2017 Action on Public Records Law, Part 2: Laws Addressing Exemptions

Not all information held by public bodies should be produced.  Confidential medical records and records of current undercover police operations are two examples.  Consequently, there are exceptions to the rule that records retained by the government must be disclosed upon request.  Currently, more than 550 “exemptions” exist in Oregon law.

Ideologically, exemptions bother people who believe in more openness and disagree with many of the categories of exemptions.  Practically, exemptions require custodians of records to confirm that they may and should produce records.  Custodians fear violating laws AGAINST disclosure, which, in turn causes delay in producing records and extra costs if they must employ a lawyer to help them.

HB 2101 (2017) targets exemptions in three key ways.

First, it creates a “Sunshine Committee” to review nearly all the state law exemptions (as compared to federal law exemptions).  This will be a multi-year effort because of the great number or exemptions.  By July 1 of each even-numbered year, the Sunshine Committee must report on the exemptions it has reviewed and whether to amend or repeal them.  Also, the Committee must study and identify other impediments to transparency in public process and government and recommend ways to improve transparency and rapid fulfillment of public records requests.

Second, Legislative Counsel – the nonpartisan lawyers who help lawmakers draft laws – must alert the Sunshine Committee and others when any legislative committee proposes a law that would create another exemption or otherwise impact disclosure of public records.

Third, HB 2101 creates a separate public records subcommittee, consisting of lawmakers from both houses, to which the Sunshine Committee and Legislative Counsel must report.  The public records subcommittee must act on the Sunshine Committee’s recommendations within two months, by September 1.  One would expect the Senate and the House of Representatives to give great weight to the recommendations of the joint subcommittee on pubic records.

SB 481 (2017) requires the Attorney General to maintain and update her public catalog of exemptions with references to the statutes and Oregon’s of Supreme Court or Court of Appeals interpreting the statute.  Legislative Counsel must update the Attorney General whenever Oregon enacts a new law that impacts public records exemptions or disclosure requirements.

SB 481 also helps smooth the exemption speed bump by immunizing a public body from liability that otherwise might be claimed for a wrongful disclosure, so long as the disclosure was in good faith and not “affirmatively prohibited” by law or court order applicable to the public body.  The goal is to lessen the fear of disclosing records.

Public bodies also want to avoid waiving evidentiary privileges, such as on attorney-client communications.  SB 481 says disclosure under the Oregon’s Public Records Law does not waive a public body’s right to assert evidentiary privileges later.

© 2017 by Jeff Merrick