Transcript Public Records and Meetings Law

Public Records and
Meetings Law
Kevin Neely
Oregon Department of Justice
Public Records
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What is a public body? ORS 192.410(3)
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“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.
Public Records
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What is a public record? ORS 192.410(4)
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“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.
Public Records
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What is a public record? ORS 192.410(6)
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“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.
Public Records
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Requesting a public record
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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.
Public Records
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Requesting a public record
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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.
Public Records
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Requesting a public record
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www.open-oregon.com
Public Records
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The public body’s responsibility
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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.
Public Records
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The public body’s responsibility
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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.
Public Records
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Preparing the public body for a request
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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
Public Records
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Responding to the request
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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
Public Records
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Responding to the request
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Search for records
Review for exempt material
Redact as necessary
Provide access to requestor
Public Records
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Responding to the request
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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
Public Records
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Public records petitions
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Where do I send it?
Attorney General
State agencies
 State boards
 State commissions
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Public Records
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Public records petitions
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Where do I send it?
District Attorney
City
 County
 School districts
 Special districts
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Public Records
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Public records petitions
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Where do I send it?
Independently elected officials are not subject
to public records petitions (ORS 192.465)
Public Records
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Public records petitions
How is the request handled?
The basics
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AG or DA has seven days
No provision for recovery of costs
Public Records
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Public records petitions
What if the AG is wrong?
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Declaratory action
Attorney fees available
Legislative action
Public Records
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The exemptions (ORS 192.501 & 192.502)
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Conditional exemptions
The balancing test
Public Records
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The exemptions (ORS 192.501 & 192.502)
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Unconditional exemptions
No balancing test required
Advisory communications
 Personal information
 Information submitted in confidence
 Records confidential elsewhere in law
 Many other exemptions
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Public Records
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The exemptions
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Key law enforcement exemptions
Public Records
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The exemptions
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Criminal investigatory material
ORS 192.501(3)
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Covers all information “compiled for criminal law
purposes.”
Exemption does not expire when litigation is
completed or abandoned.
Public Records
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The exemptions
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Criminal investigatory material
ORS 192.501(3)
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1.
2.
3.
4.
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
Public Records
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The exemptions
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Criminal investigatory material
ORS 192.501(3)
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5.
6.
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.
Public Records
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The exemptions
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Arrest records
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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:
Public Records
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The exemptions
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Arrest records
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Law provides a non-exclusive list of information
contained in arrest records:
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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)
Public Records
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The exemptions
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Arrest records
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Law provides a non-exclusive list of information
contained in arrest records:
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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.
Public Records
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The exemptions
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Juvenile records
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“Arrest record” term does not apply to juvenile
records.
Covered by ORS 419A.255(1), (5), (6) and ORS
419A.239(2)
Public Records
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The exemptions
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Juvenile records
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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.”
Public Records
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The exemptions
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Juvenile records
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ORS 419A.255(5)
The following are not confidential and not
exempt from disclosure:
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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
Public Records
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The exemptions
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Juvenile records
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ORS 419A.255(5)
The following are not confidential and not
exempt from disclosure:
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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.
Public Records
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The exemptions
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Juvenile records
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ORS 419A.255(6):
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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:
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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;
Public Records
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The exemptions
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Juvenile records
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ORS 419A.255(6):
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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:
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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.
Public Records
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The exemptions
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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”
Public Records
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The exemptions
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Personnel discipline actions
ORS 192.501(12)
Balancing test
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Does conduct constitute a criminal offense?
Employee’s position
Basis for disciplinary action, and
Extent to which information has already been
made public.
Public Records
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The exemptions
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ORS 181.854
Specific information about public safety
personnel
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Personnel investigations that do not result in
discipline
Personnel photographs
Public Records
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The exemptions
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Internal advisory communications
ORS 192.502(1)
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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
Public Records
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The exemptions
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Personal privacy exemption
ORS 192.502(2)
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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.”
Public Records
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The exemptions
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Personal privacy exemption
ORS 192.502(2)
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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
Public Records
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The exemptions
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Confidential submissions
ORS 192.502(4)
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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
Public Records
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The exemptions
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Confidential submissions
ORS 192.502(4)
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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.
Public Records
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The exemptions
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Confidential submissions
ORS 192.502(4)
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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.
Public Meetings
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Meetings 101
Public Meetings
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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?
Public Meetings
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What is a public body?
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Governing body
Authority to make decision for public body
Authority to make a recommendation to a
public body
Public Meetings
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Requirements
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Notice
Location
Accessibility
Public attendance
Voting
Minutes
Public Meetings
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Executive session
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ORS 192.660
GSPC has oversight
Public Meetings
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Enforcement of law
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GSPC – executive sessions
Declaratory action
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The remedy