Overview

Oregon’s public records law is an interesting piece of FOIA legislation, with many in the state calling for more teeth and fewer loopholes and vague language. An agency in Oregon does not have a set time period, instead having a “reasonable” amount of time to fulfill requests. This causes requestors to have to come up with workarounds when agencies will not respond and it becomes unclear if the request was rejected. Enforcement in Oregon is almost nonexistent, with the worst case for a noncompliant agency being forced to complete the request and adjust fees. No records ombudsman does not help matters. Fees must be kept to actual cost, although it is up to each agency to determine their own actual cost of labor, with no statute dictating pricing of pages, electronic records, or other specifications.

Exemptions are clearly defined and there are different categories regarding documents that can be discretionarily disclosed and records that are deemed prohibited to be released. All in all state records exemptions total over 500 and can be difficult to track. However, the text of the statute only contains 7, and the rest of the provisions are spread out across Oregon law. The only appeals option in the state is to go straight to courts instead of the Attorney General’s Office.

The Law

• No residency requirement
• An unclear response time limit causes problems when looking to appeal
• Appeal to courts

Supplemental

OR court records

OR records retention schedule

The Details

Can you submit a request if you’re not a resident?

Yes.

To whom does this apply?

Executive?

Yes.

Legislative?

Yes.

Judicial?

Yes.

Who is exempted?

State legislators are exempt for records requests. Oregon has a six part test to determine if an agency or board is subject to the FOIL. It is as follows: (1) Was the entity created by government? (2) Is the function of the entity one traditionally performed by government or privately? (3) Can the entity bind government with its decisions or does it only make recommendations? (4) What is the nature and level of governmental financial and nonfinancial support? (5) What is the scope of governmental control over the entity’s activities and operations? and (6) Are the entity’s officers or staff public employees?

Relevant case law: Marks v. McKenzie High School Fact Finding Team, 319 Or 451, 878 P.2d 417 (1994)

Is there a designated records custodian?

No.

How long do they have to respond?

This is a notably controversial aspect of OPRL. The language of the law states that agencies must be given “reasonable opportunity to inspect and copy records.” The state AG has held that this does mean that the documents must be provided in a reasonable amount of time. The lack of a specific waiting period creates problems when requestors are not sure if the agency has denied them or not. Oregon requestors get around this by citing a date that they will consider the request denied if the agency has not responded. This makes appealing much easier when you can cite a specific time period that the agency ignored. There are no relevant cases that have set precedents here yet but efforts to change this part of the law will likely continue.

Does the agency have to give you a tracking number or estimated date of completion?

No.

Can they ask why you ask?

Agencies can ask why you’re asking for records, but only in two contexts: when you are trying to overcome an exemption on the basis of a public interest and when you have requested a public interest fee waiver/reduction.

What enforcement?

Enforcement in Oregon is weak. With no state public records officer and no penalties for misbehaving agencies other than recalculation of fees, enforcement is something Oregon could afford to work on.

Fees?

Fees must be kept to the actual costs of searching for and copying records. If the fee will exceed $25 the agency must first give you an estimate and ask if you want to proceed.

Are there fee waivers for media requests or those made in the public interest?

Yes, there are waivers for requests that benefit the public. The Oregon DOJ recently overturned a rule requiring certain state agencies to charge regardless if waivers applied.

Attorney’s fees - Can you win them?

Reasonable attorney’s fees can be won if the requestor wins the case. Even if the victory is only in part, attorney’s fees can still be awarded at the discretion of the court. If an agency fails to comply with an Attorney General order to release documents within seven days, attorney’s fees will also be awarded even before any litigation in court.

Exemptions and Appeals

What exemptions exist?

There are three categories of exemptions here. The first two make disclosure the discretion of the agency. They may exempt documents from being released but they must meet certain qualifying factors for this. The third category prohibits specified kinds of documents from disclosure regardless of what the agency thinks.

The exemptions themselves are standard and are designed to protect law enforcement investigatory methods, personal information, trade secrets, the work process, and homeland security. As always, it is a good idea to familiarize yourself with the exemptions and the language used. The RCFP is a great resource for this

A concern in Oregon is that it is becoming too easy for government agencies or industry groups to pass exemptions on subjects like the Oregon Beef Council or donors to public universities. Many Oregonians feel exemptions here need to trimmed down and the process of enacting an exemption more rigorous.

Do they have to tell you why a portion or pages were redacted or withheld?

Yes.

How much time do you have to appeal?

Unspecified.

Can you appeal to the courts?

Public records denials by a state agency, board or commission may be appealed to the Oregon Attorney General free of charge. Denials of requests for fee waivers or reductions may also be appealed. Denials by a local government such as a county, city, school district or special district must be appealed to the county district attorney. If an elected official, such as a mayor or a sheriff or a statewide elected official denies your request for public records, you cannot appeal to the Attorney General or a district attorney.

Resources

Organizations

Open Oregon

Attorneys and Law Firms

The following attorneys and law firms have practiced public records law. Names marked with an asterisk have indicated a willingness to offer pro bono services on a case by case basis.

There are currently no experienced public records law attorneys that we know of in Oregon. Write to us at info@MuckRock.com if you know of any and want to help us out!

Successful appeals

News Stories on Public Records Laws in the State

OR DOJ overturns fee requirement for certain agencies

OPRL to the test

Blogs and feeds primarily focused on public records in Oregon

Public Records Guide and Advice

State AG Public Records Guide

Open Oregon Guide

Newsletters

Let us know

Big FOIA wins

Have a public records success story? Let us know!