The Legislative Assembly or its committees, officers
and employees { + ; or
  ' (B) The Judicial Department or its officers and
employees + }.
  '  { +  SECTION 2. + }  { + Sections 3 and 4 of this 2011 Act
are added to and made a part of ORS 192.005 to 192.170. + }
  '  { +  SECTION 3. + }  { + (1) Each state agency shall have a
written policy that sets forth the agency's use, retention and
ownership of public records. The policy shall ensure that public
records are being maintained and managed consistently within the
agency from the time of creation of a public record to the time
of final disposition of the public record.
  ' (2) Each state agency shall submit the written policy and any
subsequent amendment of the policy to the State Archivist for
approval before the policy takes effect or the amendment to the
policy takes effect. + }
  '  { +  SECTION 4. + }  { + Each state agency or political
subdivision shall maintain a public record or accurate copy of a
public record in accordance with a retention schedule authorized
under ORS 192.105 or section 3 of this 2011 Act, without regard
to the technology or medium used to create or communicate the
record. + }
  '  { +  SECTION 5. + }  { + Sections 3 and 4 of this 2011 Act
and the amendments to ORS 192.005 by section 1 of this 2011 Act
become operative on January 1, 2012. + }
  '  { +  SECTION 6. + } ORS 192.502, as amended by section 15,
chapter 76, Oregon Laws 2010, 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 ORS 192.423, 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 of or submitted to the State Treasurer, the
Oregon Investment Council or the agents of the treasurer or the
council relating to active or proposed publicly traded
investments under ORS chapter 293, including but not limited to
records regarding the acquisition, exchange or liquidation of the
investments. For the purposes of this subsection:
  ' (a) The exemption does not apply to:
  ' (A) Information in investment records solely related to the
amount paid directly into an investment by, or returned from the
investment directly to, the treasurer or council; or
  ' (B) The identity of the entity to which the amount was paid
directly or from which the amount was received directly.
  ' (b) An investment in a publicly traded investment is no
longer active when acquisition, exchange or liquidation of the
investment has been concluded.
  ' (14)(a) Records of or submitted to the State Treasurer, the
Oregon Investment Council, the Oregon Growth Account Board or the
agents of the treasurer, council or board relating to actual or
proposed investments under ORS chapter 293 or 348 in a privately
placed investment fund or a private asset including but not
limited to records regarding the solicitation, acquisition,
deployment, exchange or liquidation of the investments including
but not limited to:
  ' (A) Due diligence materials that are proprietary to an
investment fund, to an asset ownership or to their respective
investment vehicles.
  ' (B) Financial statements of an investment fund, an asset
ownership or their respective investment vehicles.
  ' (C) Meeting materials of an investment fund, an asset
ownership or their respective investment vehicles.
  ' (D) Records containing information regarding the portfolio
positions in which an investment fund, an asset ownership or
their respective investment vehicles invest.
  ' (E) Capital call and distribution notices of an investment
fund, an asset ownership or their respective investment vehicles.
  ' (F) Investment agreements and related documents.
  ' (b) The exemption under this subsection does not apply to:
  ' (A) The name, address and vintage year of each privately
placed investment fund.
  ' (B) The dollar amount of the commitment made to each
privately placed investment fund since inception of the fund.
  ' (C) The dollar amount of cash contributions made to each
privately placed investment fund since inception of the fund.
  ' (D) The dollar amount, on a fiscal year-end basis, of cash
distributions received by the State Treasurer, the Oregon
Investment Council, the Oregon Growth Account Board or the agents
of the treasurer, council or board from each privately placed
investment fund.
  ' (E) The dollar amount, on a fiscal year-end basis, of the
remaining value of assets in a privately placed investment fund
attributable to an investment by the State Treasurer, the Oregon
Investment Council, the Oregon Growth Account Board or the agents
of the treasurer, council or board.
  ' (F) The net internal rate of return of each privately placed
investment fund since inception of the fund.
  ' (G) The investment multiple of each privately placed
investment fund since inception of the fund.
  ' (H) The dollar amount of the total management fees and costs
paid on an annual fiscal year-end basis to each privately placed
investment fund.
  ' (I) The dollar amount of cash profit received from each
privately placed investment fund on a fiscal year-end basis.
  ' (15) 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.
  ' (16) Reports of unclaimed property filed by the holders of
such property to the extent permitted by ORS 98.352.
  ' (17)(a) The following records, communications and information
submitted to the Oregon Business Development Commission, the
Oregon Business 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 subparagraph 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.
  ' (b) The following records, communications and information
submitted to the State Department of Energy by applicants for tax
credits:
  ' (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 subparagraph 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.
  ' (18) 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.

  ' (19) 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.
  ' (20) 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.
  ' (21) Sensitive business records or financial or commercial
information of the Oregon Health and Science University that is
not customarily provided to business competitors.
  ' (22) Records of Oregon Health and Science University
regarding candidates for the position of president of the
university.
  ' (23) The records of a library, including:
  ' (a) Circulation records, showing use of specific library
material by a named person;
  ' (b) The name of a library patron together with the address or
telephone number of the patron; and
  ' (c) The electronic mail address of a patron.
  ' (24) 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.
  ' (25) 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.
  ' (26) 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.
  ' (27) 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.
  ' (28) 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.
  ' (29) 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.
  ' (30) Sensitive business records, capital development plans or
financial or commercial information of Oregon Corrections
Enterprises that is not customarily provided to business
competitors.
  ' (31) 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 86A.095 to 86A.198, 86A.990, 86A.992,
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, 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.
  ' (32) A county elections security plan developed and filed
under ORS 254.074.
  ' (33) 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.
  ' (34) 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.
  ' (35)(a) Employer account records of the State Accident
Insurance Fund Corporation.
  ' (b) As used in this subsection, 'employer account records '
means all records maintained in any form that are specifically
related to the account of any employer insured, previously
insured or under consideration to be insured by the State
Accident Insurance Fund Corporation and any information obtained
or developed by the corporation in connection with providing,
offering to provide or declining to provide insurance to a
specific employer. 'Employer account records' includes, but is
not limited to, an employer's payroll records, premium payment
history, payroll classifications, employee names and
identification information, experience modification factors, loss
experience and dividend payment history.
  ' (c) The exemption provided by this subsection may not serve
as the basis for opposition to the discovery documents in
litigation pursuant to applicable rules of civil procedure.
  ' (36)(a) Claimant files of the State Accident Insurance Fund
Corporation.
  ' (b) As used in this subsection, 'claimant files' includes,
but is not limited to, all records held by the corporation
pertaining to a person who has made a claim, as defined in ORS
656.005, and all records pertaining to such a claim.
  ' (c) The exemption provided by this subsection may not serve
as the basis for opposition to the discovery documents in
litigation pursuant to applicable rules of civil procedure.
  ' (37) Except as authorized by ORS 408.425, records that
certify or verify an individual's discharge or other separation
from military service.
  '  { +  (38) Records of or submitted to a domestic violence
service or resource center that relate to the name or personal
information of an individual who visits a center for service,
including the date of service, the type of service received,
referrals or contact information or personal information of a
family member of the individual. As used in this subsection,
'domestic violence service or resource center' means an entity,
the primary purpose of which is to assist persons affected by
domestic or sexual violence by providing referrals, resource
information or other assistance specifically of benefit to
domestic or sexual violence victims. + }
  '  { +  SECTION 7. + }  { + This 2011 Act being necessary for
the immediate preservation of the public peace, health and
safety, an emergency is declared to exist, and this 2011 Act
takes effect on its passage. + } ' .
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